What is Fair Use, or Copyright Exceptions?

Fair use is a doctrine in United States copyright law, which also exists in some other countries, providing for several limitations and exceptions to copyright protection.  In some countries or other legal systems, there are similar concepts to fair use, namely, fair dealing, or copyright exceptions.  Although these concepts are not 100% the same, they are all designed to balance the rights of copyright owners with the public interest in accessing creative works.  Generally, this copyright exceptions principle allows for the use of copyrighted works without the permission of the copyright owners and for specific purposes, as long as such use is essential to the public’s rights to access information and does not unreasonably prejudice the legitimate interests of the copyright owner or conflict with a normal exploitation of the work.

The extent of this copyright exemption varies widely and depends on the laws of each country, as exampled below in relation to the corresponding regulations in the United States, the United Kingdom, the EU, and Vietnam:

 In the United States, in determining whether or not a use of a copyrighted work constitutes fair use, the factors to consider are (i) the purpose and character of the use, (ii) the nature of the copyrighted work, (iii) the amount and substantiality of the portion used, and (iv) the effect of the use on the potential market for the original work.  The fact that a work is unpublished shall not affect whether a use of this work is found fair use or not and such finding is only made upon consideration of the above four factors.

In the United Kingdom, fair dealing is one of the copyright exceptions that applies to research and private study, criticism or review, or news reporting. There is no statutory definition of fair dealing - it will always be a matter of fact, degree, and impression in each case.  Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair include (i) does using the work affect the market for the original work? and (ii) is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually, only part of a work may be used.[1]

Under European law, the solution is different, and the concept of fair use or fair dealing does not exist.  The different rules governing copyright protection are harmonized between the different member states through several directives and the most important of these are the Directive 2001/29/EC and the Directive 2019/790/EC.  Accordingly, under European law, in order to use copyrighted works, it is necessary to obtain the consent of the copyright holder, otherwise, the use of the work would be prohibited.  Nevertheless, in order to allow the use of certain works, the directive 2001/29/CE sets up in its Article 5 a list of exceptions allowing to use a work without having to obtain the consent of its author.  Among the main exceptions is the use of the work for quotation, criticism, review, caricature, or parody, provided that this use meets the criteria of reasonable use[2].  In addition, it is important to note that although the Directive directly provides for a list of exceptions, it also leaves the possibility for individual Member States to establish new exceptions that would not be provided for by the Directive. Moreover, each national court can interpret the different exceptions differently.

Similarly, to the European law, Vietnamese copyright law does not contain an explicit notion of fair use or fair dealing. Instead of regulating rules or criteria to determine if a certain act can be accepted as a copyright exception, Vietnamese law provides 11 circumstances of use of published works that will be considered exceptions for non-infringement of copyright (apart from the copyright exceptions specifically applied to disabled persons).  In general, these exceptions apply in case the uses are for personal purpose of scientific research or study, the use is citing of works for commentary/review, writing, and teaching, the use for the purpose of archiving in libraries or in public service activities of state agencies, the use of performing a theatrical work, musical work or other art forms during a cultural event of a non-commercial nature, and some other uses for the purpose of news production.  These exceptions only apply to the use of copyrighted works that have already been published, and these uses must not contradict the normal use of the work and must not cause unreasonable damage to the legitimate interests of the author or copyright owner.

TikTok film review – is it a fair use from a copyright perspective?

Nowadays, social networks and content creation platforms, and especially the short-form video hosting service TikTok, are home to a huge number of users.  Recently, the short-form “movie review” videos on TikTok are on-trend and the number of movie review videos published on TikTok is increasing rapidly.  According to TikTok’s record for the hashtag #moviereview is 2.3 billion views and this number is increasing every minute. In principle, copyright law applies to all content on the TikTok platform and users must ensure that they have obtained the necessary permissions or licenses to use copyrighted works in their creations. TikTok also has its own policies on copyright infringement and will, in theory, take steps to remove illegal content from the platform.  However, in practice, most of the movie review videos published on TikTok are made spontaneously by TikTok users, without any consent from the copyright owners of the reviewed movies.  Meanwhile, due to the huge amount of video uploaded onto TikTok every day, it appears that the platform is unable to censor all the content posted.  Therefore, TikTok is still the environment where many serious infringements of intellectual property rights (IP), especially copyright, take place every day.  

Back to the movie review videos, there are a lot of opinions from experts and film producers that these videos are serious copyright infringements. 

Considering the above-mentioned provisions regarding copyright exceptions, could it be argued that these movie review videos fall within the scope of copyright exceptions or fair use/fair dealing, since they can be considered to quote copyrighted works for comment or review for personal purposes? 

In fact, whether this act is viewed based on the specific requirements of the IP law in Vietnam, or the principles of fair use/fair dealing concept, it is not reasonable to classify these movie review videos into the scope of copyright exceptions.  These movie review videos often contain extracts of important scenes from the reviewed movies, and the analysis/comments from the reviewers only account for a very small part of these movie review videos.  Therefore, these videos are more of a summary of the movie’s content than a movie review.  In addition, although the duration of each video is very short, most of them reveal the most outstanding and specific content of the reviewed movies.  As such, these movie review videos may affect the experience of the viewers and make them no longer need to go to the cinema to see the original movies.  This obviously affects the right to the normal exploitation of these movies and causes unreasonable damage to the legitimate interests of the movie producers.

For example, recently, the content of the movie "Chi chi em em 2" ("Sister Sister 2" in English) and its iconic scenes were leaked on TikTok through several movie review videos, even though the movie has only been out for less than a week, negatively impacting the movie's revenue.

Conclusion

The example of a movie that has been spoiled through movie review videos on TikTok although it is freshly shown in the cinema is not a strange thing in Vietnam, however, up to now, it is not easy to handle these infringement actions.  Recently, many film producers in Vietnam have flagged that movie review videos on TikTok significantly affect their legitimate rights, and although the TikTok platform, has regulations on the protection of intellectual property rights, there is actually no really effective mechanism to protect the rights of filmmakers in this case.  To solve this problem, it is necessary to raise the IP awareness of users, as well as to have a stronger commitment from TikTok to copyright protection on its platform, and drastic actions from copyrights holders.

[1] Fair dealing https://www.gov.uk/guidance/exceptions-to-copyright#fair-dealing

[2] Directive 2001/29/CE article 5

Yen Pham

Trademark Head & Senior IP Attorney

[email protected]

+84 28 73 009 678

Duyen Nguyen

IP Consultant

[email protected]

+84 28 73 009 678