Livestreaming – have you considered copyright protection and infringement?
With the advent of an increasingly remote and/or hybrid work culture, there has been an increase in the use of various livestreaming platforms, including in relation to the viewing of business, organisational, cultural and sporting events. However, this may leave open the possibility of infringing on third-party copyright materials, or having the livestream material shared without copyright protection.
Knowing your rights and obligations under copyright laws is important, and we set out some key considerations below.
Copyright in livestreams
What is a livestream?
A livestream is the live transmission of a video through an online platform such as YouTube, Facebook, Twitch, or other streaming platforms. It requires the compression, encoding/decoding, and distribution of data. Viewers are not required to download any file prior to watching the livestream, as the video file is transmitted in real time.
Is my livestream protected under copyright?
Under the Copyright Act 1968 (Cth) (Copyright Act), copyright automatically arises in original ‘works’ created and expressed in writing or in other material form. Importantly, copyright protects only the particular expression of an idea as fixed in a tangible form, and not the idea itself. For copyright protection to be enlivened, the subject matter will need to comprise a ‘work’ under the Copyright Act. Generally speaking, copyright protection extends to the following types of works:
- literary works (e.g. books, articles, reports, compilations and computer programs);
- dramatic works;
- musical works;
- artistic works (including plans, drawings, photographs and buildings whether or not they are of artistic quality);
- sound recordings;
- cinematograph films;
- certain broadcasts; and
- published editions.
Generally, and in the absence of a contrary agreement, the author of the work will be the entity that first expresses that work, and the author will be the first owner of copyright that subsists in that work.
For a livestream, despite the fact that the video signal is transmitted to an audience through a film data stream and received on a device as audio-visual material, a livestream that only takes place online is not a ‘cinematographic film’ as intended by the Copyright Act, as it lacks the ‘expression in material form’ requirement. Material form for films includes any form of storage of the work, such a file in which the visual images or sounds comprising the film are embodied.
As such, generally speaking, no copyright subsists in a livestream that only takes place online. The only exception to this is if the livestream is a ‘broadcast’ within the meaning intended by the Copyright Act. Namely, a livestream created and delivered in real time to the public by a licenced commercial, national or subscription broadcaster under the Broadcasting Services Act 1992 (Cth) (Broadcasting Services Act), such as ABC, SBS, Nine Network etc.
This position was reflected in a 2014 decision by the Federal Court in Seven Network Ltd v Commissioner of Taxation  FCA 1411, in which it was held that the communication of data (that is not a material embodiment) to a receiver, cannot constitute a cinematograph film or broadcast under the Copyright Act. Therefore, for the purpose of copyright and broadcast laws, no protection is offered to livestreaming footage.
Despite this, a livestream that has been recorded and fixed into a tangible form is protected under copyright law, such as where the livestream is recorded and saved as a video file.
Third-party copyright infringement
While organisations can enjoy the benefits of livestreaming their activities, caution must be taken to ensure that third-party copyright materials do not appear in these videos.
Some examples of third-party materials found at various types of places/events are set out below:
|Place/event||Third-party copyright material|
|Theatre/dance performances||Music, choreography, and scripts|
|Public/personal events||Background music|
|Galleries||Paintings, photographs, and sculptures|
If third-party copyright materials are used in a livestream without permission of the copyright owner, then the entity responsible for the livestream will likely have infringed copyright, unless an exception applies.
With emerging platforms and software enabling livestreams to be created almost anywhere, keeping up with copyright laws is fundamental to ensure legal protection.
- livestreams are not protected under copyright laws unless recorded and saved as a video file, or created by a broadcasting service under the Broadcasting Services Act;
- for an organisation that engages in livestreaming, it is important to have in place an appropriate livestream policy, as well as a copyright disclaimer published alongside any uploaded livestream recordings; and
- creators also need to take care to ensure no third-party copyright material appears in their livestreams, otherwise they may be infringing copyright, unless an exception applies under the Copyright Act.
If you are interested in learning more, or require assistance with copyright in livestreams, a livestreaming policy, copyright disclaimer, or copyright in general including whether any exceptions to infringement may apply, please contact a member of our Digital & IP team.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.