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Spotlight on fair dealing: Pakistani content creator’s YouTube video taken down and then restored
01 August 2024
On July 4, 2024, YouTube took down Pakistani content creator Shehzad Ghias’s video on his YouTube channel The Pakistan Experience.
The takedown stemmed from a complaint by Pakistani news channel Samaa TV, which cited reasons related to copyright. In the video, the standup comedian criticized remarks made by popular motivational speaker Sahil Adeem that 95 percent of Pakistani women are illiterate. Adeem uttered those words on Samaa TV. Ghias’s video also included a still from the TV show where Adeem gave the comment. Later during the day, however, the video was back on YouTube. No details were provided regarding its restoration.
Sana Shaikh Fikree | Counsel, Vellani & Vellani, Karachi
According to Sana Shaikh Fikree, counsel at Vellani & Vellani in Karachi, Ghias may have relied on the doctrine of “fair dealing.”
The Copyright Ordinance does not define “fair dealing,” revealed Fikree. However, Section 57 expressly exempts fair dealing of literary, dramatic, musical or artistic work for the purposes of research or private study and criticism or review from copyright infringement. Further, it protects fair dealing of literary, dramatic, musical or artistic work for the purposes of reporting current events in a newspaper, magazine or similar periodical, by broadcast, in a cinematographic work or by means of photographs.
“Without any definition of the term ‘fair dealing,’ it is difficult to provide any clear-cut answers as to what usage would be protected under the doctrine of ‘fair dealing’ and to what extent such protection could be availed,” said Fikree.
Since courts in Pakistan have not yet tested the scope of fair dealing under the Copyright Ordinance, guidance may be sought from international caselaw. “A review of such cases indicates that the question of ‘fair dealing’ is context-specific, and it will be difficult to provide a rigid test for ‘fair dealing’ which could be applied across the board,” Fikree explained. “A lot would depend on the nature of the work, the purpose for which the work has been used, length and/or substantiality of the portion used and the effect that the used promotion would have on the market value of the work.”
She added that content creators should familiarize themselves with the concept of fair dealing as provided under local law and as recognized in other countries. They must acknowledge the source of copyrighted material and use only a minimal portion of the material, or that part that is essential for the content creator to put his views across.
“While reviewing or criticizing the copyrighted material, the content creator’s analyses and views should be the star of the content and the copyrighted material should be used as a tool to put the creator’s point across,” Fikree pointed out. Moreover, it is important that the content creator aptly describes the purpose of the content to avail the doctrine of fair dealing under the copyright law.
- Espie Angelica A. de Leon
