Over the weekend, Foxtel broadcast the light-heavyweight boxing match between Anthony Mundine and Danny Green in Australia. It was a pay-per-view match and some folks ended up streaming it over Facebook Live. Now Foxtel is out for blood.
The company is considering taking legal action against those who live streamed the match. Streamers claimed they did nothing wrong. So is it legal to stream copyright content on Facebook Live and similar services? And does Facebook have to take some responsibilities for inadvertently facilitating the streaming? Let’s find out.
One person who received plenty of attention for his Facebook Live stream of the fight was Darren Sharpe, a mechanic from Brisbane, who ended up getting up to 112,000 viewers for the $59.95 pay-per-view fight. Foxtel was so peeved that a representative called Sharpe up during the stream and told him to shut it down because “[i]t’s against the Copyright Act of Australia, mate”.
The Foxtel representative is right: Section 87 of the Copyright Act 1967 addresses TV and sound broadcasts specifically. While it doesn’t explicitly touch on streaming of copyright content, it is still covered under Part C as an exclusive right: “(c) in the case of a television broadcast or of a sound broadcast – to re-broadcast it or communicate it to the public otherwise than by broadcasting it.”
Foxtel had the exclusive right to broadcast the Mundine V Green fight in Australia. There are provisions for temporary reproduction of copyright content, but it doesn’t cover live streaming in this case. In fact, live streaming is communicating the content to the public, which contravenes the Copyright Act.
There are exceptions when it comes to live streaming copyright content on social media. For example, last year Twitter obtained a licence to stream the Melbourne Cup.
“That was an acknowledgement from the rights owners that social media is a powerful platform and is a way people like to access the content; entering into a licencing deal facilitates that,” Fiona Phillips, CEO of the Australian Copyright Council told Lifehacker Australia. “There is an issue when you’re using third party content and streaming it; that could be doing the dance routine to a recorded song or reading someone else’s book out loud; anything that involves someone else’s content.”
She also pointed out that when a copyright infringement reaches a certain scale, offenders may face criminal penalties.
“Once it becomes a commercial scale of infringement, there are potentially criminal liabilities and that doesn’t necessarily have to consider an offender’s intention,” Phillips said. “Once something is on the internet, it is very difficult to control. It could potentially end up being millions of dollars’ worth of damages.
Indeed, Sara Delpopolo, a lawyer specialising in social media, told ABC Online that the streams could have deprived Foxtel of millions of dollars.
You could argue that on a very basic level, there were at least 112,000 people (peak number of views Sharpe had for his Facebook Live stream) that didn’t pay their $59.95 each to watch the fight so Foxtel theoretically lost out on around $6.7 million in revenue.
But consider this: if the stream wasn’t available for free, would those 112,000 people have bothered to pay to watch it? Some might. Most of them probably wouldn’t have. It’s difficult to quantify just how much Foxtel lost out on.
Is Facebook Liable For Copyright Infringement In This Case?
Facebook was the provider of the live streaming service, so is it also in hot water?
While Phillips noted that there is a safe harbour scheme that protects internet intermediaries such as ISPs from being liable for “inadvertently hosting or communicating infringing material on behalf of their users”, it does not cover social media and live streaming providers. That may change in the future as the Federal Government considers expanding the safe harbour scheme to protect service providers more broadly.
Then there are the terms and conditions of use for social media and live streaming services; often we agree to them without even reading them all the way through. These terms and conditions usually talk about how the companies are not responsible for what users do on the services provided.
Phillips is concerned that extending the safe harbour to service providers like Facebook will reduce the incentive of these companies from seeking licencing agreements with copyright holders.
“The problem with that is that it then provides a get-out-of-jail-free card for service providers and removes incentive to seek licences from rights holders,” she said. “Rights holders are also interested in providing consumers with access to content they want. Licencing seems like the best model for people to have access.”
Pricing should also be considered. Unlike the Melbourne Cup which was streamed for free, the Mundine V Green fight was rather expensive. Accessibility of content isn’t just about making it available on more platforms, it’s about offering it at a reasonable price as well.
You can read up on all the previous instalments of Is It Legal? here.