A consideration about #WTFU

Recently, Jim Sterling and many others have been making a lot of noise about Youtube's awful Content ID system, going with the slogan of "Where's The Fair Use". I fully agree with the sentiment, because that Content ID system sure is ill-thought out bottom of the barrel garbage.

But here's a thing to consider before you claim the content you made is "a clear-cut case of Fair Use".
Firstly, what is 'fair use' exactly? It's a copyright exception[1] which works only in certain circumstances. So an author has produced a work and you're using it without his consent. Following normal copyright doctrine, they get to tell you to stop. In certain circumstances you get to invoke the fair use exception, and continue using the work anyway without their consent.

Alright. That's not so hard. But most countries in the world don't have a fair use exception in their copyright law.[2]

Most countries do have a WIPO-compliant copyright law, so they have all kinds of other exceptions available to you. So if you're doing parody or criticism or research, you're generally going to be covered by some kind of exception in most countries, as those are really common. But trying to invoke fair use specifically does nothing in those countries, of course. It's not in their copyright law. And the exceptions they do have can have requirements different from those in the fair use exception.

Now you might think "Why should I care? I'm in the United States and so is Youtube, so surely US law counts." Well, not so much. It's pretty hard to decide which law is used in an international situation, and you quickly run into politics and treaties and all kinds of complicated stuff. But if you're using, say, Nintendo's works in a Youtube video, the aggrieved party is in Japan. One can also watch said video in Japan, so there's consumers of that product in that country. A Japanese court could easily decide Japanese law is applicable in this situation. And if it is, you could talk about fair use until the cows come home and it would avail you nothing.

Even if something would clearly be covered by the fair use exception in your opinion, that might not help you at all. In conclusion,

#Where's The Fair Use? Well, in the United States.
  Where are you showing your videos? (Also) outside the United States.

Just a little thing to keep in mind.


[1]So if they have a patent or a trademark or a databank right or whatever, fair use does nothing.
[2]Like the EU and Japan, for example.