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
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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