Copyright law is traditionally considered one of the most universal areas of law, with most countries and legal systems recognising and affording legal protection to creators of original works (from pictures to music, books, movies and videos) irrespective of their value.

Copyright law is also notoriously difficult to enforce and monitor.

The widespread use of social media and other websites and the ability to create and disseminate new content around the world brought with it a new set of legal challenges.

One such challenge is that of a website streaming live videos.

What are the legal and copyright law implications of streaming live events and videos via one’s website?

What are the legal implications of reproducing videos and content that is already readily available to the public at large through other websites (e.g.  YouTube).

Copyright Protection of Online Content

In the European Union (“EU”) copyright protection of online content is governed by the provisions of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and the relevant implementing national legislation (the “Directive”). The Directive aimed at harmonising copyright laws across the European Union and bringing national up to date with the digital era.

Art. 3 (1) of the Directive is of particular interest and provides as follows:

“Right of communication to the public of works and right of making available to the public other subject-matter

1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:
3. (a)  for performers, of fixations of their performances;
4. (b)  for phonogram producers, of their phonograms;
5. (c)  for the producers of the first fixations of films, of the original and copies of their films;
6. (d)  for broadcasting organisations, of fixations of their broad- casts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
7. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.”

The Directive was implemented into Cyprus law in the Copyright and Related Rights Law of 1976 (Law 59/1976).

Live Streaming: The Catchup Saga

The European Court of Justice (“ECJ”) examined and provided valuable guidance on the Directive.

The ECJ, in the seminal ITV v TV Catchup saga (ITV Broadcasting Ltd and others v TV Catchup Ltd, Case C-607/11, March 2013) and in response to a reference from the UK’s High Court for a preliminary ruling, ruled that Art. 3 of the Directive extends copyright protection to works and content in a live TV broadcast and that the streaming and retransmission of such works via third party’s websites requires the consent and authorisation of the original broadcaster.

As such, websites streaming live TV programmes require content distribution agreements with the relevant broadcasters. This is so even if the users of a website are able to lawfully receive and watch the TV programme on their TVs.

The ECJ, relying on previous case law on the matter, reiterated that the profit-making nature of a transmission (in this case streaming of live TV programmes) was not irrelevant but also not essential in finding that there was a ‘communication to the public’ within the meaning of Art. 3 of the Directive.

Comment

The ECJ in the TV Catchup saga gave a quite broad interpretation to Art. 3 of the Directive and the idea of a ‘communication to the public’ affording TV broadcasters of live events the right to prohibit retransmission of their programmes, even if these are broadcasted live, as they take place.

The court characteristically noted that the idea of a ‘communication to the public’ should be interpreted broadly as the Directive’s aim was to ensure a high level of protection to authors and creators of copyright protected works.

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