In Short
- You can copy a video idea, but not the video itself: Copyright protects the expression of an idea (the video), not the idea itself. Using a video trend or concept is not infringement, but copying substantial parts of a video without permission is.
- Fair dealing allows limited use: You may use copyrighted content under fair dealing exceptions such as criticism, news reporting, parody, research, or professional advice.
- Creative Commons licenses offer flexibility: Some YouTube videos are licensed for reuse. Always check the terms before using or editing another creator’s work.
Tips for Businesses
If you create content on YouTube, ensure you understand copyright rules before using someone else’s footage. While ideas are not protected, copying substantial parts of a video can lead to infringement claims. Fair dealing allows some use of copyrighted content, but always credit the original creator to respect moral rights.
With the extensive range of videos on Youtube, it can be confusing to understand when the overlap of content might become copyright infringement. For instance, is it legal to ‘borrow’ a video idea from another YouTuber in your YouTube videos? This article explains whether copyright law allows you to copy a video idea from YouTube.
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Does Copyright Protect a Video Idea?
For a creative work to be protected by copyright, it must fall under a subject matter recognised by the Copyright Act 1968 (Cth). YouTube videos are likely to come under the category of cinematographic films. However, they may also fall into other copyright categories, such as musical works.
Copyright law protects the expression of ideas creatively rather than the ideas themselves. So, although a YouTube video may fall under a subject matter protected by copyright, the idea for the YouTube video is not protected. Rather, copyright protects the expression of the idea, namely through a video.
It is worth noting that in Australia, copyright protection is automatic and lasts for the life of the creator plus 70 years. This means that even older works incorporated into YouTube videos may still be under copyright protection.
How Do You Determine Whether There Has Been Copyright Infringement?
You are infringing copyright when you use a substantial part of a work without the owner’s permission. In the context of YouTube, you cannot use footage from another YouTuber that constitutes a ‘substantial part’ of their video. It is a common misconception that you can use 10% of a work without infringing copyright.
However, courts determine substantiality in qualitative terms rather than quantitative. To determine whether the footage you use is a substantial part of someone else’s work, consider how central it is to their video. You will likely be infringing their copyright if you use an important, essential or distinctive part of their video.
Continue reading this article below the formAre There Fair Dealing Exceptions?
As with any rule, there are exceptions to copyright protection. In Australia these are known as ‘“fair dealing” exceptions. You could use footage from other YouTubers without committing copyright infringement if it falls under one of the following fair dealing categories:
- criticism and review;
- reporting news;
- parody and satire;
- research and study; or
- professional advice.
Courts will also consider whether the use is fair. ‘Fair use’ is determined based on the circumstances of the case. Namely, how much content was copied and what loss the copyright owner suffered.
Criticism and Review
Criticism and review involve evaluating the characteristics of copyrighted content. For example, using clips from YouTube videos to comment on the camera angles and special effects could fall under this exception. However, you cannot rely on this exception if your video has hidden motives, such as commercial gain or anti-competitive behaviour.
You must also give ‘sufficient acknowledgement’ to the author, so you must at least identify the author of the content and give them credit for it.
Reporting the News
Reporting the news involves using copyrighted content to display something of public interest. For example, if you use a YouTube video in your blog to inform the public about a recent newsworthy event, you can rely on this exception. However, reporting the news must be the primary objective of your blog.
Parody and Satire
You can use copyrighted material without permission from the owner for parody and satire. To rely on this exception, you must make a satirical statement about the content rather than reproducing the material in an ironic, satirical tone.
Research and Study
You can use copyrighted material for research and study if you use the YouTube video for a ‘diligent and systematic enquiry or investigation into a subject’. However, you can only use a ‘reasonable portion’ of the video.
What is reasonable is determined in the context, considering elements such as the:
- purpose of the use;
- nature of the work; and
- effect on the market.
Professional Advice
If you are a legal practitioner, registered patent attorney or registered trade mark attorney, you can use copyrighted material to give professional advice or as part of judicial proceedings.
Moral Rights and Attribution
In addition to copyright, Australian law also recognises moral rights. These include the right of attribution (the right to be identified as the author of the work) and the right of integrity (the right to prevent derogatory treatment of the work). When using content from YouTube videos, even under fair dealing exceptions, it is important to properly attribute the original creator to respect their moral rights.
Creative Commons and YouTube
Many YouTubers choose to license their content under Creative Commons licenses. This allows for more flexible use of their work. When a creator marks their video with a Creative Commons license, they are effectively granting the entire YouTube community the right to reuse and edit that video. In Australia, these licenses operate alongside copyright law.
For example, if a YouTube video is licensed under Creative Commons Attribution (CC BY), you can use, remix, and build upon the material for any purpose, even commercially, subject to the terms of the license.
Key Takeaways
Copyright law protects the creative expression of ideas, encouraging people to produce new content. If the content is subject to the protection of copyright law, the owner will have exclusive rights to the content. Copyright only covers the creative expression of an idea, not an idea itself. Therefore, you can copy a video idea from YouTube without infringing copyright, but you cannot use substantial clips without permission.
If you have any questions and want to speak to a copyright expert, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Copyright law protects the expression of an idea instead of the idea itself. Therefore, if someone has seen your trend and uses it as inspiration to create their own video, it is unlikely that this would be copyright infringement.
Fair dealing refers to instances where copyrighted material can be used without constituting copyright infringement. These exemptions exist for the purposes of criticism and review, reporting news, parody and satire, research and study, or professional advice.
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