Twitch has had quite a stretch in recent years, especially during lockdown. The famous canal streamer Basque, Ibai Llanos, got an exclusive interview with Messi last August on his official debut with Paris Saint-Germain. It barely lasted a few minutes, but it made history. The moment was followed by more than 300,000 viewers.
With the rise of live shows, a multitude of doubts have arisen as to whether the use of music in these transmissions may violate copyright. The platform is clear: it has warned of massive claims and content cleaning to those users who violate the rights of copyright. The system is simple: three fouls or strikes and the “repeat offender” can lose their account and say goodbye to their income and followers.
It’s an old problem. The issue equally affects other websites that feed on audiovisual content from users. Many creators are not aware that the music with which they enliven their publications has copyright and they cannot use it without a license. Even if it is only a fragment or it is heard in the background.
Frequently, the mistake is to believe that having a subscription to Spotify allows you to play the songs in live shows. But, as Verónica Pedrón, a lawyer specialized in Technological Law at the firm Terms and Conditions, explains, “acquiring the work does not give you the right to communicate it openly to the public.”
This does not mean, however, that a streamer can’t put music on your videos. The intellectual property regulations grant the authors of works (songs, photographs, drawings, etc.) the exclusive right to authorize or prohibit their use by third parties. For this reason, says Belén Álvarez, director of the Department of Cultural Law at Gabeiras & Asociados, whoever wants to use them “needs to have a license, unless the use is covered by a limit to copyright, such as citation or the parody”.
What is allowed is “broadcasting your own music, tracks from the Twitch library or the one for which you have permission,” adds Pedrón. They are forbidden, says the lawyer, “radio-type programs, DJ sessions or covers of third-party songs ”.
The recommendation of Julio Rodríguez, lawyer and director of innovation at Gowper Law Firm, is “to check the marketing licenses and, in any case, subscribe to systems that grant them, such as Epidemic Sound, since they mediate directly with the incumbent companies.” Unauthorized use, he reflects, harms authors because it excludes them from the benefits of their exploitation, “and Twitch or YouTube can generate audiences of more than a million viewers.” More complaints have motivated the platforms to get serious about this issue. While YouTube uses a tracking system (Content ID) that allows the author to block the video or to monetize it, Twitch continues with its policy of mass deletion of offending clips or videos with the consequent complaints of the streamers.
The arrival of massive impact technologies has not especially altered regulation in the musical field, which has become obsolete. The platforms, Álvarez affirms, “tend to hide behind the safe harbor system to avoid paying intellectual property rights.” It is a formula implemented in the United States by the Digital Millennium Copyright Act (DMCA) that exonerates these giants for storing protected works without authorization “as long as they have no knowledge of the infringement and, likewise, if after notifying it, they immediately disable access to content ”, he summarizes. The algorithms do not distinguish if the use is legal or not, leading the creator to a slow and tedious legal battle. There are many examples of how it affects music content publishers. One of them is the youtuber Jaime Altozano. Content ID detected that one of his videos contained fragments of a musical work with copyright and blocked it. The creator had to speak with the record company to make them see that he was making a legitimate use (of appointment) and to be able to upload it to the channel.
The streamers, underlines Vicente Arias, partner of Technologies, Media and Entertainment at Eversheds Sutherland, they have the same legal problem on all platforms and around the world: “They must have permission to use music in their pieces.” Faced with systems such as the safe harbor, which entails greater cost and difficulty, others are erected that “establish a compensatory mechanism that avoids having to obtain permission to use music incidentally.” This, the lawyer points out, “is the turn that the EU is taking with the Copyright Directive in the Digital Single Market”. Although, he clarifies, “it does not cover commercial uses.”
This directive, dubbed Copyright and approved in 2019, “establishes for the first time the responsibility of platforms for the protected content they share and urges them to obtain licenses,” says Álvarez. In this way, he explains, “they will have to pay rights to the holders.” What it encourages are licensing agreements and that “authors and owners participate fairly in the revenues obtained.”
The controversy is served. As Julio Rodríguez points out, this precept, which was the subject of intense scrutiny, means that the platforms will be obliged to eliminate the infringing content “without the rights holders even having to request it.” It is discussed, it explains, about the filters that allow this control “without seriously affecting other rights of digital users.” That is, without opening the melon of the previous censorship.
Collision of rights
Minister Miquel Iceta announced that Spain will incorporate the Copyright Directive soon. Regardless of the final model, there are actions of the platforms that, according to the lawyer of Gowper Law Firm, Julio Rodríguez, may be illegal because they are excessive. The solution to cancel an account to avoid any responsibility could collide with the Civil Code, “which prevents the abuse of rights.” On the other hand, points out Vicente Arias, partner of Eversheds Sutherland, the lawsuits for copyright they do not compensate the owners, so “it is also convenient for them to enable collective management mechanisms that hold the websites responsible for these uses.”