There has been published a very useful guide for consumers and for anyone who is curious about copyright. This guide explains different things, relating to IP rights, in simple way. The project has been commissioned by the European Union intellectual property office.
The Guide aims to give ‘answers to the most frequently asked questions (FAQs) average consumers have in relation to copyright for all twenty-eight EU Member States.’ The present Summary Report highlights the convergences and differences in national copyright laws in relation to the 15 consumer questions.
In terms of copyright law, the making and the uploading of a home video constitute two separate acts: the use of the music for the ‘home video’ necessarily entails at least an act of reproduction (1); the upload of the home video to a video platform also entails an act of communication to the public (2). In order for these different acts to be lawful, they must either be covered by an exception or limitation, or the rights holder must have authorised them.
The uploading of a home video that includes music protected by copyright could only be justified by exceptions or limitations in certain Member States, and only under specific conditions. In Spain, Cyprus, Luxembourg, the Netherlands or the United Kingdom (within fair dealing), the quotation exception could be applicable if certain conditions are met.
In the United Kingdom, for example, the exception may not apply if the amount taken of the work is excessive, and if the use is non-transformative and commercial. In Spain, the music would have to be used – to the extent necessary – in a specific scene of the video, and for purposes related to it, ‘assuming that the homemade video may be considered for purposes of research or teaching’.
Under certain conditions, the parody exception could be applicable in Spain, France, Croatia, Luxembourg, Hungary or the United Kingdom (within fair dealing). In order for the exception to apply, the home video must qualify as a parody under the relevant national law. In Hungary, for example, ‘the essential characteristics of parody are, first, to evoke an existing work, while being noticeably different from it and second, to constitute an expression of humour or mockery’.
In Cyprus, the use of the musical work may be considered fair dealing if the purpose of the derivative work is criticism or review or reporting current events. In Malta, a consumer may use parts of music or recordings protected by copyright, as long as the amount of music he or she uses is not ‘substantial’. In certain, very limited cases, the ‘education exception’ may be applicable in Malta.
A consumer could avoid infringing copyright if the upload does not constitute a communication to ‘the public’. A home video could be uploaded to a video platform only if non-public access to it is possible, that is to say, only if persons that are inside the usual circle of a consumer’s family or the circle of his or her personal acquaintances can see it.
Should none of the abovementioned conditions be met, the only way in which a consumer can lawfully use music protected by copyright for a home video to be uploaded to a video platform is with the rights holder’s authorisation. Authorisation may be granted by the author directly by, for example, a Creative Commons Licence. Alternatively, authorisation could be sought from the relevant collective rights management organisations (CRMO), for example, the ones responsible for music and for the music producers.
In practice, authorisation may have been granted to the video platform. Users are advised to check the terms and conditions of the website. Finally, consumers could choose music that is in the public domain, that is to say, music that is no longer protected by copyright. However, the performance might still be protected by a related right; as one expert has noted, to be safe, consumers should therefore play the music themselves.