Float like a butterfly, sting like a copyright infringement notice
Can Copyright land a knock-out blow? Social sharing of live events
7 February 2016
On Friday night, an epic fight was occurring, and we’re not talking about the controversial bout between Mundine and Green.
Whilst Green and Mundine were circling each other in the ring, a representative of Foxtel was trying to stop a subscriber from sharing the pay-per-view event via Facebook Live.
With smartphones and social media platforms, it is easier than ever to share what we see and hear. But with Foxtel now threatening legal action against the Facebook broadcaster, many are left wondering what they can lawfully record with their smartphones.
Can I record and stream TV programs at home?
The short answer is that it depends on who is watching.
Recording free-to-air or subscription TV and streaming it to others online (e.g. via Facebook Live) is unlawful under the Copyright Act 1968 (Cth) (Copyright Act).
The same goes for Netflix or YouTube.
The makers of the videos, shows and films still own the copyright in those videos. Making recordings available to the public will breach their copyright.
The situation is different where the re-broadcast is to yourself. For example, if I recorded something happening on my TV at home and personally rebroadcast it to my phone, I might be able to rely upon an exception to infringement for ‘format shifting’. This, however, only lets me watch the rebroadcast myself, and if anyone else is watching, I would be in breach of the Copyright Act.
Rebroadcasting might also breach your contract with the broadcaster. You enter into a contract whenever you subscribe to services like Foxtel or use websites like YouTube.
Foxtel’s contract prevents subscribers infringing intellectual property rights, and makes it a breach of contract to use any device to copy, reproduce, broadcast or record their content.
YouTube’s Terms of Service state that by using their website, ‘[y]ou affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.’
Similarly, when you sign up to Facebook, you agree that: ‘[y]ou will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.’
Uploading material subject to copyright will therefore give these websites a right to remove the material, block your accounts and possibly take legal action.
Who is ‘the public’?
It is important to remember that sharing something with just your friends on Facebook, Twitter or similar sites still counts as a distribution to ‘the public’. In fact, any sharing beyond private domestic use is sharing with the public.
Can I record what I see at an event?
So it’s reasonably clear that you can’t film your TV and stream it online. Do things change if you’re actually at the event?
The first issue is the type of event. The Copyright Act defines a ‘performance’ to include live plays, puppet shows, concerts, recitals, dances, circuses, variety acts and expressions of folklore. A sporting activity is not a ‘performance’. Things get murkier though with choreographed sports like synchronised swimming, rhythmic gymnastics or WWE.
The Copyright Act grants performers of ‘performances’ protection from ‘unauthorised use’. You therefore cannot record a ‘performance’ or sell/communicate a recording of it to the public in any way, unless the performer has authorised it.
However, while this could protect Adele when she sings at the Adelaide Oval next month, it cannot stop someone at an event like a boxing match from recording what they see. This principle was established as early as 1937, when the High Court of Australia said that ‘[a] “spectacle” cannot be “owned” in any ordinary sense of the word.’ So if you erected a crane next to the Adelaide Oval and used a zoom lens, you might be okay.
If you’re just standing in the nosebleeds though, whilst you’re okay from a Copyright perspective, you are probably breaching a contract.
You enter into a contract as soon as your buy a ticket to a match, even if you never actually read the terms. For example, it is unlikely that many of the people buying a ticket to see Australia take on Sri Lanka on 22 February will have read clause 19 of Cricket Australia’s 2016-17 Ticket and Entry Conditions. This clause provides that it is prohibited to ‘make any video or sound recording or take any photograph for anything other than private, non-commercial and non-promotional purposes’. Almost all tickets to major sporting events, as well as concerts, plays and the like, will have clauses to this effect.
The current legal position means that a seemingly innocuous use of our smartphones can have significant implications under copyright and contract law. Where the profitability of exclusive licensing deals is at risk, companies do not shy away from taking action against individuals. The best course of action is therefore to avoid uploading or sharing recordings of TV and events online. If you would like more information about the law and your rights, please contact us.
 Foxtel, Residential Subscription Television Agreement (1 February 2017) <https://www.foxtel.com.au/content/dam/foxtel/support/pdf/foxtel-rsta-07-12-2016.pdf>.
 Copyright Act 1968 (Cth) s 248A(1).
 Ibid s 248A(2).
 Apologies to all those whose illusions have been smashed by this statement.
 Ibid s 248G(1).
 Victoria Park Racing and Recreation Grounds v Taylor (1937) 58 CLR 479, 496 (Latham CJ).
 Cricket Australia, 2016-17 Ticket and Entry Conditions (2016) Ticketek <http://premier.ticketek.com.au/Content/pdf/Terms_Conditions/Cricket/CRICKET16_Conditions_Of_Entry.pdf>.