YouTube icon with semi-automatic weapons

Early last week I was reading about the unexpected turn taken by a notice – one of the hundreds of thousands or millions such notices sent/received every day, asking for a YouTube content takedown. The title of the article had correctly pointed it out: Record Label Picks Copyright Fight – With the Wrong Guy. It spoke about the threat to sue, which Liberation Music had issued against Lawrence Lessig, who had illustrated one of his lectures with the video of Lisztomania – over which the company holds rights.

Beyond the inferring smiles of those who understand that legal action taken against the most prominent advocate of fair use cannot be left unanswered, it must be said that, just as surprisingly, the notice in question was completely (clearly, evidently, and beyond the shadow of a doubt) unfounded. The use of works for educational purposes or for critique is exempt from copyright protection. At global level.

You Can Fight Back: What happens when a fair use advocate gets threatened

Yet the article reminded me of something not many are aware of – namely, the fact that an unfounded notice grants one the right to legal action against the initiator of the original action. Such an action can be successfully submitted on the grounds of abuse of rights. This even applies in Romania, especially if we take into account that the new provisions of the Civil Code have removed the purely procedural element, from the perspective of which this concept had been regarded by doctrine and jurisprudence.

[quote_left]No right can be exercised with the goal of damaging or prejudicing another, or in an excessive and unreasonable manner, against good faith.[/quote_left]

The new provisions no longer address the concept of abuse of rights exclusively from its procedural perspective, but regulates it as applicable to any form of notice or accusation, including notices and takedown requests addressed to YouTube and similar platforms, which, in bad faith, aim to limit the right to fair use as warranted by currently enforced legislation.

Article 15 of the new Civil Code tackles the very situation in which a notice aims not to protect copyright in its legally warranted form – i.e., within the bounds of, and allowing for the exceptions of fair use – but aims to misappropriate the very socio-economic finality of this interest and right, by giving rise to a situation of excessive protection, to the detriment of the public in general and of the user in particular.

“No right can be exercised with the goal of damaging or prejudicing another, or in an excessive and unreasonable manner, against good faith”. One variant of such an excessive and unreasonable manner may be sending this kind of copyright notifications, which are most often automatically registered by user-generated content platforms, and which materialize as content takedowns, in removing the public communication in question. This, in fact, translates into the impossibility to use works for educational, critical, or illustrative purposes.

The general prejudice can be conceptually debatable, since it involves a discussion of the detriment against culture, brought on by making access to existing works impossible. The personal prejudice, on the other hand, is rather easy to argue for, as taking down content and depriving someone of their right to access pre-existing works makes for a clear disadvantage. The inflicted damage is all the more obvious, since the person in question also has limited access to education.

We keenly await the ruling in the case initiated by Lessig, since, according to the expectations, a precedent will certainly be created – hopefully, one in favor of limiting the abuse committed by copyright holders.

This article is released under a CC-BY-NC licence: you are free to copy, distribute, transmit and adapt the work for non-commercial purposes.

Translation by: Ioana Pelehatăi | Illustration by: Alex Lungu (derived from: Richard Pasqua)