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By Shyikh Mahdi

This piece was produced for and published in the Daily Observer,  Law & Justice section.

With a Smartphone in hand, literally everyone can broadcast live videos to the world these days especially with the popular live streaming apps like Meerkat, Periscope and most recently, Facebook Live. In a number of instances, these apps came in super handy on a diverse range of issues, from the footages of failed coup in Turkey to the broadcast of the season premiere of Game of Thrones season five. In Bangladesh, the most recent instances are glaringly visible on the Facebook newsfeed of most Bangladeshi netigen – broadcast of the cricket matches of Bangladesh and the pirated version of a newly released movie ‘Aynabazi’. Unfortunately, with the rapid technological progress and popularity of this ‘Live’ feature of facebook, the developers are clearly having issues with the protection of intellectual property online; especially when it comes to broadcasting live sports events or an artistic production like a concert or movie.

In a recent verdict, (The Football Association Premier League vs. John Doe), the Supreme Court of Israel held that the owner of a site which offers the viewing of sporting events through ‘streaming’ technology has infringed copyright laws. The main question that the court deals with is whether ‘streaming’ technology constitutes a ‘transmission’ of information, as per the requirements of the general copyright law. The answer to this question is a bit complex, because traditionally, the transmission of information was defined as information leaving location A and arriving at location B. In case of live streaming, apparently there is no transfer of information. Consequently, the court ruled that streaming is actually much more similar to the ‘classic’ infringement of ‘broadcasting’ – allowing the public to view a production without having a copy of the production stay in the possession of the viewers at the end; this is quite different from illegal copying or downloading of infringing material.

But the complexity of the problem thickens when Facebook live was launched a few months ago. Unlike other media sharing sites like YouTube and SoundCloud, Facebook did not seem to have a mechanism for detecting copyrighted material inside of a streaming video, because of the ‘liveliness’ of the live video. YouTube uses the “Content ID” technology, a prominent feature of Google which scans the content for copyrighted materials and issues automatic take-down notices under the Digital Millennium Copyright Act (DMCA). However, this tech hasn’t been developed yet to use for videos that are streamed live.

Just like Meerkat and Periscope, the copyright policy of Facebook is quite clear in this regard, and reports on the DMCA takedowns on Facebook portray a manual reporting process – someone who is watching a live stream finds something illegal and manually reporting the user for copyright infringement; then it is taken down. Many digital content creators have reported a number of instances where Facebook did not take down content even when it had been reported as a blatant copy of an original work.

There is, however, another tricky side of the coin. Weighing the losses of live streaming of copyrighted materials against the popularity and accessibility of the content, mega-corporations seem to have a complacent view on this issue. For instance, Jeff Bewkes (CEO of Time Warner that owns HBO channel) explains that piracy and illegal streaming leads to more penetration, more paying subs, and more health for HBO, less reliance on having to do paid advertising. According to this view, piracy and illegal streaming is healthy for television companies by providing free advertising and distribution of their content to people and places that do not have access to their services. While the companies and artists are losing money, many artists and the contents are getting the exposure and a huge popularity without costing a penny, which in long term raises the brand value to a great extent. According to HBO, the live streaming of Game of Thrones season premiere literally set a piracy world record, and hugely boosted up the popularity of the show without affecting the subsequent DVD sales.

Nevertheless, to tackle the copyright issue Facebook has recently implemented ‘image and audio matching’ systems that help flag duplicates of existing content. But this enhancement raises an interesting question – as an artist now you have to upload your original artwork and everything on facebook since the tech requires an existing content to match and verify a duplicate in order to report infringement and subsequent takedown. This can be an implicit coercion on the artists and content creators to collaborate or share everything of their creations just to get copyright protection. The predicament still remains, and with the advent of new techs in video streaming, protecting intellectual property rights online will surely be a crucial issue in coming days.


Shyikh Mahdi is a blogger and trainee Lawyer based in Dhaka, Bangladesh. He can be reached at [email protected]

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