The right to televise sporting events is one of the most valuable commodities in the broadcasting sector. When reports surfaced that live-streaming apps, such as Periscope and Meerkat, had been used to transmit live streams of the "fight of the century" between Floyd Mayweather Jr and Manny Pacquiao on 2 May 2015, they raised the issue of the copyright implications of these kinds of applications.
The legality of web streaming is still considered a grey area because, although the stream creates a copy of a file on a person's computer, that copy is temporary and is stored exclusively to allow uninterrupted playing of that file. In a 2014 decision, the Court of Justice of the European Union (C-360/13) ruled that, in the course of viewing a website, all copies made on an end-user's computer screen and in the cache of that computer's hard disk "satisfy the conditions [of Art. 5 of the Copyright Directive (2001/29/EC)] that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process". Thus, all copies made when viewing a website may be made without the authorization of the copyright holder. Whether this decision could, by analogy, be extended to web streaming is unclear as the Court did not refer to streaming. In the wake of some cases involving video platform RedTube, the German Ministry of Justice, for example, issued a statement that the mere consumption of copyrighted content by way of streaming does not amount to copyright infringement.
While viewing a web stream might not amount to infringement, setting up a stream might. The question in this context is whether the content transmitted via streaming actually falls within the scope of copyright protection. The Court of Justice of the European Union (C-403/08) noted that, in principle, sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive (2001/29/EC). This includes, in particular, football matches, which are subject to rules of the game, leaving no room for creative freedom whatsoever. Thus, those attending the event can transmit live streams to social media followers and the wider Internet without infringing copyright. However, this applies only to the action taking place in the arena. A televised football game might be judged differently, since the broadcast is subject to various creative decisions by its director(s) such as, inter alia, camera perspectives, close-ups and slow-motion scenes. These tools, or a combination thereof, might give the director(s) enough creative freedom to justify copyright protection of a televised football game. In any event, copyright can subsist in various works contained in the broadcasts. For example, an opening video sequence, pre-recorded films showing highlights of recent matches, or various graphics.
Football, boxing and golf matches as such are subject to rules of the sport and leave no room for creative freedom for the purposes of copyright, so live-streaming from the point of view of an arena attendee will likely not be copyright relevant. The copyright implications of live-streaming might also be different from on-demand-streaming. In the absence of case law addressing the issue, a precise assessment is, however, not yet possible.
Tags: CJEU, Copyright Infringement, Threshold of Originality, Web Streaming
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