Forget dreaming, welcome to the age of streaming. A while back I was watching one of the new sitcoms centred around a family where the parent when disciplining the child threatened, “No TV for a week”, “Fine” answered the child, “I watch television on my computer anyway”. We are forever interacting more closely with the net, and have come to expect it to provide us with all forms of entertainment.
Content, whether film, TV series or music can now be streamed in real time or on demand over the internet. Some content-providers limit streaming according to your physical location, in a last-ditch attempt to control rights across (non-existent) Internet borders.
A few days ago, the US Senate Judiciary Committee passed a bill which makes the illegal streaming of video content online a felony offence.
Meanwhile, in Europe, it is being discussed at EU level, whether laws dealing with internet service providers such as those existing in France and Ireland should be mimicked at a regional level. This calls up fears of having the ISPs act as “big brother” and become involved in a battle which is not theirs to begin with. Up until now the EU has promoted a legal, e-commerce environment, tolerating the mere conduit carried out by ISPs and, like the US, we have safe harbour clauses which safeguard the interests of sites and service providers such as YouTube.
What is feared is that new legislation will put the burden on ISPs to monitor internet usage by their clients, and notify them and copyright-owners of any possible infringement.
The French law, Hadopi, introduced in 2009, had, inter alia set up an agency to monitor internet use for illegal activity, such as file sharing and downloading. A user’s internet connection is cut off if the law is broken three times (three strikes rule). Following a heated discussion within the French government, only a judge can decide whether an infringement actually took place, with some questioning whether the evidence brought before the court would be accepted in the first place since it is gathered by a private company and not the police.
This begs the question whether this is the correct approach. Many copyright commentators rightly point out that this is a much too invasive way of identifying infringement which is carried out on a commercial scale. Up until now, individual users have not been targeted.
Late last month, again in France, the administrators of an internet site hosting links were arrested and face up to five years in jail and a fine of up to €500,000. The reports indicated that the administrators generated up to €202,000 in revenue from banner advertising on the site – a commercial gain has been made. This has led to a charge of organised counterfeiting against them.
In another case, the Court of Appeal in Paris confirmed a decision in which the creators of a French website for streaming music were sentenced to pay €1 million in damages to two collecting societies. Users could download an application which assists them set up their own playlists and play the songs they wished to hear. The site was streaming music content without having cleared the rights from the collecting societies concerned.
The court applied the article of the law which targets the making available to the public software clearly intended to distribute works without the authorisation of the rights-holder, or inciting others to use such software. Subsequently, the court held that the sole purpose of the software was to make available the copyrighted works owned by third parties.
The fact that users did not download the works but merely streamed them was held by the Court of Appeal as not being relevant. An appeal is in the pipeline since the Supreme Court has recently cleared two similar sites involved in video sharing.
But where does that leave new online services which are emerging on the net? Services such as cloud storage and how it is being adapted to store each person’s music collection not on their personal computer but in the cloud (think of it like web-based email, but for storing music). It is highly efficient for users, but the million dollar question is, “Will Copyright law be used as an obstacle to its functioning?”
www.fenechlaw.com
This article is not intended to offer professional advice and one should not act upon the matters referred to in it without seeking specific advice.
Dr Rizzo specialises in entertainment law at Fenech & Fenech Advocates.