How to avoid copyright infringement

These days, content production requires only a few clicks. In fact, one can produce content by simply uploading a video on social media apps like YouTube and TikTok. This has led to the rise of digital content creators—individuals who produce content for a digital audience. Unfortunately, the accessibility that makes social media so attractive to content creators, also makes creators susceptible to copyright infringement.

Copyright is the legal protection given to people for their original works which may consist of literary, scientific, or artistic creations. A person who copies an original work without the consent of the copyright holder is liable for copyright infringement. To illustrate: If Person A shoots a video, the video constitutes an original work that is protected by copyright. As the copyright holder, Person A can freely upload this video to YouTube. A problem arises, however, if Person A uploads a video that contains elements that do not belong to him. Let’s say his video uses Person B’s composition as background music. If Person A posts the video without Person B’s consent, then he can be held liable for infringement.

There are many misconceptions when it comes to the issue of copyright infringement. Some may ask, can Person A escape liability by putting in “ctto” (credit to the owner) or “no copyright infringement intended” in his video? The answer is no. If at all, these attributions can only help absolve him of plagiarism—the act of presenting another’s idea as one’s own—which is a separate infraction altogether. Will it matter if Person B failed to obtain a copyright registration for his composition? Again, the answer is no. Under our law, literary and artistic works are protected from the moment of their creation.

Do these mean that Person (A?) committed copyright infringement? Not necessarily. There are defenses available to him, including the defense of fair use. Fair use has been defined as “a privilege to use copyrighted material in a reasonable manner without the consent of the copyright owner or as copying the theme or ideas rather than their expression.” Some of the uses that fall under this exception include criticism and research.

So, can Person A successfully invoke fair use? This depends on the circumstances. The court has laid down four factors in determining if fair use is applicable: a) purpose and character of the use, b) nature of the copyrighted work, c) amount and substantiality of the portion used, and d) effect of the use upon the potential market or value of the copyrighted work. To illustrate: A finding of fair use is more likely if Person A is not earning from his video. It is also more likely if Person A only uses a verse of a song than if he makes use of an entire song.

A finding of copyright infringement can lead not only to the termination of one’s channel, but also to harsher penalties such as the payment of fines and, in some cases, imprisonment. To avoid these, creators should exercise prudence in uploading content. It always pays to double check one’s video for any inadvertent use of another’s work. Should a content creator decide to use work that does not belong to him, he should obtain the necessary license.

In line with these, creators can also take advantage of tools that allow them to screen their video to see if it infringes upon the works of others. Some apps also have music and sound libraries which contain works that have been licensed for noncommercial and commercial use. Just because videos can now be shared with just a few clicks, it does not mean that all videos can, and should, be shared. After all, copyright laws did not go away just because society has entered the digital age.

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Mario C. Cerilles Jr. is cofounder of Cerilles and Fernan Intellectual Property Law. He also teaches intellectual property law at the University of the Philippines College of Law. Email: mccerilles@gmail.com