Licensing your live stream…

2 July 2020
Posted by Sebastian Marcu

2020 has become the year of the live stream. Music venues and nightclubs have closed their doors, and musicians, DJs and promoters have turned their attention to discovering new ways of engaging with their audiences. What once happened in close quarters on a dancefloor has now firmly found its place on the internet.

The spike in popularity in live streams has brought copyright licensing issues to the surface – particularly how does one ensure their live stream does not breach copyright laws, and why are live streams being taken down?

How can I ensure that my live stream doesn’t breach copyright laws?

In a nutshell – ensure all the music you use in the live stream is fully licensed, or only use music that you have the rights to.  Easier said than done though!

Licensing and rights ownership in the context of music can be really complex, so let’s break it down:

1. There are three types of copyright in music. One protects the sound recording, one protects the musical work (i.e. the composition) and one protects the lyrics. Record labels or artists usually own/control sound recordings, and publishers or song-writers, the musical works and lyrics.

2. Copyright owners own a bundle of copyright rights in their sound recordings, musical works and lyrics and have exclusive rights to use and licence these rights.

3. If you want to live stream music, you will need to get the copyright owners permission to ‘reproduce’ and ‘communicate to the public’ (which includes electronic transmission) the sound recordings, musical works and lyrics, and in some instances to ‘perform in public’ the sound recordings, musical works and lyrics.

The owners of copyright in songs typically license certain copyright rights to collection societies to help them collect income.  These collection societies are often able to offer blanket style licences to allow music consumers to use music for various commercial activities (such as use on a TV show, at a concert or for elevator use). Unfortunately, when it comes to licensing live streams, there are no blanket licences available to cover all of the necessary rights both in Australia and internationally.  Therefore, the reality is that your live stream will infringe copyright laws unless you enter into direct licences with each and every copyright owner, for all songs used in the live stream.  We get that this is impossible in practice!

Why is my live stream being taken down from social media platforms?

In a nutshell – if you are unlicensed to use the songs contained in your live stream, you will be in breach of social media platforms’ Terms of Service.  As they have a legal responsibility to proactively deal with the infringement of copyright on their platforms, they will ‘take down’ your live stream if you are in breach of their T&CS.  Check out two popular platforms’ T&CS to see what they say about live streaming and copyright.

The Twitch copyright policy says:

“When broadcasting on Twitch, you should create content that is original or you can share content that you are authorized to broadcast. Content that involves replicas, derivative creations, or performances of others’ copyrighted content may violate another’s intellectual property and be subject to a takedown by a rights holder.”

Twitch’s copyright policy specifically bans DJ sets, described as “playing and/or mixing pre-recorded music tracks which incorporate music, other than music which is owned by you or music which is licensed for you to share on Twitch.”

Violating Twitch’s policy may lead to suspension of your channel, and several strikes can lead to a permanent ban.

Facebook’s copyright rules include some key questions live streamers should ask themselves before streaming:

-Did I create all of the content myself?

-Do I have permission to use all of the content included in my post?

-Does my use of the content fall within an exception to copyright infringement?

-Is the content protected by copyright (for example, is it a short phrase, idea or public domain work)?

Facebook also has a strike policy, where streams may be stripped of audio and multiple infringements can cause account suspensions or permanent bans. As the Facebook content scanning algorithm is an automated processes, it’s not uncommon for them to terminate live streams that were mistakenly marked as infringing copyright.

So where to from here?

Even leading international music industry figures from collection societies, technology providers, platform owners, lawyers and rights holders are scratching their heads.  It’s a problem that these sorts of people are working desperately to fix, and there are some positive steps being taken by platforms such as MixCloud, APRA/AMCOS in Australia and the PRS collection society in the UK with regards to blanket licensing.

Studio Legal principal lawyer Jennifer recently took part in a round table discussion on live streaming and copyright issues with leading international figures in the music rights world. You can listen back to the insightful discussion here.

Photo by chris panas on Unsplash.