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Are my Live Streams Copyrighted?

31.05.2021
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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 not always as easy as they make it look though #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.

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 needed to be like her – but different and unique. 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?)…?

And that got me thinking some more.

So, let’s start off by trying to understand some basics –

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, 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.

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

Also (and I thought this was really interesting) – no infringement results if work is acknowledged when one is copying or citing from another author’s work. For example – citing the definition of Copyright above which I took from the Information and Communication Technology Services website, I linked it to their website and their content was quoted. Thus not infringing on their Intellectual Property (IP). Lucky me.

What is intellectual property?

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”.

And this is where terms like an IP’s patents, trademarks, registered designs, copyright and unlawful competition (passing-off of trade secrets) come into play. Lovingly watched over by The South African Institute of Intellectual Property Law.

Taking into account the above, it would seem that broadcasting (which is copyrighted) would include live streaming……

But, does it?

Good question.

The makeup tutorials I intend doing will constitute a form of artistic creation. They are original pieces of work. Something I have come up with and produced. This “work” constitutes my IP.

In the ordinary course, i.e. an ordinary film or broadcast (as defined under the Copyright Act) the creators of said piece of work would be entitled to copyright protection. This would, in essence, prevent the copying, reproducing or distribution of their piece of work. You see IP is an intangible asset which holds immense value. It is thus protected against exploitation by third parties by means of copyrights (which are generally used for artistic works including, but not necessarily limited to literary, music, art and cinematograph films works).

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

It is also relevant to know that a copyright exists automatically upon the creation of the work if it is in the class of work recognised by the Copyright Act. Importantly, your work does not have to be registered for copyright, unless it is a film (whereby a copyright lawyer can help you register).

So does this include live streaming?

Getting to the crux of it

Finally!

Unfortunately it is not so simple.

The problem with recording a live stream makeup tutorial, is that the Copyright Act does simply not cover Livestreaming. It prevents the copying or reproducing of original content, yes. But it does not regulate the uploading or downloading of online content (aka my makeup tutorial) which, by its very definition constitutes a reproduction…

Until recently, live-stream content (like YouTube, Amazon-owned Twitch and now Tik Tok) fell among the terms of internet protocol television (IPTV), video-on-demand (VOD) and over-the-top (OTT) services. These are new terms for me too.

They were handled by the Independent Communications Authority of South Africa (ICASA), which cites the following as its service offering –

“ICASA is responsible for regulating the telecommunications, broadcasting and postal industries in the public interest and ensure affordable services of a high quality for all South Africans. It also issues licenses to telecommunications and broadcasting service providers, enforces compliance with rules and regulations, protects consumers from unfair business practices and poor quality services, hears and decides on disputes and complaints brought against licensees, and controls and manages the effective use of radio frequency spectrum”.

And whilst ICASA regulated the IPTV and VOD services, it gave a very broad exemption from regulation to OTT services. And many of the more public types of media distribution fell into this category. This included live-streaming and user-generated content, like YouTube or Twitch. They were essentially unregulated. But were legal.

In addition, the Films and Publications Act 65 of 1996 (FPA) whilst attempting to classify certain films and publications (providing for the establishment of a Film and Publication Board (FPB)), 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 livestreaming without copyright protection.

Therefore with the broad exemption of OTT services by ICASA and the fact that online distribution of content did not include live streaming, a sort of free for all resulted. You could live stream anything (including X18 pornographic content) without fear of the strong arm of the law. Chaos.

And as we have said“ICASA is seemingly avoiding the regulation of online-streaming as regulated “broadcasting” even though the definition of “broadcasting” can certainly include online live-streaming of content.”

And all of that non-dealing of live-streaming has left anyone trying to protect their IP (which is live streamed), well and truly open for exploitation.

The very purpose for which Intellectual Property law seeks to avoid.

Something needed to be done.

Step in the Film and Publications Amendment Bill 11 of 2019

The Film and Publications Amendment Bill (FPAA) as a FYI has been passed by Parliament (but has yet to be signed into law by the President and will therefore come into operation at a date yet to be announced. But still facing harsh criticism, being dubbed as “digital capture” it is still very much up in the air).

Nevertheless, these new Regulations will apply to (or at least seek to apply to) the “sale, hiring and streaming of content on various digital platforms in South Africa”. If they are signed into law.

And there are some definitions in the FPAA which must be noted –

  1. the definition of “publication” is widened to include any content made available using the internet, excluding a film or game. Which means that all advertisements and any other published matter, which is made available online, will have to be submitted to the FPB for classification. And this will include any make-up tutorial (live or otherwise);
  2. “streaming” is defined as the real-time distribution of a film over the internet, and
  3. “film” is defined exceptionally broadly to include live streams.

So live-streaming is covered under the FPAA. But not without its issues.

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.

In addition, 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. Whew that’s a mouth full. And quite a task.

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.

Let me repeat that – for pre-distribution classification.

It is also worth taking note regulation 2.3.3 which provides that 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.

If you take into account all of the factors as set out above – from the definitions to the submitting content for approval prior to streaming any of the content to the burdensome provisions of self-classification, to the submission to the FPB for pre-distribution classification (until a self-classification certificate is granted) to the imposing any conditions by the FPB, there is a lot to take in.

And the creators of work which is geared towards live streaming are put into somewhat of a difficult position.

How can I live stream under these conditions? And no, I am not being a Diva about it.

What is the actual purpose of the FPAA?

When we consider the FPAA’s main purpose i.e. if a distributor wishes to distribute a film or video, they must be registered with the FPB, and their film must be classified before it can be distributed. Including live streaming makeup tutorials, it begs the question –

How does one go about pre-classifying live-streams which are distributed in real-time?

More concerning – live-stream distributors are not exempt from general classification requirements. Meaning they also 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.

Seemingly – after the picture that has been painted – a livestream service would be illegal under the FPAA. I mean, it is physically impossible for live-streams to be classified before distribution. Unless Doc from Back to the Future has a hand in the classification process…

Basically – (and upon the current reading of the FPAA) it is legally impossible for live-streams to 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 – to be accessed from any location around the world – it makes one 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 themselves with? That is the question.

It is looking more and more like live streaming my makeup tutorial is a non-starter. And will not be copyrighted.

So what is the answer?

As it currently stands, live streaming is legally impossible. We have discussed that. And despite being defined as broadcasting under the FPAA, it is currently legally impossible to actually do. Therefore, preventing copyright protection. You cannot copyright something which is legally impossible.

So we remain stuck in this sort of grey area where if the FPAA is not amended to fully cater (properly) for live streaming or if the FPAA is not scrapped altogether, live streaming a makeup tutorial (legally) does not seem likely and will not enjoy copyright protection.

If it is scrapped altogether, we go back to the old status quo where no one wanted to take responsibility for the managing of live streaming content. Which does not stop at makeup tutorials, if you know what I mean (nudge nudge wink wink). Meaning they won’t be illegal. They just won’t be regulated. And then the question as to whether or not they will be protected is very much “I dunno”.

In the meantime I think it is fair to say that if I want to live stream a tutorial, I will need to understand the rules of the “game” I am playing.

Meaning, if I want to live stream via YouTube I would need to both know and understand its terms of service (TOS). Its t’s and c’s if you will.

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, thereby exposing you to copyright infringement and resulting liability that you should not play around with.

And this doesn’t stop at music. The prohibited use of other artwork, performances, written materials, or architectural works (as listed above) would carry the same violation of TOS’s, the same copyright infringements and the same resulting liability. Pixelating the artwork is an option. But this is easy to do when you have the time and ability to edit your video. This is not the situation during a live stream.

If you are live streaming 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 for commercial gain. Therefore obtaining consent from people who are captured during your broadcast should be done – you know those “release forms” you often hear about 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 you are going to live stream from a public place, it must be considered.

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 (as it currently stands) is not clear on the subject. In fact, it is not only grey in some instances it is downright contradictory. And impossible to enforce (where is my DeLorean when I need it).

So we recommend approaching live streaming with caution.

Treat your IP the same way you treat your own privacy. And protect it the way you do your own data.

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

31 May 2021

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