Copyright Implications and Plagiarism issues with "Live" Videos
There has been an unprecedented boom in the number of live streams and videos across various social media platforms in the wake of this lockdown. This has not only allowed celebrities and artists the chance to entertain their fans but has also allowed them to build a larger engagement with them, given the massive increase in the number of people tuning into live streams. Five days after the 21-day lockdown was announced by the Indian government, on March 29th 2020 Instagram launched a virtual music festival bringing together 14 popular Indian artists, such as Armaan Malik, Lisa Mishra, Naezy, Arjun Kanungo and others, through its ‘Instagram Live’ feature, encouraging users to sit in their living room and experience ‘live music. Instagram additionally reported a massive 60% rise in its live views in comparison to the previous week. In furtherance of encouraging the ‘Stay at Home, Stay Safe’ slogan, many artists worldwide have turned to ‘Live Videos’ to keep their fans engaged. These live streamed videos of artists performing are also being used to generate funds/donations for the various relief organizations working to help the various doctors, hospitals, first responders, etc., who require aid during this pandemic. Websites such as Billboard and Vulture also provide a list of ‘Virtual Concerts’ and Live video performances fans can watch from the safety of their home during this global lockdown. But with the increase in live performances such as those performed by popular artists such as John Legend, Chris Martin, Neil Young and P!nk, also arise certain glaring legal issues surrounding the copyright protection of these performances.
Now you’re probably wondering what possible copyright issues could surround these live-video performances? But before we dive into them, here’s a little background to what goes into a a ‘copyright.’ A copyright is, in a general sense, the right an individual has over their intellectual asset or creation. In the legal perspective, owning a ‘copyright’ in a work requires two basic things – one, that the work created has to be original and not a copy of someone else’s creation and two, it has to exist within a specific medium, which means ideas in your head cannot be protected as a copyright unless they are put into some form. In India, the Copyright Act of 1957 (to be referred to here as the Act) provides statutory legal protection to works which qualify for copyright protection. Instead of diving into the depths of this legislation, let’s just keep in mind 3 important provisions of the Act.
Section 13 – This provision indicates what types of ‘work’ would qualify for copyright protection. These include original literary, dramatic, artistic, musical works and cinematograph films and sound recordings. So, if your creation falls under any of these, you could possibly own a copyright in it.
Section 14 – This provision provides the various exclusive rights the owner of a copyright has. These rights range from prohibiting anyone from making a copy of their work without the right-owner’s permission to communicating the work to the public, through in different forms.
Section 51 – This provision states that if someone other than the owner of the copyright exploits the exclusive rights given to the owner without their permission or without a valid license, then they are liable for infringing the copyright of the owner and the owner can initiate legal action against them for such acts.
Now that we have a very basic understanding of copyright law in India, let’s see what are the copyright policies which govern social media platforms such as Instagram and YouTube.
If you didn’t already know, all content posted on Instagram is regulated by their Copyright Policy. The policy firstly addresses basic questions of what a copyright is, the kind of content that an account holder can claim copyright in, what rights the copyright holder has and so on. This policy also provides information on issues such as how to ensure content posted on Instagram doesn’t violate copyright law, or what to do if content is taken down for violating someone’s intellectual property, how to report copyright infringement, etc. While these laws are rooted in United States Copyright law, they apply to all of the platform users irrespective of their region with general application over all as anyone who owns a copyright in the content to upload on this platform has a right to report and claim infringement. Besides taking action through the Instagram policy, users can also claim infringement under their own law such as in India, under Section 51 of the Copyright Act, 1957. Similarly, YouTube’s Copyright Policy also addresses such preliminary questions of what Copyright is and how their ContentID tool assists them in identifying and taking-down infringing material. It also provides for how copyright claims can be made and how to go about disputing such claims. YouTube as well finds its basis in U.S Copyright laws such as the Digital Millennium Copyright Act (DMCA) and also has a general application on all its users worldwide.
Now that we understand the Copyright policies of Instagram and YouTube, let’s see why there could be copyright infringement implications with performances through Live videos.
With the advancement of technology, there are now different ways in which an individual can ‘Screen-Record’ videos, photos or anything else on their phones and laptops. What this ‘screen-recording’ essentially does is, it records whatever is on the screen and at times the application doing such screen-recording also records the sounds played on the phone and stores the final product on the phone for the user to have access to at any point of time.
So, when an artist or multiple artists perform on Instagram live or YouTube live streaming, with the help of such screen-recording apps, an individual can, without permission, record such performance entirely and save the recording to be uploaded on social media platforms. This clearly violates the copyright vested with the artist over their performance.
We can understand this easier by comparing it to an instance when a person attending a concert records the entire or parts of the concert to be uploaded on YouTube or Instagram without the permission of the artist or the production company which might own the songs the artist performed during the concert. Such an act would amount to copyright infringement.
Similarly, in Live-Videos, when you screen-record the artist’s performance, save such video on your device and upload it to Instagram or YouTube, these acts could amount to infringement not only under their policies (as mentioned above) but also under the Indian Copyright Act, 1957. Such upload of content which is the intellectual property of the artist, the composers, the record label, and being displayed to an audience cannot be considered the creation of the uploader and is a blatant copy of another individual’s work. This is a blatant violation of the basic principles of copyright which requires originality/non-copying for the owner to claim a right over the work.
Now, if the question pops into your head –what if I record the video and keep it for myself but not to publish anywhere online, will that be legal? Interestingly, the screen-recorded video created on your phone or laptop alone could amounts to an infringement as it’s a copy of the work and violates one of the exclusive rights of a copyright holder to prohibit anyone from making and issuing copies of their work without their permission.
It doesn’t matter whether such screen-recording of a live performance was done for non-monetary or non-commercial purposes, even in such situations, unless the permission of the performing artists or the owner of the copyright is taken, the act of screen-recording such performances will amount to a copyright infringement.
While we absolutely love that our favorite artists are going out of their way and keeping us entertained through virtual music fests during such tough times, it is important to ensure that we do not misuse such privilege given to us to be able to experience such performances from the comfort of our homes. Recent trends show that Live Videos have gained immense popularity and seem to be the future of entertainment and marketing as well. It’s important that in such a future, performers and producers keep in mind the possible copyright implications and the difficulty that come in regulating and enforcing them.
This post was written by contributing writer, Diksha Arora. Diksha is a final year law student in Bangalore, India moving to Los Angeles soon to pursue her masters in Music and Entertainment Law at the UCLA Law School. She's an absolute music nerd, very passionate about artist rights and holds a keen interest in everything related to movies, music, and entertainment.