Intellectual Property and YouTube Strikes: The Nuances

In modern times, social media has evolved into a major medium of expression. Initially developed as a tool to connect people and divest from the traditional challenge associated with socializing, i.e. geographical divide, social media today is a dynamic workplace. People have succeeded in monetizing social media and have also succeeded in evolving newer avenues of employment and skill development. The traditional concerns of social media, i.e. entertainment has diversified and encompasses areas as wide as education and healthcare. With such large quantum of content being actively produced by content creators, intellectual property (IP) related issues frequently face them.

A content creator is an individual who is responsible for contributing certain information in a public domain in a particular context. However, when we discuss about social media influencing and the specific legal issues associated with such work, we encounter certain common dilemmas, such as those regarding copyright strikes on YouTube and IP related concerns while using third party content in a creator’s own offering. The most common issue is regarding the IP Laws associated with music and video excerpts from popular shows or movies of the yesteryears. These concerns however, don’t just present legal concerns but also present unique financial problems for creators while also impacting the overall experience of the viewer. This article attempts to present a rough overview of all relevant provisions of Indian Laws which govern intellectual property related matters in the usage of copyrighted material by content creators on YouTube, however, the discussion is not exhaustive and is certainly reflective of only a rudimentary understanding.

Major Concerns:

  1. Copyright applies to almost all music and video content available for consumption by the public and their usage is protected under the provisions of the Indian Copyright Act, 1957 (ICA). Copyright in music creations endows exclusive right of ownership on the producer. This right is inclusive of the right to distribute and reproduce the work. Under Section 52(1) j of the ICA, specific uses of the work, such as modification of the same also require the copyright owner’s consent. It provides for a legal license which requires the person using the music work to pay the necessary fees to the copyright-holder. Through its judgements, the Supreme Court of India, in Gramophone Co. of India Ltd v. Mars Recordings Pvt Ltd and Anr., wherein the copyright holder sued a company that recorded songs of which they owned the copyright after having sent a formal request for permission for usage of the copyrighted material, following the provisions laid down under Section 52(1)(j) of the ICA, held that it is not necessary to obtain assent of the copyright holder before using the musical work in their creation when the conditions laid down under Section 51(1)(j) have been satisfied.
  2. Further, moral concerns relating to the usage of copyrighted material are also pertinent. Under Section 57 of the ICA, moral rights of the author are defined.

In the words of the Statute,

Author’s special right.

(1) Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right——

(a) to claim authorship of the work; and

(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation: Provided that the author shall not have any right to restrain of claim damages in respect of any adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies. Explanation.—Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.]

(2) The right conferred upon an author of a work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representatives of the author.

It was held by the Delhi High Court that the author’s moral rights are the ‘lifeblood of his plant’ and it is his right to conserve, guard and develop his works, whether they are entirely or partly protected by a copyright. Registration of a copyright for a work of music doesn’t only protect the copyright but also functions as a protection against theft of the work.

YouTube Copyright Strikes:

A copyright strike is issued against a user by YouTube upon the submission of a legal takedown request submitted to YouTube by the copyright holder. It is often followed by the video being taken by the YouTube Administrator in order to comply with Indian contract laws. Further, multiple copyright strikes also result in the activation of a notice period, i.e., a period of 7 days, within which the owner of the particular channel is supposed to prove his innocence, in the absence of which the channel is often subjected to deactivation. It was reported at multiple junctures that YouTube creators faced difficulties with regard to frivolous copyright claims filed manually with YouTube even for a few seconds of usage. After receiving such adverse claims, YouTube introduced new editing tools such as ‘Mute Song’, ‘Replace Songs’ etc. to safeguard the content creators from copyright-related legal complexities.   

Further, YouTube has addressed the growing concerns of copyright violations by various musicians and other parties by introducing an intelligent copyright-protection technique called content-id, which is assigned by the YouTube algorithm to the works of the copyright holder. Under the content-id system, the YouTube algorithm is empowered to independently check for items or content that might violate the Intellectual Property Rights of the content-id holder.

The policies followed by YouTube to regulate violation of copyrights through content uploaded on the platform are based on the provisions enshrined under the Digital Millennium Copyrights Act, 1998 (‘DMCA’). Compliance with the rules and regulations established under   DMCA are essential for the ‘safe harbor protection’ endowed upon YouTube.

Need for Awareness:

YouTube, as a platform allows monetization of a channel only when it complies to the “Advertiser Friendly Guidelines” prescribed by YouTube. The primary source of income is also through advertisements. This entails major repercussions on a content-creator if confronted by a copyright-strike, as it can harm the channel’s monetization adversely and overall jeopardize the financial prospects of the channel. This makes it essential for the users to be aware about the copyright related guidelines available over YouTube, which are compliant with the DMCA. Under the provisions of DMCA, a content creator is entitled to file a counter-notice and can also dispute a content-id match. Since the success of a content creator is centrally dependent on the viewership of his post, reuse of the content prepared by him shall amount to major nuisance to the individual. Further, a creator getting copyright strikes as a result of lack of knowledge shall also amount to grave losses. Thus, awareness of the basic laws and legal remedies available is essential for all.   

Hrishikesh Goswami


Hrishikesh Goswami, a second-year student pursuing BSc LLB(H) from Gujarat National Law University.

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