Assessing the impact of derivative works: Evidence from the removal of music video parodies on YouTube

Published on: Author: Ruth O'Donnell Leave a comment

School of Law colleague and member of CREATe, Dr Kristofer Erickson last week presented research at the University of Illinois and Loyola University Chicago. He also met with faculty at John Marshall Law School in Chicago to discuss potential collaborations between CREATe and the Center for Intellectual Property, Information & Privacy Law. John Marshall has offered an IP concentration for nearly 80 years and is consistently highly ranked as one of the top Law Schools for IP in the midwest.

Kristofer Erickson (left) with Professor Daryl Lim (right), Director of the Center for Intellectual Property, Information & Privacy Law at John Marshall Law School, Chicago.

This visit to the USA was organised by Professor Paul Heald, and funded by the IP program at the University of Illinois. The topic of Dr Erickson’s presentation, which builds upon research with colleagues Martin Kretschmer and Dinusha Mendis, funded by the UK Intellectual Property Office, was ‘Assessing the impact of derivative works: Evidence from the removal of music video parodies on YouTube’ [download slides]. The project examines music rightsholder behavior by analysing factors contributing to takedown of parody videos from YouTube. The new paper includes data about the takedown rate from our original sample, added in 2016 by CREATe collaborators Sabine Jacques and Morten Hviid at the University of East Anglia. The public lecture took place at Loyola University School of Law on Friday 15th September.

About the talk:

The ability for rightsholders to request removal of allegedly infringing content from online platforms – commonly referred to as ‘notice and takedown’ – is provided in the United States under Section 512 of the Digital Millennium Copyright Act (DMCA) and in Europe under EC Directive 2000/31 (Electronic Commerce Directive). Broadly, notice and takedown procedures place a burden on rightsholders to detect and take action to request removal of potentially infringing material, with associated costs. Rightsholders must make an economic calculation about which works from their catalogue to monitor and which potentially infringing uses to pursue with a takedown request.

In this paper, we investigate the actions taken by copyright owners to seek the removal of potentially infringing derivative works, using an original dataset of 1,839 music video parodies on YouTube collected in 2012. At the intervals of January 2013 and December 2016, we re-examine the dataset to determine which videos have been taken down during the intervening period. We identify the overall rate of YouTube takedowns in the initial wave (15.5%) and subsequent wave (23.2%). Based on human-assisted content analysis of the commercial and user-generated videos, we analyse a range of factors that may predict the likelihood of a takedown notice in our sample.

Overall we find that content based on rights held in the EU was subject to a slightly higher rate of takedown than those originating in the USA, suggesting that the ‘fair use’ concept does have an impact on takedown frequency. Apart from (1) territory, we find that significant predictors of takedowns are (2) the presence of a copied sound or video recording in the parody video (detectable by an automated identification process), and (3) the level of skill apparent in the production of the parody, with low-skill parodies taken down more frequently. Public concerns raised by rightsholders, such as negative reputational effects caused by inappropriate use, including potential moral rights infringements, do not appear to predict a takedown. Neither do commercial popularity (substitution) nor tone of content (the critical stance of the parodist toward the original work) trigger a significant response from rights holders. The counter-intuitive findings from this investigation prompt reconsideration of the factors that actually concern rightsholders: is there more than copyright to the pattern of music industry takedown requests?

~ Dr Kristofer Erickson

Dr Erickson is a Lecturer in Intellectual Property at the School of Law and a member of CREATe.

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