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Weird Wings over Scotland row: a win for Google

Screenshot

This screenshot actually is fair dealing for the purposes of reporting news and current affairs

WINGS OVER Scotland is an often-controversial online operation promoting independence for Scotland. On 28 July it announced, under the headline "The State flexes its muscles", that its YouTube "channel" had been taken down. The outrage that followed serves the interests only of those who benefit from utter, abject confusion over what copyright is.

WoS, finding that another channel had also been suspended, jumped to the conclusion that "what appears to have happened is that the BBC has suddenly gone on a crusade against pro-independence sites".

It rapidly transpired that the BBC had objected to WoS posting an unauthorised copy of a BBC video. WoS fulminated:

Which is to say, it was an interview WITH ME from Sunday Politics Scotland. The BBC has had YouTube shut down my entire channel for supposedly infringing its copyright by posting a video of myself. This story gets madder and madder.

Er, no. The video belonged to the person who shot it. If they were an employee of the BBC, ownership instantly transferred to the Corporation. If they were freelance, they were almost certainly compelled to assign it to the Corporation to get the gig.

It's not hard. Copyrights in these portraits of Billy Connolly belong to John Swannell and to Donald MacLellan (unless they've assigned them). Not to Billy. You may think this is about you, WoS, but it belongs to me. And so on.

WoS went on to claim that the clips were "published in full accordance with the fair-use exemptions of copyright law", linking to government advice that makes clear that there is no such thing in the law of Scotland (which in this respect is identical to the law of England and Wales).

That advice states:

Criticism, review and reporting current events

Fair dealing for criticism, review or quotation is allowed for any type of copyright work. Fair dealing with a work for the purpose of reporting current events is allowed for any type of copyright work other than a photograph. In each of these cases, a sufficient acknowledgement will be required.

This "fair dealing" is very different from the US concept of "fair use", which boils down to "use it and see whether the person whose rights you've infringed can take it to court - which can cost them $1 million to go all the way."

Whether posting an entire news report is "fair dealing" is an interesting question. Does it "interfere with the normal exploitation of the work"? That's a key test for whether a use is "fair dealing". Note that if the report includes any still images, copying it is clearly not fair dealing. The advice helpfully goes on:

As stated, a photograph cannot be reproduced for the purpose of reporting current events. The intention of the law is to prevent newspapers or magazines reproducing photographs for reporting current events which have appeared in competitor's publications.

WoS filed a counter-complaint and at the time of writing the BBC video was still on YouTube.

It seems possible, at least, that the Corporation will leave it out now, following a media storm. Much reporting apparently took WoS's view of the matter at face value.

Alex Salmond, until recently Scottish National Party Member of the UK Parliament for Gordon and before that First Minister of Scotland, wrote to the BBC to demand that the Corporation prove it "is not pursuing a campaign against sites which support Scottish independence" and to complain that an interview with him had been removed: "If memory serves, this news interview now removed from YouTube was a challenge from me to the then prime minister to debate on Scottish independence. It has now disappeared from the public record thanks to the BBC action."

It is true that there is no news of any complaint about BBC videos on the Scottish Conservatives' YouTube channel. Who knew they had one?

The BBC position is that it acts to protect its copyright "whenever we receive complaints about large volumes of our material being posted or used without authorisation". It told the Scotsman: "This action is normally limited to asking for individual videos to be removed and the BBC did not ask or demand for these whole channels to be taken down."

YouTube is, of course, under the same ownership as Google. US law indeed requires it only to remove a particular infringing "work" such as the video in question. Taking down whole channels is easier and cheaper - and there can be little incentive to invest the time to do it right when the effect of wholesale takedowns is to sow confusion about copyright, even among politicians who should know better, furthering Google's campaign to weaken it.