The Intellectual Property Office of Trinidad and Tobago (IPO) is compelled to respond to the recent debate on live streaming and to hopefully end the conjecture. In today’s modern digital world, live streaming apps and facilities like Facebook live have become extremely popular.
These apps allow users to potentially stream live events using their platform. The right to stream live however is not a free for all or a carte blanche right. This technology has raised a host of legal issues, primarily in the areas of copyright infringement.
The IPO advises the public to read the fine print found on the user agreements of the apps before they think about streaming live events.
These apps clearly ban users from posting content that violates others’ copyright and trademark, in their standard Terms of Service, however these warnings are often ignored. Further, and even in the absence of any such terms, the local laws of Trinidad & Tobago prohibit such live streaming.
Anyone rebroadcasting an entire live simulcast is committing copyright infringement and can be subject to substantial fines. It matters not whether you are doing it for “for money or for love”. There is no distinction at law.
Additionally, Trinidad and Tobago is not a “baby steps “or outdated nation with respect to intellectual property laws. Trinidad and Tobago possesses some of the most updated copyright and generally IP laws in the Caribbean and measures up right along with other world nations. The internet is not immune to our laws. Nor are we “different “to other countries.
There is an international legal framework which has to some degree harmonized laws of countries. Examples of treaties whose provisions are in place in our national copyright act and other IP legislation includes the Berne Convention for the Protection of Literary and Artistic Works 1886 and the Paris Convention for the Protection of Industrial Property 1883. There are also modern treaties that also speak to trade included such as the agreement on Trade – Related IP Rights (called TRIPS) under the World Trade Organization ( WTO).
Specifically, we are also members of the two WIPO (a specialist UN body on IP ) treaties that govern mutual IP law minimum protection and enforcement requirements that were designed to strengthen copyright protections on the internet. These are the WIPO Copyright Treaty (WCT) and the WIPO Performers and Producers Rights Treaty (WPPT) of 1996. These are the main international treaties that addresses copyright and related rights on the internet. These treaties are still very relevant today.
A quick glance at our website provides a plethora of information on intellectual property from collective management of music to franchising and branding and copyright. The public and other agencies are encouraged to utilize this site as an authoritative source of information and to engage the Intellectual Property Office on IP issues. We are also on Facebook via ipotrinbago and yes we even tweet.
Upcoming events and activities are also posted on our medium and through the corporate communications department of the AGLA.
So back to streaming.
The best approach in determining whether your broadcast is violating copyright law is to simply use your common sense. If you paid to enter a venue and watch the content, that content is likely protected by copyright. Good examples include If you live stream an entire movie in the theater, or you are at a music concert for example, you are likely violating copyright law by streaming the event for others to “take a view “. Similarly, live streaming a concert would likely expose you to copyright liability. Even broadcasting live sporting events carries significant legal risks as networks pay large sums of money for the exclusive right to broadcast games live.
Facebook live and other streaming apps are great tools but please read the fine print, and take heed of our domestic IP laws, to ensure that you are using it wisely and not infringing on the rights of others.
Copyright protected content is often protected online by technological protection measures (“TPMs”). TPMs are defined in section 3 of the Copyright Act of Trinidad and Tobago Chap 82:80 as amended by the Copyright (Amendment) Act No. 14 of 2020 (“Copyright Act”) as “any technology, device or component that, in the normal course of operations, is designed to prevent or restrict acts, in respect of works or objects of neighbouring rights, which are not authorised by the owner of the rights or permitted by law”. These TPMs seek to protect copyright and neighbouring rights in the online space.
Circumventing TPMs is also defined in section 3 of the Copyright Act. It states that circumventing TPMs “means avoiding, bypassing, removing, deactivating or impairing technological protection measures, including descrambling a scrambled work or decrypting an encrypted work”. Devices which seek to circumvent these TPMs are called TPM circumvention devices. Section 3 of the Copyright Act again defines TPMs circumvention device as “a device or means that- (a) is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of technological protection measures; and (b) has only a limited commercially significant purpose or use other than to circumvent technological protection measures”.
These TPM circumvention devices are often called ‘illicit streaming devices’[i] or ‘illegal streaming devices’[ii] as they allow for protected content to be accessed without the permission of the rights holder/s, namely without paying the required fee or subscription etc. It should be noted that a streaming device only becomes an illegal streaming device when its software permits the circumvention of TPMs. Such actions can include the addition of software, ‘jailbreaking’ or modifying the device to circumvent TPMs.
There are criminal offences under section 41(2) of the Copyright Act pertaining to a person who “makes, imports, sells, distributes, lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, a technological protection measures circumvention device, knowing or having reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business”, (emphasis added).
It cannot be re-emphasized enough that this offence pertains to persons committing acts referred to above such as importation, sale, and/or advertising of illegal streaming devices in the course of business, i.e. commercial activity. The focus of this provision is for persons who earn money through the importation, advertising, sale etc. of illegal streaming devices which propound piracy services, NOT individuals in their private lives with no commercial connection. While there is civil infringement under section 34A of the Copyright Act regarding circumventing TPMs, criminal liability pertains to persons operating in the commercial realm.
The obligation of Trinidad and Tobago to provide adequate legal protection and effective legal remedies against the circumvention of TPMs is outlined in two (2) international Treaties which Trinidad and Tobago is a party to, namely the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Article 7) and the Beijing Treaty on Audiovisual Performances (Article 15).
A copy of the Copyright (Amendment) Act No. 14 of 2020 is available online at: http://www.ttparliament.org/legislations/a2020-14.pdf.
For a list of streaming services available in Trinidad and Tobago please see the following link: http://ipo.gov.tt/ipo-news/list-of-streaming-services-that-are-available-in-trinidad-and-tobago/
By: Regan Asgarali
Intellectual Property Office
Legal Officer II
Intellectual Property Office