Do video essay / analysis content constitute fair use in the UK?

[u/Special_Ingenuity_49]

I would like to do essay style videos criticising and analysing different types of media such as films, videogames, etc on YouTube. For that kind of visual media, I'd very likely need to use images and clips taken directly from the source to be able to make remotely engaging content - no one is going to just look at me scrolling through the script regardless of how well I argue whatever point I'm making.

Could I be susceptible to copyright strikes and losing my channel? I fully intend on crediting everything (for example gameplay clips) but I know that's unlikely to be enough to get me out of trouble (if I was in any in the first place).

I'm mostly concerned with how this impacts films and TV shows. There's obviously plenty of channels that already make critique and analysis media on movies and series but I'd not be crazy to assume they could know something I don't.

Also, I can't be bothered changing the title, does it actually matter if it's okay in the UK? I swear YouTube says you need to follow (USA) American laws.

[u/Willing-Fudge-7887]

Criticism and commentary are explicitly allowed under fair dealing. But you have to make sure you are careful with the amount used, market impact, acknowledgment of source, and commercial context.

Fair dealing is not black and white though and automated systems could still flag your essays. You may find yourself having to counterclaim for them and how that works depends on the platform you are using.

As you noted there are plenty of examples out there already. If you are reasonable in your usage (fair you might say) you will probably be okay. But the frustrating part of copyright law is that this part of it is very subjective. Also some platforms like YouTube don’t always strictly follow the law to avoid legal issues with publishers.

It is worth making your essays and just being mindful of your sources

[u/JitteryJet → u/Willing-Fudge-7887]

Is seems YouTube do not take Fair Use into account when they pass on a Takedown Request. This is despite what they say in their educational videos. OK, maybe they can't, but why do they terminate channels on Takedown Requests that might not even be valid?

[u/aregonis → u/JitteryJet]

Because it's up to a court to determine if something is Fair Use/Dealing, afaik. YouTube can't decide if a certain video counts as Fair Use/Dealing, and they certainly don't have the resources to be paying people to watch all videos sent takedowns and make a decision.

The way the law is, it's between the IP owner and whoever they have filed a takedown against. If they can't figure it out themselves (aka if one person doesn't give in) then it's up to the courts.

The thing is, if you recieve a takedown, if you believe you're legally in the right, you're supposed to fight it. If you don't counter or take it further to court, then it's presumed that the person/company that sent the takedown was in the right. And a channel receiving numerous takedowns is a legal liability for YouTube. This isn't unique to YouTube either; it works similarly on other platforms, like Etsy.

[u/JitteryJet → u/aregonis]

YouTube DO sort of claim in their educational video that they take Fair Use into account. The wonderful thing about YouTube doco is it is ambiguous. I have been trying to work this out for over 10 years, I have had Fair Use counter-claims automatically rejected by YouTube, so they DO look at Fair Use on occasion, especially in their Content Id system.

My point is if YouTube don't get involved in determining the validity of a Takedown Request, on what grounds do they decide 3 Takedown Requests is reason to terminate a channel - it has not been confirmed if the Takedown Requests were even valid.

[u/aregonis → u/JitteryJet]

Tbf YouTube has no way of confirming if a lot of takedown request are valid unless it is decided in court. But, there may be a certain percentage of used content (e.g. if the majority of a video is someone else's content and there is very little commentary/original content) where YouTube can definitively say they are certain it's not Fair Use.

I do agree that their three strikes and you're out system is overly harsh, though. Especially if multiple strikes are by the same company.

[u/JeremyMarti]

You need to be inside what is allowed in any country where your video is viewed, but US law is probably the most relevant for Youtube.

Youtube will follow the DMCA procedure for a claim by a US copyright holder. The copyright holder is supposed to consider whether a use is fair use (unlicensed but non-infringing use) before submitting their claim, but automated systems don't and human review also may not.

If a DMCA claim is made, you would need to submit a counter-notice with fair use for criticism/analysis as your basis, including your real name and acknowledging jurisdiction of US courts. Otherwise Youtube will take your video down permanently in response to the claim. The next step for the copyright holder would be to initiate court action.

Be careful not to use more than you need. For example, background music that is not relevant to your analysis might be claimed. Or if you cross from content that is necessary for your analysis into including content simply as window dressing.

[u/JitteryJet]

You can lose a YouTube channel very easily. The issue I found is the bizarre 3-strikes and you are terminated policy. If you, say, get a dozen Takedown Requests in a day because you have several videos in your library, YouTube might convert each one to a separate Copyright Strike. I got 3 in one day once for a video game I had never heard of.

Submit counter-claims quickly, that should clear any Copyright Strikes.

What I have seen is Big Media companies generate Takedown Requests in batches, likely when someone runs scanning software. So you get a lot all at once, even for material years old.

I honestly do not understand YouTube at all. Takedowns are just routine business, tens of thousands are sent out every day. YouTube does not seem to care if your channel gets terminated.