While digitisation has demonstrably disrupted the traditional music industry, it has also presented new opportunities, particularly in the way musicians can share their creativity and connect with audiences.

In the pre-COVID-19 world, online streaming services complemented live performances and meant artists were able to reach a greater audience. For instance, Coachella has live streamed its festival on YouTube since 2011. However as we recalibrate to a #stayathome reality where attending live performances in person will not be a possibility for the immediate future, online streaming platforms will play an important role in helping fill the void.

In recent weeks, music listeners have been able to experience live music festivals and live performances of well-known stars such as John Legend, Coldplay front-man Chris Martin, Neil Young and Keith Urban online from the isolation of their own homes. In Australia, initiatives have included virtual festival 'Isol-Aid', the Melbourne Digital Concert Hall, and a collaboration between the World Health Organisation and Australian organisation Global Citizen called the 'Together At Home' concert series. Adapting to an online environment though is not just for more established artists, with increased activity amongst amateur musicians and music teachers performing and conducting lessons and practice sessions live on platforms such as Zoom and Facebook Live.

Moving a music performance to an online environment can create greater complexity in terms of protecting, and licensing, the intellectual property rights relating to that performance. The online environment also opens up a new range of risks of intellectual property infringement. It is therefore important that musicians understand the rights they may automatically be relinquishing, or sharing with others, when they stream their performances online, and how they can protect their rights.

Streaming services

There are various platforms available for musicians to live stream their performances, with each platform having their own terms of service. We have highlighted the key intellectual property issues musicians should be aware of when using online streaming services.

1. Facebook

Facebook's Terms of Service provide that users continue to own the intellectual property rights in the content they create and share on Facebook. However, currently Facebook terms include a "non-exclusive, transferable, sub-licensable, royalty-free and worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works" that concludes when content is deleted. This means Facebook can use, share and adapt a user's work without asking further permission or paying any money. Users are also responsible for the content they share to ensure it does not infringe someone else's intellectual property rights. If you believe someone has infringed your intellectual property rights you can report this to Facebook.

2. YouTube

YouTube's Terms of Service are currently similar to Facebook in that users continue to own the content they create but again it allows YouTube to share or use the content without further consideration and without any obligation to pay the user for their content. The licence also extends to other YouTube users and allows them to use your content on YouTube. The other difference is that the licence continues for a "commercially reasonable period of time after you remove or delete your content" instead of ending when the content is deleted. YouTube can automatically analyse uploaded content to detect any copyright protected material. If a user believes someone has infringed their intellectual property rights, they can submit a copyright takedown notice.

3. SoundCloud

SoundCloud's Terms of Use provides that a user continues to own the content they create and upload. The licence granted by uploading content to SoundCloud is wider than you might expect as it extends to SoundCloud, other SoundCloud users and to operators and users of any other websites, apps and/or platforms to which user Content has been shared or embedded using SoundCloud (Linked Services) on a "limited, worldwide, non-exclusive, royalty-free and fully paid basis". If you are unsure whether the content you upload or whether the content of another user infringes copyright, SoundCloud provides a useful checklist to consult for music uploads. SoundCloud also offers means to report copyright infringement.

4. Zoom

Online streaming services are also useful for music educators. Zoom is a platform commonly used to deliver lessons remotely and its Terms of Service provide that users continue to own any copyright they hold in the content they post and as the user of Zoom, however, users are also responsible for ensuring that content does not infringe the intellectual property rights of others. The use of copyrighted music material is inevitable to teach a student how to play a song, and generally educational use is an exception to infringement. If you believe someone is infringing your copyright on Zoom you may submit a notice to Zoom.

5. Twitch

Twitch is one of the few platforms that has a financial function embedded where users subscribe to a user's channel and share the revenue with Twitch. Twitch's Terms of Service provide that when users stream live and pre-recorded audio-visual works on their services they grant Twitch "an unrestricted, worldwide, irrevocable, fully sub-licenseable, nonexclusive, and royalty free" licence that lasts for "the maximum duration permitted by applicable law". If you believe material on Twitch is infringing your copyright, you may submit a written notification to Twitch's Designated Copyright Agent.

Create, collaborate and protect your intellectual property

Copyright plays a critical role in protecting a musician's online performance. The score of a song (musical work), the lyrics of a song (literary work), the sound recording, and the choreography of the musician when performing (dramatic work) are all protectable. In order to be capable of protection, the performance expression must be original and in material form (such as a recording available after the live stream or writing down the lyrics or score). Video footage of a musician's performance can also be protected under copyright law (cinematograph film). See our Copyright Tools here for more information.

Performing a cover version of someone else's song can sometimes create a new range of rights under copyright law, but it is important that permission has been sought from the copyright owner(s), and any royalties paid, before performing the work or posting it online, otherwise you might find yourself on the receiving end of a take-down notification.

Finally, use and protection of trade marks is also important. You may have seen on YouTube videos for example, performers often overlay their band name/trade mark in the corner of their videos (to identify the video contents as being their music or performance). Mechanisms such as these are essential to stop others adopting a similar name or logo to yours. See our Trade Mark Basics link here for more information.

Key takeaways for musicians and performers

When creating, collaborating and sharing your music and performances online, it is important to consider:

  • The terms and conditions of the relevant platform/s when you create an account to understand your obligations when uploading content, who will own your content and how you allow others to use your content;
  • The tools and recourse available on these platforms to report any potentially infringing conduct;
  • The importance of intellectual property rights (your rights, and the rights of others) and in particular copyright and trade marks in protecting art.

In a new world where online streaming platforms have taken on greater importance in providing much needed entertainment, artists should be aware of and take a keen interest in their intellectual property rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.