COPYRIGHT & TRANSIENT REPRODUCTION IN STREAMING – STATUTORY EXCEPTIONS TO INFRINGEMENT FOR RECIPIENTS

 

Internet streaming, due to the packet switching technology used in internet communication, inevitably means the streamed content is transiently reproduced by recipients at the end of the communication chain.  Also, the practicalities of internet delivery of content mean there is transient and temporary reproduction by intermediaries in the chain, but the focus of this blog is end user copyright issues. 

Unlike the situation where recipients download content, transient reproductions involved with streaming are beyond the control, or even knowledge, of the recipients.  They should not constitute infringements of creators’ or communicators’ reproduction rights.  As was recognised, but unfortunately not codified, in the international negotiations which led to the 1996 WIPO Internet treaties, there should be statutory exceptions to copyright infringement which expressly cover these types of transient reproduction.  A model provision in the treaties would have meant that not only would all jurisdictions ratifying the WIPO treaties now actually have an exception in their copyright legislation, but they  might also have less ambiguous provisions for their courts to apply.      

Streaming is different to browsing pages on a website where the reproduction on a screen might better be categorised as ‘temporary’ (a limited period of time) rather than ‘transient’ (a momentary, fleeting or short-lived period of time).  It may be easier to achieve clarity and certainty by having a separate statutory exception for ‘temporary reproductions’ such as browsing, if indeed it is considered to be an infringing reproduction in the first place.

Transient Reproduction prior to and outside the Digital World

Watching ‘analogue’ television programmes required transient reproduction of the individual picture frames making up such works on the user’s TV screen.  Despite a technical reproduction occurring this was treated like reading a book and was never considered infringement of copyright in the programme, let alone the TV broadcast.  Nor, going way back in time was watching a movie being transiently reproduced frame after frame on a screen using a home projector.  This was the case even in the rare situation where the programme or its transmission breached a third party’s copyright. 

Reproduction of Content on the Internet

The first hot internet issue for the music industry was peer-to-peer (P2P) file sharing where millions of consumers shared content files via a central database (eg Napster) and later decentralised databases such as Grokster and Kazaa. 

Here the users/consumers were active infringers and not simply recipients of content.  So-called file sharing involved copies being made and stored by uploading and downloading.  Somewhat different from streaming!  Although, as mentioned below, in the US receiving a stream has been equated with a download rather than with a broadcast.            

Transient Reproduction in Streaming Technology

Although the copyright issue being dealt with here is transient copying in consumers’ equipment any overview of the streaming process must start with the communicator of the content.  First, analogue content is digitised by periodically sampling it (at 40,000 times per second for music) and representing the magnitude of each sample using binary numbers.  The numbers, in the form of groups of bits (0s and 1s), are chained together to form a digital file.  Next the digitised content file is split into data packets (10,000 bits per packet) to be able to be transmitted over the internet which uses packet switched data technology.

For video content the consumer will usually have a ‘set top box’ connected between their internet router and TV set.  All this can be done on a suitably programmed computer, but lack of user friendliness and the small screen are negatives for family groups of drama and sports lovers.  Perhaps using a smart phone to receive and play audio content is more directly analogous to using a computer.  

The STB, among other components, contains a buffer memory for transiently storing received packets of content until enough packets are accumulated to constitute one picture frame to be displayed on the TV screen – 50 packets.  After each frame is displayed the frame packets stored in the buffer memory are deleted to make way for packets making up the next frame.  Maximum packet storage time in theory would be 0.04 seconds – very obviously ‘transient’.  In practice because optimum bandwidth might not be available continuously for many viewers the buffer memory will be set up to store more than one picture frame’s worth of data packets so storage time might be 0.2 seconds – still rather transient.  

So, this is how the domestic consumer is carrying out transient reproduction – simply an essential part of the technological process executed by his STB to enable private watching or listening to content.  Without a legislative exception many jurisdictions consider this to be infringement of the copyright in the content.

But is the Subject Matter that is being Transiently Reproduced actually a Copyright Work or a Substantial Part of a Work?

The answer may be different for audio streaming as opposed to video streaming, but why has little, if any, consideration given to the quantity or quality of the fragment of the work which is actually transiently reproduced by storage in memory?  If we look at the groups of binary digits which are transiently stored when receiving an audio stream they may only represent half a musical chord – a mere fragment of a musical work.

Infringement by reproduction in many jurisdictions requires the whole or a substantial part of the work to be reproduced.  Is half a chord a substantial part of the whole musical work?  Although the ‘substantial part’ approach to infringement is not part of US law, copyright there has traditionally not even subsisted in short insubstantial things like, say, a short phrase.  However, it does need to be mentioned that this has recently been thrown into turmoil by the Ninth Circuit in a case brought against Taylor Swift where a phrase in a song was considered possible copyright subject matter.

The EU is a bit more liberal – any expression which is an author’s intellectual creation will be protected (even 13 words according to the CJEU in the Infopaq case) – but in the EU half a chord should not constitute an intellectual creation by a composer.  Nor even would any whole chords since they will have been used by many composers over the centuries.   

For video the issue of substantiality of the part transiently reproduced (even a single picture frame) was essentially decided in the days of film long before the internet – reproduction of a single frame being considered to constitute infringement of film copyright.

Nevertheless, for audio streaming, transient reproduction in the streamer device’s buffer memory should never have constituted infringement of the copyright in the piece of music being streamed.  Debate over a statutory exception for these transient reproductions should have been superfluous.  

Home recipients versus transmission initiators and intermediaries.

Why should domestic consumption of content ever be a potential infringement?  Reading books is not.  As already mentioned above, watching movie films on a screen using a home projector system was not and watching television was not and even with those countries which have TV licences the licence is not a copyright licence.  Listening to a radio broadcast is not. These acts were only infringements where the playing or showing was in public.

There is a clear difference between passive watching and active recording of received content.  Why should the mode of communication, that is digital transmission, have a different legal outcome?  Why have some courts thought viewing or listening to streamed content could constitute infringement of copyright?  This appears to be contrary to copyright philosophy.

Taking a cynical viewpoint, maybe there was a ‘commercial’ motive for promoting the concept that transient reproduction of streams by recipients should be considered an infringement which could only be exempted by detailed statutory exceptions (or by case law developments of a fair use doctrine).  This would facilitate additional or alternative claims against communicators further up the distribution chain such as infringement by ‘authorising’ or ‘promoting’ the recipients’ infringement and/or by making them contributory infringers unless they obtained licences and paid royalties. 

Consider, for example, the countless legal actions against Spotify in the US based on Spotify not always having obtained and paid for ‘mechanical rights’ licences from music publishers.  Although, as Spotify has claimed in one case, streaming does not fall within the mechanical rights scenario of delivery of a reproduction for repeated playing by the recipient’s equipment.

A Statutory Exception to Infringement for Recipients of Streamed Content  

What are the necessary elements for an effective copyright exception for recipients of video and audio streams?  The position of private recipients is different from intermediaries and the statutory exceptions should also be different and not merged together in a generic provision as is common in many of those jurisdictions which have incorporated exceptions for transient and/or temporary reproduction.  The latter (‘temporary’) should be at the heart of a separate exception for browsing web pages and the like.  

Obviously, the duration of the reproduction must be limited to being transient and it must be an essential part of the technology for receiving and enabling the viewing and/or listening of the streamed content.  The reception must be for private viewing/listening only and not the public at large.

Exceptions for private end of chain recipients need not have these further qualifications: a ‘lawful use’ or lawful dealing (EU, NZ); no independent economic significance (UK, NZ); a use that is not an infringement of copyright (CA); or communications which are not infringements (AU).

On the other hand some jurisdictions have omitted elements that would seem to be required for clarity.  For example, UK section 28A when listing the sole purposes for which transient reproduction is permitted does not expressly mention ‘for the enabling of the receipt of a work’.

Law Reform

Although it has not introduced a statutory exception for the transient reproduction involved in streaming, the US has signed into law the Music Modernization Act 2018.  This requires audio streaming service companies, such as Spotify, to obtain and pay for mechanical rights licences from the composers/publishers.  Even though what they deliver vaporises on receipt – unlike a CD or LP.  The fundamental technological and legal distinction is between streams and downloads.  Streams of musical pieces, whether on demand or not, do not result in the recipient obtaining possession of a copy of the music any more than is the case with analogue radio broadcasts.

New Zealand is currently in the process of conducting a comprehensive review of its Copyright Act 1994, which was last substantively updated by amendments in 2008.  The Ministry responsible has identified many issues where it seeks submissions and one of them concerns the 2008 exceptions for all transient copying which takes place in technological communications. 

The Australian Law Reform Commission (ALRC) was tasked with a review of copyright in the light of the ‘digital economy’ back in 2013.  The ALRC, when considering the arguments for and against specific statutory exceptions for transient reproduction recommended that these should be put aside in favour of amending Australia’s Act to incorporate an American style fair use doctrine which would, among other things, apply to technologically inevitable transient reproduction.  This recommendation has yet to be implemented.

This blogger would not like to see New Zealand adopt such a fair use approach.  As we have seen in the US, the fair use doctrine must be fleshed out by the courts over some years.  The introduction of a fair use doctrine even for less complex non-digital scenarios will only lead to a magnification of legal uncertainties and as a result increased copyright litigation.  And it will be even worse for digital scenarios.  It would be better to stay with statutory exceptions, albeit somewhat better targeted and separately applying to each of the participants in an internet communication chain.

The increasing popularity of streaming services over recent years has had the incidental effect of reducing content piracy and in particular music piracy.  An international exception to infringement for recipients of streamed content which is crystal clear for courts and easy for users to understand is likely to further diminish content piracy.