The current discussions on licensing some live-streaming platforms seems to rely on rumours. Dangerous rumours that may lead users to “disguise” as ticketing services. Other may lead them to chasing safe harbour provisions. Some even suggest that if the ones uploading protected copyright works (to digital services) are artists or songwriters, there would be an exemption of liability by the platform. Last but not least, some stating that Article 17 of the 2019/790 Directive is not thereto applicable.
That is the problem about rumours: you can even follow them into hell. Hell in business, it’s the case, as if a live-streaming platform, which must abide by the legal framework, willing defies it (either directly because it wants to, or indirectly because it is advised to do so), it incurs in wilful infringement of copyright-protected works.
The room for interpretation (already heavily completed by CJEU case-law) as to what needs and what does not need an authorization from right holders or their representatives, concerning models such as the one of live-streaming platforms, is quite peaceful and leaves little room for discussion.
Either from Infosoc Directive or from the new 2019/790 Directive (with the controversial article 17) it clearly emanates that −was this already coming from Berne… I wonder− for each type of use, an authorization is required. The majority of live-streaming platforms understood that pivoting the live model for the online environment changed nothing as to the rights clearance implemented models, either through direct licensing or through CMOs and IMEs. Delivering to the end market live-streaming musical protected content implies an act of communication to the public or an act of making available to the public. It also can include (in some cases and specific models) rights of retransmission and even reproduction rights. This happens as such models give to the public access to copyright-protected works or other protected subject matter uploaded by themselves or by its users. While the majority of the platforms play by the book, there seem to exist (as said) some few defying the basic and fundamental structures of the exclusive rights model in which copyright international legal framework is based and the grounds to do so seem to rely on rumours.
There is a story about the Oil contractor who arrives in heaven, which door is crowded with Oil contractors. He tells Saint Peter that if he allows him in, he will be able to clean the mess. Accordingly, the Oil contractor shouts: “they seem to have found Oil in Hell”. Suddenly all the Oil contractors run to hell and that one is left alone with Saint Peter who says: “well, you deserve it, welcome to Heaven”, to which the Oil contractor responds “afterall I’m going to hell. If all the others went there, maybe we can find some Oil there”.
Following such rumours will not only mean that damages for infringement are right behind the door but also that (while licensing discussions drag in time) an enormous harm is being done to creators and artistic community by the ones wilfully using creative works as the fuel for their for-profit services. Something is very wrong here. Is it too difficult to understand that if you kill the singing birds, although you own the forest, the trees will be dead silent? Now that would not be a forest, it would be just wood. And pure wood is not something worth paying for to visit. Mutatis mutandis, things are simple as looking at the existing legal framework as the basis for a fruitful licensing relationship between users and rights holders, boosting revenue models for live-streaming platforms and allowing a fair remuneration to get to the artistic and creative sector.
David Serras Pereira – Licensing and International Manager at UNISON.