YouTube: Copyright Strike And Visual Rights Group

[AnotherVictimSad]

Hey guys - I'm new to the forum after reading posts by AndyJ (Much appreciated, sir!),

I recently uploaded a video to my YouTube channel, talking about yachts, in particular ones owned by Bill Gates. (I did not edit the video myself, and a few extra video clips were added).

A few hours after this video was uploaded, I received a copyright strike from YouTube for a 3 second clip that was used in my video. Following this, i was prompted to message the owner of the clip, which I did, to resolve the dispute. They are from the Netherlands and immediately prompted me to pay 250 EUR to remove the strike and resolve the dispute, or they would forward the case to Visual Rights Group, who I know have a reputation of being, let's say, parasitic, to be generous.

I have a couple questions about the process and what I should do from here and any help would be greatly appreciated.

1. This 3 second clip is part of an over 6 minute video, talking about the range of Yachts owned by Bill Gates. The original audio from the clip was removed, with our copyrighted background music being added, alongside a voiceover detailing the different yachts, making it very similar to traditional 'Top 10' videos that can be seen on the platform. I made no money from the video (My channel is monetised but no proceeds were awarded due to the speed of the strike), the clip in question was clearly transformed as part of a larger narrative, and reports on current events. Under UK law, would I not be covered under 'Fair Use'? I did mention this with the content owner via email, however, they have told me that their 'About Us' section features a snippet of text that eliminates fair use entirely.

2. I'm all in favour of copyright owners receiving their due payments, but 250 EUR seems extortionate. They have told me they do not offer licenses for their content, however, 250 EUR will cover the breach. I did, however, then ask if they license on a 'case by case' basis, as I was curious how they reached this price, to which I was met with a response of 150 EUR per photo/video as their price. Would this amount be the primary cost that would be chased in court, despite how speculative it is?

I'm from the UK, too.

Thanks!

[AndyJ]

Hi AVS,

Welcome to the forum.

It's hard to say, without knowing the exact context, whether section 30 CDPA would cover your use. But that would only apply under UK law. Since the copyright owner is based in the Netherlands, they could opt to sue there, in which case EU law as incorporated into Dutch law would apply. The relevant parts of the Dutch Auteurswet (in Dutch) are Articles 15 and 16a, and both of these are based on Article 5 of the EU Information Society Directive.

Section 6 The limitations on copyright
Article 15
1. It shall not be regarded as an infringement of the copyright in a literary, scientific or artistic work to use news items, miscellaneous items or articles on current economic, political or religious topics or works of the same nature which have been published in a daily or weekly newspaper or weekly or other periodical, radio or television programme or other medium that has the same function, if:

• 1o the use is made by a daily or weekly newspaper, a weekly or other periodical, a radio or television programme or other medium that has the same function;
  2o the provisions of Article 25 are observed; [Article 25 asserts the right for the creator of the work to be credited by name]
  3o the source, including the name of the maker, is stated clearly; and
  4o the copyright is not expressly reserved.

2. The reservation meant in the first paragraph sub 4o cannot be made with respect to news items and miscellaneous items.
3. This Article shall also apply to use in a language other than the original.

This is then supplemented by Article 16a

Article 16a
It is not regarded as an infringement of the copyright in a literary, scientific or artistic work for the short recording, showing or presentation thereof in public in a photographic, film, radio or television report, provided that this is justified for giving a proper account of the current event that is the subject of the report and provided that the source, including the maker’s name, is stated clearly as far as is reasonably possible

So in both UK and Dutch law the matter of whether there has been infringement revolves around whether the use you made of the clip represents a valid instance of reporting current events, and if an adequate credit to the copyright owner was given. It is perhaps significant that Article 5.3c of the EU Directive is much more restrictive in its wording, namely the reproduction of "published articles on current economic, political or religious topics". Under this definition, your use would not be seen as an exception to copyright.
And then there is the de minimis rule. This says that certain very trivial uses of copyright works are not suffuiciently importnat to justify a court's time in hearing the dispute. What constitutes 'trivial' tends to vary according to the jurisdiction and the nature of the work in question. For example a 3 second sample of music would almost always be considered significant enough to litigate over, whereas a 3 second clip from a full length feature film probably wouldn't.

I hope that gives you some idea of the legal landscape. Of cource I can't guarantee that either the copyright owner or, if they get involved, the Visual Rights Group, will be receptive to these arguments. It is worth stating as I often do, that this matter is unlikely to ever get near a court of law, especially as you have already been sanctioned by YouTube.

[AnotherVictimSad]

Hi AndyJ,

Thank you so much for the detailed response, it's greatly appreciated!

I've seen your previous posts regarding similar matters and thus, was about to lodge a counter offer, the price of which I was planning on basing from similar video clips (Not their self-admitted 'case by case' valuation), which I believe is around £41.99. This is just to 'play ball', so to speak.

The clip is 3 seconds taken of drone footage that the copyright owner has added music to, transformed to meet the narrative of the video I published. Looks like I may be covered under this de minimis rule, which I had no idea existed so I thank you greatly for that.

While I'm in agreement that this is unlikely to go to court, do you know if there is a similar ruling in Dutch law regarding the IPEC small claims instance, where the maximum recoverable amount would be the license + court fees + loss of earnings and travel?

Thanks for your time!

[AndyJ]

As far as I am aware, the Netherlands has no direct counterpart to the IPEC Small Claims Track. Smaller claims (that is, under € 25,000) can be heard in the District Courts, but among their powers is the ability to award legal costs and reasonable expenses incurred by the winning party, in addition to damages. As might be expected, Dutch law follows the lead given by EU law, in this case the EU Directive on The Enforcement of Intellectual Property Rights (IPRED), specifically Article 14 of that Directive:

Article 14 Legal costs

Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.[/url]

[AnotherVictimSad]

Much appreciated AndyJ, thank you! I've just replied to the copyright owner asking for a breakdown of costs, to which they did not reply, and instead sent a rather threatening email, mentioning that 'I am in no place to dictate terms', and that if the 250 EUR is not paid, I must 'negotiate the terms with the lawyers of Visual Rights Group, which I can assure you, are not that gentle. The deadline for you to decide is next Wednesday 30 November 2024 at the latest.'

I've submitted a counter-offer as mentioned in my previous post, but I can see this being rejected rather quickly before the case is escalated to the Visual Rights Group.

(As I was typing this they have replied, indeed declining the offer - I will stand on my counter-off and wait for the dreaded email from the Visual Rights Group thugs). Will keep this thread updated!

Edit: Is there any way to determine which jurisdiction the Visual Rights Group would sue me in? I'm aware that they can do so in the UK and the Netherlands, but am I right in thinking that they would be more likely to do so in latter, due to the Dutch laws that will (almost certainly) appeal to them more?

[AndyJ]

The first thing to say is VRG can't sue you. Only the copyright owner has the right to sue. On your other point, I think you are right that the Dutch court is the most likely choice because of the better prospects of an award of legal costs. However, a judgment by a District Court in the Netherlands could not be directly enforced hee in the UK, now that we are no longer in the EU. To achieve that, the copyright owner would then need to get an enforcement order for damages etc from a UK court. This would add delay, expense and uncertainty to the process. In the meantime the copyright owner will have had to pay his own legal costs, and be desparately hoping you will be forced to re-imburse him at some later stage. However, the UK court may allow you to pay in installments if you are unable the pay the full amount in one go.

[AnotherVictimSad]

Hi AndyJ,

Thank you for the facts and reassurance once again. I did actually end up revising my offer to cover the license, which is 150 EUR, despite them pushing for 250 EUR fee, which seems arbitrary. Hopefully this is accepted or, at the very least, puts me in a strong position should litigation happen, as I've essentially offered them the entire 'damages' payment to settle outside of court.

Armed with the information I am now more aware of, I'm more than happy to stand on my reasonable counter offer, or face the wraith of VRG, who will receive the same offer should they make contact (Plus their 20% fee, I suppose).

Will keep this thread updated with the outcome.