In recent years, live streaming has become an emerging form of media. It is now very common for streamers to perform works created by others via live-streaming platforms. In accordance with the provisions set out in article 37 of the Copyright Law, when using a work created by others for performance, the performer (including an individual performer or performing entity) must obtain permission from, and pay compensation to, the copyright owner.
In organizing a performance, the organizer must obtain permission from, and pay compensation to, the copyright owner. Streamers must also abide by these provisions when performing works created by others via live-streaming platforms.
When a live streamer performs a work created by others via a live-streaming platform, does this constitute an infringement? Does it come within the four corners of fair use? In practice, responses to these problems should be determined according to the specific conditions of the works concerned.
If the work’s term of protection has expired, the performance by streamers of a work created by others via live streaming does not constitute an infringement. A work’s term of protection is the lifetime of the author plus 50 years after his or her death. When a work’s term of protection has expired, the work will enter the public domain. Performers may perform this work without obtaining permission from or paying compensation to the copyright owner. For example, the reciting of Viewing the Waterfall at Mount Lu, written by Li Bai (a famous ancient Chinese poet), by a live streamer during performance does not constitute an infringement.
However, it should be noted that the term of protection for the right of authorship, the right of alteration, and the right of integrity of an author is not limited. Therefore, live streamers still have the obligation to show the identity of the original author and respect the right of alteration and the right of integrity of the original author when performing a work when its term of protection has expired. In practice, some streamers “spoof” the works of others when performing. They may be suspected of infringement even if the work’s term of protection has expired. For example, the descendants of composer Xian Xinghai have the right to claim infringement against the act of “spoofing” The Yellow River Cantata.
Streamers perform copyrighted works created by others via live streaming. Since the works are still copyrighted, in performing, the streamers should obtain permission from, and pay compensation to, the copyright owner according to law. In practice, some live-streaming platforms advocate that the performance of works created by others via live-streaming comes within the four corners of fair use. Is this ground of defence tenable? The answer is no.
Paragraph 9 of sub-article 1 of article 22 of the Copyright Law stipulates that “when performing a published work free of charge, the said performance neither collects any fees from the members of the public nor pays compensation to the performer”, which comes within the four corners of fair use. According to the above-mentioned stipulations, fair use must simultaneously meet the following three conditions:
- the work being performed has already been published;
- no fee has been collected from the members of the public, and
- no compensation is paid to the performer.
Live streaming essentially meets the first two conditions. Regarding the third condition, most platforms pay compensation to the streamers in the form of a fixed salary or commission. Though some platforms do not pay compensation to streamers, the streamers can still receive benefits in the form of rewards and gifts from online users. In the opinion of the author, if a streamer receives such benefits, it can be maintained that he has received compensation.
Unauthorized performance of a work created by others via live streaming infringes upon the work’s right of performance. The definition of the “right of information network dissemination” provided for in the Copyright Law revised by China in 2001 is too narrow. It only refers to “interactive” network dissemination acts. Namely, online users can obtain a work at the time and place of their own choosing. As far as live streaming is concerned, live performance does not fall into the category of protection of the “right of information network dissemination” because online users cannot watch live performances at the time of their choosing.
However, works performed via live streaming are protected by the right of performance. Paragraph 9 of article 10 of the Copyright Law stipulates: “the right of performance, i.e., the right to perform or broadcast a work in public by virtue of any means.” Live performances hosted by live-streaming platforms and broadcast to non-specific users are considered public performance; dissemination through the internet also belongs to one of the “any means”. Therefore, the performance of works created by others via live streaming does infringe upon the right of performance of the said works.
The liabilities for infringement of live-streaming platforms. Live-streaming platforms may be the employers of streamers, or at least provide technical platforms for the performance of streamers, and also provide live-streaming promotion, streamer management, charging (reward) management and settlement services, and derive benefits from these. If an employer-employee relationship exists between the live-streaming platforms and the streamers, then the liabilities for infringement by live streamers must be borne by the live-streaming platforms. If no such relationship exists, the live-streaming platforms and the streamers must jointly bear the liabilities for infringement.
In view of the above-mentioned legal risks, the author believes that live-streaming platforms should intensify management and control over the live contents of the streamers, and should adopt the practices of traditional media for live programmes by conducting pre-control and examination. They should set up a pre-review process and a pre-examination system for live contents (playscripts) along with a monitoring system for the live-streaming process in order to avoid the risks of copyright infringement by live performance.
Sun Yan is a partner at Tian Yuan Law Firm. He can be contacted on +86 10 5776 3888 or by email at email@example.com