Fair Dealing Among YouTubers

A recent decision of the US District Court for the Southern District of New York regarding a dispute between “YouTubers” is getting a fair amount of comment, as it is one of the first cases of its kind regarding the use of YouTube video clips.  Ethan and Hila Klein who operate the YouTube channel H3H3 posted a video that criticized a video posted by fellow YouTuber Matt Hosseinzadeh.  The H3H3 video featured clips from the Hosseinzadeh video and Hosseinzadeh took exception to both the use of the clips and the comments that were made.   Hosseinzadeh sued the Kleins for copyright infringement and defamation.

U.S. copyright law contains “fair use” provisions. Criticism is one of the exceptions to copyright infringement that is considered to be “fair use”.  There was no question that the use constituted “criticism”, and the District Court Judge focused upon whether  the use was “fair”, so as to  fall within the “fair use” exception.  Large portions of the Hosseinzadeh video were used by H3H3.  However, the Judge was satisfied that this was necessary in order for H3H3 to comment and critique the Hosseinzadeh video.  The effect of the H3H3 use on the potential market for the Hosseinzadeh video was examined.  The Judge was satisfied that the H3H3 video was not a substitute or replacement of the Hosseinzadeh video.    In the end result, the Judge decided that the use by H3H3 was “fair use” and that, although critical, the comments H3H3 video contained were not defamatory, but merely “non-actionable opinions”.   It is to be noted that the fact the Hosseinzadeh video was a scripted and fictional creative work played a role in the Judge’s characterization of the critical comments as “non-actionable opinions”. The critical comments focused upon the fictional creative work and could not be construed as a personal attack upon Hosseinzadeh.

The question then becomes what is the comparable situation in Canada.  In Canada “fair dealing” is analogous to the U.S. concept of “fair use”.  Section 29.1 of the Canadian Copyright Act contains a provision expressly contemplating “fair dealing for the purpose of criticism or review” as an exception to copyright infringement.

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
It would appear to the writer that, as long as section 29.1 is complied with, the Canadian Courts would view these issues much as the U.S. Courts have done. In this context, it is no different than a television movie reviewer reviewing a move about to open in the theatres.   However, the Court will look at the quantity of video material taken to determine whether the resulting work is intended as or could be used as a “substitute” for the original work.  The Court will also look at whether the critical comments are “non-actionable opinions” on a creative work or constitute a defamatory personal attack.

In the writer’s opinion, even greater care must be taken if the video clips are not of a “creative” work, but rather of a serious video post expressing an opinion.  In such cases, taking too much of the serious video, could be viewed as a substitute for viewing the serious video.  Conversely, taking too little of the serious video could leave the opinion without support and out of context, thereby subjecting the person who posted the serious video to ridicule.  Also care must be taken to criticize the opinions presented and not include extraneous comments that could be construed as a personal attack. With the number of bloggers on the internet, one can expect more of these kind of conflicts to arise in future.  One way to gain followers will be to post commentary on video material posted by persons who may have more followers than you.  For example, many persons are presently becoming known on the internet by posting criticism of Donald Trump.