The COVID-19 pandemic has forever changed the way the world consumes entertainment. Live streaming platforms such as Twitch, YouTube and Kick, are quickly becoming more and more popular and are gradually catching up with classic television channels in terms of viewership. It is estimated that approximately 67% of people are consuming more television/ videos than prior to the pandemic and watching live streams during the pandemic have moved the viewing habits of people from linear platforms to digital platforms. This exponential growth has resulted in more and more people trying to create a brand/ make a name for themselves by creating content including live streaming content on popular streaming platforms.
What is Live Streaming?
Live streaming is the real time transmission/ broadcast of information over the Internet in the video format. The primary distinction between live streaming and video content available online as the video files are in real time and not pre-recorded and/ or stored prior to it being transmitted to the audience. Live streaming therefore offers real time interactions and exchanges between the content creator and his/ her viewers, which occurs through a live chat feature on the streaming platform.
Legal Issues In Livestreaming
There is currently a lacuna in law in the context of the regulatory framework in most countries and live streaming as the extant regulatory framework in most countries does not adequately cover the realities of live streaming.
Some of the issues that a streamer may face while live streaming content includes the following:
• Music and Video: All music in a live streaming may result in an infringement claim if permission hasn’t been procured prior to utilizing the said music. This includes procuring permission/ consent for any music that may be playing in the background. In the event of any unauthorised broadcast of music, steaming platforms may mute that portion of the live stream as all streaming platforms have policies/ guidelines regarding streaming copyrighted material without any permission. Equally, unauthorised streaming videos are protected by copyright and unauthorised streaming of videos may result in freezing/ blocking of the video or replacement of that portion of the video with a placeholder image.
This becomes a much larger issue when streamers attempt to live stream sporting events as broadcasting rights for major sporting events are in almost all cases sold exclusively to a single broadcaster for that region. Consequently, a live streamer who is broadcasting a sporting event to a global audience may face several issues in relation to infringement;
• Releases: Depending on your jurisdiction, you may require approvals/ releases from any individuals appearing on the live stream basis the local jurisdiction laws on privacy. It is therefore pertinent that streamers procure the relevant permissions from guests who appear on their livestream;
• Logo/s Brands: While parodies or editorial uses may come within the ambit of fair use in certain jurisdictions (basis the applicable law), unauthorized use of brand names and/ or logos may also result in issues if the requisite authorizations have not been procured;
• Defamation Issues: Live streaming may also result in defamation issues for the live streamer in case of any factually incorrect statements made that are not corrected during the live stream; and
• Video Games: As more particularly detailed in our perspective in “An Analysis On Copyright In The Live Streaming Of Video Games ”, live streaming of video games has its own unique legal challenges due to lack of clarity in the space.
In certain jurisdictions, some of the challenges faced by live streamers as listed above may be resolved by utilising the doctrine of ‘fair use’, as more particularly set out our perspective in “An Analysis On Copyright In The Live Streaming Of Video Games ”. Other methods of mitigating the risk while live streaming include obtaining relevant licenses from performers rights organisations or directly from the content creator before re-streaming or only utilising short clips of streams for commentary under fair use (if applicable in the relevant jurisdiction) – not entire re-streams. In this regard, it is pertinent to note that there is typical a higher burden of proof when monetising content under the defence of ‘fair use’.
While a live streamer may face several challenges while live streaming content, it is also crucial for a live streamer to protect his/ her own copyright content. Some of the risks of live streaming may be mitigated by registering any intellectual property created by the live streamer prior to the live stream. This enables a live streamer to seek damages in case of any infringement. A live streamer may also implement visible watermarks to help identify the content owned and created by the live streamer. Copyright takedown notices may also be issued against other streamers who have exploited content without authorization.
Conclusion
While live streaming has revolutionised the way the world accesses and consumes media content, it is crucial to understand the implications of infringement within this context. Unauthorised live streaming may have serious legal, financial, and reputational consequences. Unauthorised live streaming further disincentivises content creation and may event result in financial losses to the content creator.
Further, addressing infringement claims through legal means is costly and time consuming for all parties involved. Streaming platforms that allow the unauthorised distribution of content also acts as a disadvantage to legitimate content creators that adhere to copyright laws.
Author: Aneesh Tendolkar