A lesson for vloggers

“The US judges considered the Four Factors of Fair Use, which is also observed in the Philippine judicial system in considering fair use: the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.” – Intellectual Property Office of the Philippines

Fair Use Doctrine is the often misunderstood set of rules and laws that govern use and reuse of intellectual property or created content. It allows, under select circumstances and to a limited degree, the rebroadcast or sharing of portions of owned content (not the entire content) for specific purposes such as news reportage, analysis or commentary, and should have the permission of the owner or creator of the content. Recently, a local vlogger violated this doctrine, and is now in hot water for multiple infractions. This is a real-life case study.

A young boxer, a national champion, had a title defense a few weeks ago. His management had negotiated for the broadcast rights to the fight at great effort and some expense. An independent content creator – a vlogger – asked if he could broadcast the fight on his personal YouTube channel. The rights holder politely told him he couldn’t, because it was going to be on mainstream television at a later date, and advertisers would be paying for it. The vlogger recorded the fight anyway. And after allegedly even sharing the post-fight meal and drinks with the rights holder, uploaded the video with his commentary the next day, anyway, despite being told that he was not allowed to. Of course, this public sharing ruined any chance of the rights holder to recover their costs, and constitutes stealing content. Worse, the vlogger insulted certain sectors of society in his illegal commentary of the fight. And needless to say, the video’s quality was atrocious.

Many vloggers justify their actions by arguing that they put a lot of effort into researching and editing the content they use to “help” athletes (particularly boxers and mixed martial artists) and make money. But to maintain the pace at which they do this, most of the time they don’t even bother to ask permission. At the end of the day, it is still not their content. It’s like saying you deserve to earn because you put a lot of effort into sprucing up a car that you stole. It’s still a stolen car. It’s still a crime. And just to clarify, even if you slap a “Courtesy of” label and name the source of the material, you are merely acknowledging the rightful owner. It does not mean that you have their consent to use the said material. You can still be forbidden or accused of piracy. For news outlets, the general rule is the reuse of up to 90 seconds of the actual material, with proper attribution and consent. This is why networks compete for sports content. This is why you see the likes of NBA and PBA games and professional boxing matches only on the networks that own their broadcast rights.

Consider this precedent. On Dec. 12, 1997, Luisito Espinosa successfully defended his World Boxing Council featherweight title in Koronadal, South Cotabato. The fight card was held a few hours earlier with the intention of driving the videotape of the fight card to General Santos City, and from there fly it to Cebu for it to be broadcast. However, due to unforeseen circumstances, the videotape did not make it to Cebu in time. Since newspapers already carried the results of the card, naturally, sponsors were reluctant to pay for the delayed telecast, and rightly so, since they were not going to get the exposure that was agreed upon. Espinosa could not collect his purse. In 2020, the Supreme Court ruled that Espinosa deserved to receive his purse of about P 6.6 million plus interest for all the intervening years. Now, 25 years later, he has yet to receive his compensation. Imagine all the trouble caused by the telecast being inevitably preempted by legitimate media (newspapers) doing their job. What more of a nuisance and economic loss would the same be, but intentionally done by an unauthorized, independent person unaffiliated with any legitimate media organization?

To make matters worse, other vloggers are now attempting to make it appear that their compatriot was in the right. Nobody has the right to steal intellectual property. Networks sue each other over this. Independent, untrained “content creators” who don’t answer to any media entity still have to follow the same rules, especially the laws of the land. No one is curtailing their right to make a living, but they don’t have the right to take content that was the product of someone else’s hard work and try to benefit from it. Stealing is stealing, no matter how you try to twist it. Having a large number of viewers or subscribers doesn’t make it right. Large crowds watch car wrecks and burning houses all the time. It doesn’t matter if you break the law. And it grants no extraordinary privileges. Renegades have to respect other content owners’ rights, and face the consequences when they don’t.