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I am making a language learning website. One of the features I want on the website is a collection of videos that talk about various topics in the taught language, so that the members get to practice listening. These could be historical or factual topics, like World War 2 or chinese cuisine, or pop culture topics, like James Bond, Michael Jackson or Super Mario.

These videos would be of an informative nature, but their main function would obviously be to serve as material for language practice. To what degree could I defend the usage of copyrighted material, for example movie footage, in such videos as fair use? And would it affect the situation whether access to the videos was free or not?

EDIT: The website is operated from Norway.

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    You might want to state which country you live in, since laws differ depending on your location. E.g. in Germany this would be a copyright infringement no matter what, in the USA this might fall under Fair Use, but don't quote me on that ... – MoritzLost Jun 26 '15 at 23:50
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First let's cover the Norway Part...

Just because you are in Norway doesn't give you protection.

In 2007 Norway signed the TRIPS agreement which is comprehensive multilateral agreement on intellectual property. This agreement basically extended the powers of the Berne Convention treaty that established a basic standard of copyright protection.

Norway is covered under the European Unions Copyright Doctrine. You can read more about it here in an article titled "Copyright exceptions for teaching purposes in Europe": http://www.uoc.edu/in3/dt/eng/20418/20418.pdf

If your video is getting views in the U.S. then technically you are breaking U.S. copyright laws (unless you can prove fair use). It all comes down to whether a company or the government wants to go after you. But different international treaties allow other countries to sue (and/or arrest) copyright infringes in the U.S. and in turns allows the U.S. to go after foreign copyright infringements. http://www.ip-watch.org/2012/03/15/more-foreigners-find-themselves-targets-of-us-copyright-law/

This power is used everyday by adult film companies going after small foreign owned web servers.

Now let's cover Fair Use...

Fair use is tricky. Just because it's an educational site doesn't mean you automatically fall under fair use.

Fair use is in Section 107 of the U.S. Copyright Act. It uses 4 factors to determine fair use. These factors are:

  1. the purpose and character of the use,
  2. the nature of the copyrighted work,
  3. the amount and substantiality of the portion used, and
  4. the effect of the use on the potential market for or value of the copyrighted work.

Don't fall for bad advice that's all over the internet like "It it's educational it's legal" or "If it's a parady then it's legal." Not all parodies or educational products fall under fair use.

Also, courts in different jurisdictions have ruled opposite of each other for almost the exact same cases of fair use claims.

There are many nuances to Fair Use that only a lawyer can answer after seeing the finished product.

And don't forget that Fair Use won't stop you from getting a cease and desist letter or a lawsuit. It's only a defense. You may have to still prove your case in court and answer like "The content you used, was it the best image/video for your curriculum or did you choose it because it's popular and will increase your sales?", or "Did you use the minimum amount of copyrighted content to make your point, or did you let it run on to get more content into your product?"

Bottom line, it's up to the company that owns the copyright as to whether or not they want to pursue you. For instance, J.K. Rowling let a man run a website that was a Harry Potter Encyclopedia. She even said she liked the site. However when the man tried to turn it into a book, he lawyers came out claiming copyright infringement.

Final piece of advice... Stay away from using Mario Brothers. Nintendo is infamous for going after anyone using their content. They even go after people putting up positive reviews of their games on YouTube. Which is stupid because 90% of gamers make their buying decisions based off of YouTube videos. So Nintendo is suing people giving them free advertising. https://www.plagiarismtoday.com/2015/04/09/nintendos-copyright-blunder/

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  • This does not seem to match up with the user's situation. In all cases mentioned in the article you linked to, the reason that the foreigners fell under US copyright law was that they took actions within the US (I'll be it remotely). They either did business in the US or uploaded to US based servers. If you are hosting videos outside the US, with no business connections to US companies in relation to the material, I've never seen any basis of US law applying. – AJ Henderson♦ Jun 30 '15 at 19:07
  • The basis is that in 2007 Norway signed the TRIPS agreement which is comprehensive multilateral agreement on intellectual property. This agreement basically extended the powers of the Berne Convention treaty that established a basic standard of copyright protection. Plus, the fact that a single person has viewed it on a browser in the U.S. has been upheld to make it a U.S. copyright case even if the file was on a foriegn server. Many adult film companies like Vivid go after foreign servers daily based off these international copyright treaties. – FernoFilms Jun 30 '15 at 19:40
  • TRIPS doesn't appear to put people in other countries under US law, but rather just sets minimum standards for protection. Do you have an example of where it has been upheld that US copyright law applies, to the host, for someone who has no business or hosting in the US? – AJ Henderson♦ Jun 30 '15 at 19:51
  • I think we agree. There has to be a U.S. tie to be in U.S. courts or else the lawsuit takes place in the foreign jurisdiction. But a U.S. tie seems easy to find. Companies now are looking for any ties to make it a U.S. Jurisdiction case. Like the suit against the website Mygazines which had an address in Aguilla and the founder lived in Canada. They were sued in New York because their domain registrar had an office (one of many) in NY. Your ISP, Hosting Compay, Clients, Registrars, Advertisers, Employees, it's virtually impossible to have a site and not have something tied to the U.S. – FernoFilms Jun 30 '15 at 20:41
  • Sort of, in that case however, the suit was only to force the site shut down in the US. Not that it isn't still a complex minefield if it goes against US copyright law, but you can limit your exposure as long as it is legal in the jurisdiction that you are actually working. My primary disagreement was simply the argument that having a US person VIEW your content was sufficient to establish US jurisdiction. It has nothing to do with it. There are many other ways that various levels of jurisdiction might be established, but who views your site is not one. – AJ Henderson♦ Jun 30 '15 at 20:57
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According to this site, Norway does allow exceptions to author's rights for educational purposes, but it does not expand on what said requirements are. You should probably talk to a lawyer in your jurisdiction for up to date information on your local jurisdiction.

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