The coronavirus pandemic continues to rage globally. What initially seemed to be a temporary suspension of daily activities has now turned to be the norm. Given the imposed social restrictions, people are unable to attend social events such as music festivals, sporting events and religious processions. This has resulted in the use of live streams as an alternative way of hosting and attending these events albeit within the social restrictions. In Kenya for instance, organizers such as Trace TV and Multichoice have collaborated with local musicians to conduct online concerts that are streamed through social media pages.

A live stream is the simultaneous recording and broadcast of online media in real time to allow viewers access to content using their devices i.e. smartphones, computers, televisions etc.[1] Examples of live streams include services offered by social media platforms e.g. Facebook Live and other sites that allow viewers to access live events whilst interacting with the host.

Although live streaming was already relatively popular, the onset of the current pandemic has rendered it the dominant means of conducting social events. Given the general ease with which copyrightable materials can be broadcasted, copied and/or reproduced online, conducting live streams pose the risk of facilitating infringement en masse. In this regard, this post attempts to highlight the implications of the dissemination of copyrighted works through live streams. It should be noted that various social media platforms have different terms and conditions for using their live streaming features. We may not exhaustively list or discuss these terms and conditions in this post.

Inherent Risks

Live streams, unlike other means of content dissemination, pose significant risks to right holders. Live streams, by their very nature, diminish the degree of control that the host user has over the works contained therein. The inherent risks in this regard are two-fold. First, they are available to all users who opt to tune in. While social media platforms allow host users to limit their audience to those within their networks e.g. friends and followers, the hosts still lack any means to control how their content is used by these account holders. Those within their networks may re-share/re-broadcast, copy/download the works which the initial host user may not be able to control.

Second, streams may still be available to other users even after the end of the live stream. This is because live streams upon their conclusion are commonly converted to recorded on-demand videos available for replay. While the host may opt to delete the subsequent video, this does nothing to prevent other users from making their own digital recordings or copies during the actual stream.

Noting the nature of the mode of broadcast i.e. online transmission and the risks above, platforms offering live stream features require, as a precondition, the cessation of certain rights to the content. This blogger presents three different ways through which rights in the content of a live stream are ceded i.e. through licenses, implied waivers and implied sublicenses.

License and Implied Waiver

Posting content online in any form automatically grants the platform service providers (SPs) open ended and unlimited licenses. The terms of service of certain platforms (particularly social media sites) usually grant the SP a royalty-free, non-exclusive, irrevocable, worldwide license over the posted materials i.e. to host, use, modify, publicly perform etc.[2] These licenses subsist whether or not the user retains any intellectual property (IP) over the materials posted. By virtue of accepting a platform’s terms of service, the users relinquish the rights related to the above actions over any materials they post on the platforms.  

The very act of live streaming is an implied waiver of rights. The deliberate act by a rights holder to conduct a live stream containing their copyrighted works impliedly waives their rights in the performances unless they expressly communicate otherwise. For instance, when an artist (owning the copyright to a song) conducts an online performance through a live stream, their acts may be interpreted as being an implied grant of related digital rights to their audience.  This is more so where the performances remain on the platform after the live stream and there are no express disclaimers.

This blogger refers to this an ‘implied’ waiver as it is inferred from the actions of the host user. While the SP’s license affects all the rights expressly set out, the waiver can only affect the rights that are reasonably inferred to have been waived. In other words, the host by making their work readily available to others through live stream, is adjudged to have waived some rights i.e. the right to exert control over its access.[3]

A host user cannot claim infringement/compensation from a user who tunes in to their live stream for private use. They may however sustain a claim where such works are used for commercial purposes since they did not authorize the same. We draw an analogy from the case of a museum. While a museum cannot have a claim against entrants who simply view the displayed items, it may sustain a cause of action against visitors who take pictures or videos of such items for commercial purposes.[4]

A subsequent question that may follow is, what happens when a social media account holder is a commercial entity by itself which then, as a platform user, accesses and distributes works availed through a live stream. Is this private use or commercial use justifying compensation? Most importantly, to whom will this compensation be payable, the host user or the platform noting the latter has the abovementioned licenses?

For commercial entities, it would seem difficult for their (sharing) acts to be deemed to be private uses. First, these entities often command sizeable followings on these platforms. Any material they share may thus end up being accessed by a large number of users. Additionally, these entities usually use their social media pages to promote their products or their brand. As such, they always stand to generate direct or indirect revenue from sharing popular content.[5] Regarding compensation, it would follow that compensation ought to be made to the owner whose rights are infringed. In such an instance, it would be the host user since they generally retain IP rights over the content, they post subject to the exceptions set out in the license granted to the SP.[6]

Sublicense

A sublicense is a secondary license granted by the original licensee to a third party forspecified rights or uses of a product.[7] In this case, a sublicense would arise where an SP, under a license with the host user, allows all other account holders access to the host user’s content. While no such term is currently found in most user agreements, it may be necessitated by the very nature and purpose of these platforms i.e. the free flow of information. Practically, platform users need to have some degree of freedom in accessing and sharing other users’ works without risking infringement. YouTube in its terms of service, expressly provides that each user grants licenses to other users to access their content. In the absence of such an express term, subsequent use and access have to be addressed through an implied sublicense.

This blogger thus theorizes that SPs impliedly grant sublicenses to all users under their own (original) license. This view finds support in the fact that SPs commonly reserve the right to conclude sublicenses under the ‘head’ license.[8] In addition, platforms such as Twitter and Facebook expressly provide that the (original) license grants them the right to make the user’s content available to others. Moreover, these platforms have functionalities such as ‘retweet’ and ‘share’ which allow a user to repost on their timelines materials already shared by another user on the platform. This implies a sublicense between the platform and their users allowing such exploitation of the posted materials.

Lastly, there is some precedent for implied copyright sublicenses. In the US Court of Appeals’ decision in Photographic Illustrators Corp. v. Orgill Inc, the Court recognized that a copyright sublicense can be implied by conduct without the need to be set out in express language. The court held that a sublicense may be implied by the conduct of the sub-licensor and sub-licensee where the head licensor grants to a licensee the unrestricted right to sublicense and permit others to use a copyrighted work. Drawing parallels to live streams, the host grants the SP a license under which the latter has an unfettered right to sublicense and to allow other 3^rd party users to access the said works.

In the case of a live stream, the parties to the sublicense are:

1. the account holder hosting the live stream who grants the original license to the SP under the terms of service;
2. the SP which after obtaining the original license goes ahead to grant a sublicense to all other users; and
3. other users who by virtue of the sublicense obtained from the SP, are entitled to certain rights in the host’s live stream.

For the content of a live stream e.g. a musical piece, infringement would occur where other users use this content for commercial purposes such as by making a recording and offering it for sale. The original licenses do not allow the SPs to make direct commercial use of the materials. Sublicenses reflect the head licenses and cannot grant rights not available in the original or head license. Therefore, other users as sub-licensees are limited to the uses contained in the head license i.e. private non-commercial uses of the works in a live stream.

Live stream hosts as infringers

One common issue that often arises is where the host user is an actual or potential infringer. In this instance, infringement would occur where a host user directly includes copyrighted content e.g. playing a song, video clip on his/her live stream without the necessary permissions from the owners. In most instances, the automated copyright control tools embedded in these platforms will detect the presence of protected works and take down the full live stream. See this piece for further discussion.

Aside from this, other less notable instances where conducting a live stream may unknowingly infringe on the rights of others include public performances of copyrighted works. This may particularly affect copyright owners who have transferred such rights to 3^rd parties such as record labels or publishers. This phenomenon has been particularly prevalent in the COVID-19 era. Where such rights vest in 3^rd parties, even the author of the work has to obtain the permission to perform such works. Simply put, when an artist who has transferred their economic rights to a record label/publisher, performs their song on a live stream as part of an online concert, without the latter’s consent, they will be liable for copyright infringement to the song. The affected rights could include public performance, digital rights and broadcasting rights to the works.

In certain cases, the organizers of such events assume the responsibility of obtaining necessary licenses. A good example of this is the ‘One World: Together at Home’ series of online concerts organized by Global Citizen which reportedly followed the requisite rights clearing procedures.[9] However, there is still a danger that some artists may conduct live stream performances through their social media accounts in the absence of express permissions. Admittedly, we are yet to see any instances of reported cases in this regard. Nonetheless, this may become a pressing issue in the near future given the increasing importance and popularity of virtual performances among fans, artists and labels during the current pandemic.

In conclusion, regardless of whether labels/publishers choose to enforce their rights or not, it is always prudent for artists to take precaution by obtaining the necessary consents from the respective rights holders before conducting a live stream.

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[1] Spring Forest Studio, What is the difference between live streaming and live broadcasting at https://www.springforeststudio.com/single-post/what-is-the-difference-between-live-streaming-and-live-broadcasting/  Additionally, a live stream, in technical terms, is the real time and continuous transfer of digital data, in audio or video form, usually intended for immediate viewing by the viewer. See https://www.merriam-webster.com/words-at-play/what-does-live-stream-mean.

[2] See the Terms of service of popular live streaming platforms such as YouTube, Facebook and Twitter.

[3] This is similar to placing works in the public domain where the owner makes their works available to others without renouncing all or any rights thereto. This way they have no control over who or how the works are accessed.

[4] Subject to compliance with the museum requirements e.g. entry fees. Photography in most museums is restricted even after payment of the entry fees.

[5] Such sharing may grant an entity greater publicity thereby indirectly promoting its brand or products.

[6] Under most platforms’ terms, account holders retain ownership over the content they post. Whilst the account holder cedes some rights to the SP under the license, these terms expressly provide that the license does not affect the user’s ownership of their content.

[7] Sublicense, definition at https://www.dictionary.com/browse/sublicense

[8] See the rights retained in the Terms of Service of YouTube, Facebook and Twitter

[9] S. Knopper, Licensed to Stream? Clearing Rights Can Be Tricky In the ‘Wild West’ Livestream Age, at https://www.billboard.com/articles/business/9364171/livestreaming-artists-licensing-issues-clearing-rights-publishing-coronavirus

 

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