There is some controversy about translation channels, and subtitle copyright is a gray area in international copyright. My channel in particular uses lots of videos reposted from other places.
No matter what anyone says, there is only one sure way to protect yourself from copyright infringement is by getting permission. I always attempt to reach out to the original creator to obtain permission. If I claim to be a translator, the language barrier should not be an excuse to stop me from contacting the creator. Crediting the author doesn’t give you the right to use their work. The only thing that matters is permission.
In terms of ownership, the copyright holder (which is the original creator unless they sold it) has the exclusive right to control distribution, alteration, and public display of their work. Even if a subtitler gets permission to post a video, they do not get any of those rights. So please don’t seek me for permission to repost videos, ask the original creator instead.
If you get permission, great! Contacting the artist directly by email or twitter is probably the surest way. Sometimes, the original creator will place some stipulations (such as only select videos). The copyright holder has the right to control distribution, after all.
Some artists and circles have announced their copyright usage policies through their website, profile, etc. There is a doujin circle safety sheet that tracks the usage safety of those artists and circle. If the safety sheet shows that the artist does want their work redistributed, then you cannot post to subtitle.
If the artist did not respond, or you cannot find their contact information, you could claim a “fair use” defense. Fair Use is a US legal doctrine, but does not exist in Japan, though they have some similar exceptions. Ultimately, YouTube is a US-based company and their terms of service includes Fair Use. Translation channels cannot rely on the stronger form of Fair Use protection such as commentary and parody. Instead, if you are unable to obtain permission for any reason, you have only these few weak justifications.
Fair Use Justifications (from 17 U.S.C. § 107):
As a subtitler, you should NOT be monetizing your videos. Note that being non-commercial does not automatically make it fair use.
- No Effect on Market Value
Probably the biggest factor of why even non-commercial usage is not fair use. You should only post videos that will not affect or compete with the user’s future profits.
- Transformative Purpose
By teaching the meaning of a work and making a video more accessible to a different audience of foreign and deaf people, your video technically has different purpose than the original.
However, those justifications falls apart under these conditions:
- If you monetize your videos, you are no longer non-commercial and are competing for profits.
- If the original video is already subtitled, you cannot longer claim transformative purpose.
- If the original video is monetized, you are competing for profit even if you are non-commercial.
Finally, if the original creator explicitly denies permission or requests a takedown, just give up. You will not have a strong enough case for fair use to defend yourself against their copyright claim. When someone requests me to take down a video, I will always do so even if YouTube will technically allow me to keep it. Japanese copyright law is different than US copyright law and I want to always respect the laws of the creator’s country.
Keep in mind that this is not legal advice. These are just a set of guidelines that I used to avoid conflict with the original creators so they can continue to keep producing content.