Fair Dealing & YouTube: A Guide To Copyright Exceptions

YouTube frequently makes headlines when high-profile creators are banned for violating their policies. Creators can be banned for reasons such as spreading misinformation or posting inappropriate content.

But it’s not just celebrities who can face YouTube’s enforcement actions. Copyright infringements lead to regular users receiving copyright strikes, being banned, having content removed, or being demonetised. Copyright laws in New Zealand can be intricate and it’s easy to trip us up.

Understanding copyright can be particularly crucial in the realm of digital content creation, and seeking legal clarification early could prevent significant issues later on.

Anyone using YouTube to share their content should be aware of New Zealand Copyright laws and the concept of ‘fair dealing’ exceptions.

If you’re a New Zealand YouTube user looking to understand why YouTube may remove your content, suspend your account, or ban you, keep reading.

Copyright In New Zealand

Copyright protects people’s original work, ensuring that someone’s original work cannot be shared or used without their permission. New Zealand’s copyright laws are governed by the Copyright Act 1994. It can be quite perplexing!

Fortunately, you don’t need to know all of copyright law to produce content on YouTube without breaching it.

The main points you need to know are:

• Copyright is automatic; you do not need to register your work for copyright to apply.
• Copyright will apply to any original work.
• Copyright only expires on original work after a considerable period. Depending on the type of work, copyright duration will differ:
  • Broadcasts: year of broadcast + 50 years
  • Films and sound recordings: year published + 50 years
  • Artistic, literary, musical, dramatic works: life of creator + 50 years
• Copyright protects how you present an idea, not the idea itself.

With so many people expressing ideas on YouTube in a unique and original way, it is clear why copyright is such a big deal on the platform.

This article mainly focuses on fair dealing, but if you want to learn more about copyright laws, we’ve got you covered:

• The Difference Between Trademarks And Copyright
• Infringing Copyright
• Registering Copyright
• Copyright Licensing Agreements
• Protecting Your Ideas With Copyright

Exceptions To Copyright

Copyright does not apply to original content without exceptions. In the Copyright Act 1994, there are various exceptions that will result in an original creator not being able to enforce copyright if someone uses or distributes the content.

‘Fair dealing’ is one of these exceptions, and it is crucial for YouTube creators because, in limited circumstances, it allows you to use other people’s content for your own videos. Fair dealing applies to any user of copyrighted material, distinguishing it from other exceptions in the Copyright Act 1994, some of which apply only to specific people or entities.

This is why the fair dealing exception is particularly relevant to YouTube users.

Fair Dealing

Fair Dealing allows you to use someone else’s content for several distinct purposes:

1. criticism or review,
2. parody or satire,
3. reporting news,
4. research or private study,
5. education.

This section will run through the kinds of material that the exceptions can apply to and the specifics of each exception purpose.

What Kind Of Copyright Material Do The Exceptions Apply To?

The first four exceptions (research or private study, criticism or review, parody or satire, and reporting news) only apply to the use of certain types of copyright material.

These are:

• Literary, dramatic, musical, and artistic works.
• Adaptations of the above works.
• Audio-visual items, for example, movies, recordings of sound, and other broadcast material.

Research Or Private Study

You are allowed to use a reasonable portion of copyright material, without permission, for the purposes of research or private study. Factors that could be considered in determining if the use is fair include:

• The purpose of using the copyright material, i.e., is the purpose to make a profit?
• The nature of the material you are using.
• The possibility of obtaining the material through payment.
• The effect of using the material, i.e., will the material be devalued because you are using it?

However, the primary consideration is the amount of the material you are using. Therefore, you should be mindful of how much of the material you are using as a proportion of the entire work. For example, if you use the majority of the chapters of a book or the majority of a sound recording, this likely won’t fall under the fair dealing exception.

Criticism Or Review

You are able to use a portion of copyright material, without permission, for the purposes of critiquing or reviewing it.

So if you are running a movie or book review channel on YouTube, you can show or quote excerpts of the material. However, you must be clearly engaging in the act of critiquing or reviewing the material.

If using copyright material for the purposes of criticism and review, you must also properly acknowledge the original creators.

Parody Or Satire

Similar to criticism and review, parodying or satirising copyright material is also allowed without permission. The use of the material needs to be closely related to the act of parodying or satirising.

A key distinction of parody and satire from comedy is that it mocks something to make a comment about it or society more broadly. For example, this clip and the channel more broadly are using clips from movies for the purposes of satirising the plot and the movie-making industry. This would come under the fair dealing exception for parody and satire.

Reporting News

If reporting on events that are happening or have happened and using copyright material to do so, you do not need permission from the original creators. However, the use of the material cannot be incidental to the reporting of these events. Ensure whatever content you are using is necessary for the purpose of reporting on current or historical affairs!

This exception also requires you to give proper acknowledgement to the original creators of the content.

Education

This exception allows educators to use copyright material without permission for teaching purposes. It is important that the use is fair and for educational purposes within an educational setting.

Fair Use VS Fair Dealing

Fair use is a concept similar to New Zealand’s ‘fair dealing’ and is used in other international contexts, such as in the US. Because of this, fair use is often confused with ‘fair dealing’. However, they differ slightly, and New Zealand law does not contain any ‘fair use’ provisions. Therefore, it’s important to understand how this may impact a New Zealand YouTube creator.

Fair use is more flexible than fair dealing because it does not restrict the copyright material to be used for specific purposes. Instead, fair use requires an examination of why the material is being used, the nature of the work, the amount of the material used, and the effect of use on the material. Generally, use will be deemed fair if it is not an attempt to profit from someone else’s work or if using the work would devalue it.

Fair dealing is stricter. If the purpose of the work cannot be categorised under the listed purposes, then it will likely be in breach of copyright.

Still Unsure?

Fair dealing can be complex and may feel quite restrictive compared to fair use. However, if the use of copyright material is disputed, it should be assessed on a case-by-case basis.

If you’ve got questions about YouTube legals, our lawyers can help you navigate any issues you may be having, or advise you on how you can stay compliant with New Zealand copyright laws.

Get in touch with us at [email protected] or on 0800 002 184 for a free, no-obligations chat.

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