31 May 2021

Are my Live Streams Copyrighted?

I want to be Insta-Famous dahling!

If you are anything like me, you are obsessed with makeup tutorials. I absolutely love watching someone transform their face. It’s an exhilarating watch. The actual “doing” part of the tutorial is however not always as easy as they make it look #justsaying

Looking at myself in the mirror the other day, I thought – “I could do that!” I could do a full makeup tutorial and show everyone how I get that perfect red lip that I (in) famously wear. All. The. Time.

So I set up my phone and start recording. Initially only as a test run. But just before I could get going….. a notification popped up on my screen – Bailey Sarian has started a live video.

Live video?! What the?

Not only did I have to brave the world of filming myself very carefully putting on my red lips without my hands shaking or voice cracking (or doing that high pitch voice thing – no idea why). I now had to brave the world of live-streaming. Nuh uh. Not ready for that. Yet. I felt ill-prepared.

So whilst watching Bailey’s video on The Mysterious Black Dahlia Unsolved Case – Who Could Have Done It?! Mystery & Makeup (well obviously I had stop everything to watch), I began to wonder….

I mean, Bailey’s videos are unique and her makeup tutorials are interesting and very different. Plus her makeup is on point.

If I want to get anywhere in the makeup tutorial live-streaming world, I seemingly needed to be like her – but obviously different and unique. And in my own way.

And that got me “wondering” some more – How do I protect the character I devise and the content I create? How do I protect myself from others stealing my look? Stealing my ideas? And sharing my video’s wherever they deem fit (wait, isn’t that the point?)…?

My (sort of) “aha” moment came when I (regretfully) realised that the only logical way to answer my “wonderings” (and therefore the perfect place to start), is to look to our Legislation for answers. 

Yes, these are the “legal bits”. I hear a collective “Sigh” – “Why can’t there just be a simple answer?” I hear you. But please bear with me. This stuff is important.

So, let’s start off with some basics like – What is a Copyright, What makes up Intellectual-Property, How is “broadcasting” defined in South Africa? And How does this all relate to Live-Streaming?

  • What is a Copyright?

According to the Information and Communication Technology Services, a Copyright is –

“a set of exclusive legal rights given to the author or creator of an original work – that includes the right to copy, distribute, adapt, perform and display the work in public. The work itself does not necessarily have to be unique. The owner of the copyright to the material has the right to copy, print, and distribute their work. Anyone else who wants to reuse the work in this way has to obtain permission from the owner”.

Turning to the Copyright Act 98 of 1978 and to the Information and Communication Technology Services website certain classes or categories of works are eligible for copyright in South Africa and include –

  1. literary works e.g. books and written composition novels;
  2. musical works e.g. songs;
  3. artistic works e.g. paintings and drawings;
  4. cinematograph films e.g. programme-carrying signal that has been transmitted by satellite;
  5. sound recordings;
  6. broadcasts e.g. broadcasting of films or music;
  7. programme-carrying signals e.g. signals embodying a programme;
  8. published editions e.g. first print by whatever process, and
  9. computer programs.

According to Information and Communication Technology Services –  

“The Copyright Act does not prescribe any formalities for copyright protection and the right becomes enforceable on the date of the work’s publication’.

And this basically means that the copyright exists automatically upon the creation of the work. As long as it is in the class of work as recognised by the Copyright Act.

“Although the author or creator of a work does not have to register the work. But by registering it, they make the copyright more visible”.

The one caveat however is that the work itself must be original and must be reduced to a material form.

What’s a material form?

A physical or tangible product must exist. In other words, the work cannot be a mere thought or idea. It must be created somehow i.e. by writing the content down, recording it, filming it or otherwise capturing it electronically.

But what a Copyright does afford the owner thereof is legal protection of all their original works. And that is a right that can be enforced (interestingly, an “original work” is covered under Intellectual Property, see below).

Summed up quite nicely by CIPC, a Copyright is –

“an exclusive right granted by law for a limited period to an author, designer, etc. for his/her original work”.

  • What makes up Intellectual Property (IP)?

According to CIPC (again), IP can be defined as –

“the application of the mind to develop something new or original. IP can exist in various forms; a new invention, brand, design or artistic creation”.

It amounts to a type of asset, termed an “intangible asset”.

According to Investopedia, an intangible asset is an asset that is not in its physical form. “Goodwill, brand recognition and intellectual property, such as patents, trademarks, and copyrights, are all intangible assets”.

Intellectual property therefore holds value and is protected from exploitation.

  • How is broadcasting defined in South Africa?

Firstly, let’s just remind ourselves that “Broadcasting” is listed under categories of work that are eligible for copyright protection under the Copyright Act.

Why is this important? Well, to understand whether Live-Streaming would be eligible for Copyright protection, we need to understand whether it falls under the definition of Broadcasting – is it a film, a movie? Or how else is it described?

Turning to the Broadcasting Act 4 of 1999, which defines “broadcasting” as follows –

“broadcasting” means any form of unidirectional telecommunications intended for the public, sections of the public or subscribers to any broadcasting service having appropriate receiving facilities, whether carried by means of radio or any other means of telecommunication or any  combination of the aforementioned, and “broadcast” is construed accordingly”

Let’s stop there for a minute. What is a “telecommunication”? (yet another term). And does it include transmissions via the internet?

Without going into too much detail, a “telecommunication” is defined under the Broadcasting Act as –

“telecommunications” means any system or method of conveying signs signals, sounds, communications or other information by means of electricity, magnetism, electromagnetic waves or any agency of a like nature, whether with or without the aid of tangible conductors, from one point to another, and the derivative noun “telecommunication” must be construed accordingly;

Now, does a “telecommunication” include the internet (importantly)?

Good question.

Let’s take a look at the Telecommunications Act 103 of 1996 for guidance. Telecommunications are defined as follows –

  • “telecommunication” means the emission, transmission or reception of a signal from one point to another by means of electricity, magnetism, radio or other electromagnetic waves, or any agency of a like nature, whether with or without the aid of tangible conductors;

Hmm, that doesn’t really answer the question though. Not until we look at the definition of “interconnect”

  • “interconnect” means the physical or logical linking of telecommunications systems in order to enable any user of a system so linked to communicate with any users of, or utilise services provided by means of, another system so linked, and “interconnection” has a corresponding meaning”;

If we look to the definition of what the internet is, according to Wikipedia, the internet is – “the global system of interconnected computer networks that uses the Internet protocol suite (TCP/IP) to communicate between networks and devices. It is a network of networks that consists of private, public, academic, business, and government networks of local to global scope, linked by a broad array of electronic, wireless, and optical networking technologies”.

Seemingly, a telecommunication does include the internet and a telecommunication is included under the definition of Broadcasting, which (if you recall) is eligible for Copyright protection.

So far so good ey.

Let’s admit – that’s a lot to take in

What does it all actually mean?

Whew that’s a lot of definitions and Acts.

But you see, Copyrights, Intellectual Property and the protection of Broadcasting is a complex topic with many moving parts. And when you add live-streaming into the mix, well that just topples the pot over. It therefore requires a lot of input.

But, we can break this down a little –

  • A broadcast, is a multi-directional method of communicating information (by means of electricity, electromagnetic waves or an interconnected telecommunication system like the internet) conveying information, in the form of an original piece of work (which was created through the application of the mind to develop something new or original i.e. Intellectual Property) to the public. And that broadcast is subject to Copyright Protection under the Copyright Act.

So the next logical step is to ask – if Broadcasting (as discussed in detail above), is eligible for Copyright protection, does this mean my Makeup tutorial Live-stream would be too?

How does this all relate to Livestreaming?

To start off with, the makeup tutorials I intend doing will constitute a form of artistic creation (at least in my opinion). They are original pieces of “work”. Something I have come up with and produced on my own. This “work” would constitute my IP. And therefore holds value. That’s one tick in my favour!

Broadcasting (in the broad sense) would seem (on the face of it) and in the ordinary course, i.e. an ordinary film or broadcast, to entitle the creators of such piece of work to copyright protection. This would, in essence, prevent the copying, reproducing or distribution of my piece of work. That (could be) another tick in my favour!

For an overview of other forms of IP protection, you can read the very useful article from Bizcommunity here.

But, I actually haven’t come across live-streaming amidst all the Legislation as listed above. And that’s because live-streaming is not actually defined under any of the Acts discussed above.

Whilst the Copyright Act does prevent “the copying or reproducing of original content”, it does not regulate the uploading or downloading of online content (aka my makeup tutorial) which, by the very definition of uploading or downloading constitutes a reproduction.

So, the next logical approach? I turn to the very Act that regulates films and movies (and perhaps my tutorial) – the Films and Publications Act 65 of 1996 (FPA) (now amended).

The FPA was originally intended to “provide for the classification of certain films and publications; to that end to provide for the establishment of a Film and Publication Board and a Film and Publication Review Board; to repeal certain laws; and to provide for matters connected therewith”.

But whilst it attempted to classify certain films and publications (providing for the establishment of a Film and Publication Board (FPB)), it did not (as eloquently set out in one of our previous articles the Regulation of online pornography in SA has parts falling through the cracks) include live-streaming in the definition of the online distribution of content.

Leaving a gaping legal hole. And leaving livestreaming, without any idea of where it stands. Legally speaking anyhow.

Something needed to be done.

Step in the Film and Publications Amendment Act 11 of 2019

The Film and Publications Amendment Act (FPAA) assented to by the President on 19 September 2019 faces harsh criticism. Dubbed by Businessday as “digital capture” and described in Businesstech as the ‘Internet Censorship Bill’, wherein commentators described the FPAA as being “in contravention of the right to freedom of expression, as provided for in South Africa’s Constitution.

It looks like trouble.

But its main purpose (according to the Act itself) is to –

“To amend the Films and Publications Act, 1996”, so as to (amongst other things) “regulate online distribution of films and games; to extend the compliance obligations of the Films and Publications Act and the compliance and monitoring functions of the Film and Publication Board to online distributors”.

Seemingly a good thing and first step in the right direction of regulating the fast paced environment that is online streaming (or at least attempt to).

To further this statement, the following definitions (found in the FPAA) should be noted –

  1. ‘‘ distribute’ in relation to a film, game or a publication, without derogating from the ordinary meaning of that word, includes— (a) to stream content through the internet, social media or other electronic mediums;
  2. ‘‘film” means any sequence of visual images recorded in such a manner that by using such recording, such images will be capable of being seen as a moving picture, and includes any picture intended for exhibition through any medium, including using the internet”;
  3. ‘‘publication’’ for paragraph (i) of the following paragraph means ‘‘(i) any content made available using the internet, excluding a film or game;’’, and
  4. ‘streaming’ means the delivery of films by an online distributor or broadcaster, including the online streaming or downloading of films and catch-up services that enable time-shifted viewing of a film online, to the end user of an online delivery medium, including the internet.’’

On the reading of these definitions alone, one would assume that live-streaming is sufficiently provided for under the FPAA. And it (kind of) is.

But, there is always a but with things “too good to be true”.

There are issues relating to contradictions and straight-up impossibilities outlined in the FPAA (if Businessday and Businesstech are anything to go by).

So, here is a high level summary of some of the difficulties faced with the FPAA –

  1. One of the main concerns with the FPAA (and its regulations) is that all online distributors will be required to register with, and submit all content to the FPB for classification. Prior to streaming any of the content (how does that help live-streaming?);
  2. Online distributors will have to apply to the FPB’s Council for self-classification accreditation or for approval to use the classification ratings issued by a foreign or international classification authority. Not only onerous but extremely hard to do when providing content on a global basis, whilst also ensuring that the South African content is classified in line with the FPB’s classification guidelines. Shouldn’t we get some guidance on this, realistically?
  3. When the FPB issues a registration certificate, it can impose any conditions it considers necessary for the better achievement of the objects and purposes of the FPAA”. Power trip much? Seems like a “hellava” wide ambit to give to the FPB – the imposing any conditions part;
  4. And to top it all off, until a certificate or permit has been approved by the FPB for self-classification, content providers will be required to submit all films and games to the FPB for pre-distribution classification. Hands tied behind our backs seems appropriate here, and
  5. Live-stream distributors are not exempt from general classification requirements. Meaning they cannot get a licence from the FPB to distribute without classification of their content.

Sort of a cart before the horse situation. Or rather, a race horse that doesn’t require a cart kind of situation.

Can you see the practical impossibilities here?

If you take into account all of the factors as set out above there is a lot to take in. And the creators of work which are geared towards live-streaming are put into somewhat of a difficult position.

So what is the answer?

Basically (and upon the current reading of the FPAA) it is seemingly impossible for live-streams to physically exist under the FPAA. And by having the FPB relying heavily on self-classification (and self- regulation) with massive amounts of content being uploaded every hour, I wonder how this will work. Logistically I mean.

It seems like a lot of rope will be given to distributors of online content. But is it enough rope to hang ourselves with?

We kind of remain stuck in a sort of grey area where if the FPAA is not amended to fully cater (properly) for live-streaming (in a way that makes logical and practical sense) or if the FPAA is not scrapped altogether, live-streaming a makeup tutorial seems rather tricky. If it is scrapped altogether, we go back to the old status quo where live-streaming videos won’t be illegal. They just won’t be regulated. And then the question as to whether or not they will enjoy Copyright protection is very much “I dunno”.

In the meantime I think it is fair to say that if I want to live-stream a makeup tutorial, I will have to “learn the rules of the game. And then… play better than anyone else.” – Albert Einstein

Meaning, if I want to live-stream via YouTube I would need to both know and understand its terms of service (TOS) i.e. learn its Rules.

For the most part, the TOS of any online platform prohibits users from violating the copyright of others. Using the copyrighted music of others in the background would be a violation not only of the TOS of YouTube (and other online platforms), but also the copyright of the music you are playing. And I could be exposed to copyright infringement and resulting liability that I should not play around with. It’s something I can ill-afford.  

The article by Adams and Adams on The Jerusalema IP Challenge is only one example of some of the issues faced by those who use copyrighted music of others in their videos. It’s worth having a read.

And it doesn’t just stop at music. The prohibited use of other artwork, performances or written materials would carry the same violation of TOS’s, the same copyright infringements and the same resulting liability.

I mean, I could blur the artwork. But this is easy to do when I have the time and ability to edit my video over a number of days. This is not so easy to do during a live-stream.Obviously.

Also, if I live-stream from a public area, a whole host of other concerns come into play – the right to privacy is one of them. In other words, people within the public space have the right to protect their name and likeness from being exploited. Therefore obtaining consent from people who may appear in my live-stream should be done – you know those “release forms” you often hear about in movies where people have to give their consent for the director/producer/camera man to use their picture? That’s what I mean.

It does seem like overkill, but if I am going to live-stream from a public place, it must (at least) be considered. Agh man.

It seems like a whole lot of stuff to consider for something as simple as a makeup tutorial. And it is. But you see, our law is not 100% clear on the subject.

In fact, it is not only grey in some instances it is often-times contradictory. And difficult (but not impossible) to enforce.

So best to be safe and err on the side of caution. Than be sorry.

Is there anything more that I can do?

Well despite a recommendation to know the TOS’s and approach live-streaming with caution, all is not entirely lost. I can register with CIPC (remembering that except for films and movies, there is no such thing as copyright registration in South Africa as copyright protection on other works automatically exists), by setting out that  –

  1. my work is original i.e. it’s not copied from anyone else (so not like Bailey Sarian);
  2. I will need to evidence that I have invested my own time, money, effort, skill, knowledge and endeavours to create my own work (I will need to evidence my blood, sweat and tears);  
  3. I will need to reduce my work to a material form so that a physical or tangible product exists i.e. it must not be a mere thought or idea. It must be “created” i.e. by writing the content down, recording it, filming it or otherwise capturing it electronically (perhaps even arguably live-steaming it?), and
  4. I will need to prove that I am a qualified person i.e. a citizen of South Africa, or (at least) domiciled in South Africa.

I could also enlist the help of suitably qualified attorney’s to assist with my Live-streaming debacle. But it will be up to CIPC to decide whether my live-streaming “film” could be appropriately copyrighted as provided for under the Copyright Act.

Either way it is best to treat my live-streams and therefore my IP the same way I treat my own privacy. And protect it the same way I would my own data. Very, very carefully! So, in answer to the question posed by the article itself – Are my live-streams copyrighted? Well, (at this stage at least) they could be….

Alicia Koch from The Legal Belletrist
FB: https://www.facebook.com/TheLegalBelletrist
LinkedIn: https://www.linkedin.com/in/alicia-koch-1926ab14/

31 May 2021