Many of the users of different streaming platforms have received requests for withdrawals of content based on alleged music rights infringements under the DMCA from music rights holders.

In particular, Twitch has been affected. This platform has published a statement entitled "Music-Related Copyright Claims and Twitch" (available here) where they address the reasonable frustration that these actions are generating in content creators and explain what the DMCA is, how to ensure that broadcasts respect the work of others (and what they should do if they do not) and what changes they are implementing to help make the DMCA (and similar laws) easier to understand. We agree that copyright law and the DMCA are indeed not simple issues, but "minimizing legal terminology" is not enough to clarify whether these actions are mandatory, let alone to protect the legitimate interests of content creators in respect of their copyrighted works.

What is at stake for platforms and users of streaming in particular of video games?

Before solving the first question, we want to briefly explain what is at stake for platforms, content creators and users of streaming platforms.

This is an industry with a totally disruptive force, which has put an end to the pre-existing technology of low-quality consoles and disconnected users. The leap to massification has come through e-sports: the main live broadcast platforms popularized the concept of capturing the highlights of the games and re-broadcasting the original content, followed by the creation of their own content broadcast on ad hoc channels and revenues in the millions, for platforms and creators.

Viewers can enjoy original content on these channels, but the new creators will have to stand out even more creatively to gain followers and make a place for themselves in a tremendously competitive space. At stake are the revenues of the platforms and creators, faced with the risk of losing the market niche they have built with their dedication and creativity.

Main video game streaming platforms:

• Twitch (belonging to Amazon since 2014): It is one of the most popular streaming platforms where all kinds of video games are broadcast live, with a user audience of more than 10 million visits per day.

• YouTube gaming: It is one of the dominant platforms for live broadcast games, which allows users to target specific audiences only with Google's tools, such as Google AdSense.

• Vaughn Live (antes InstaGib) : It is a platform-independent and does not require the installation of special streaming software. Players can record their videos in superior quality.

• SmashCast.TV: Through this platform, users can generate income from their broadcasts.

• Mixer (bought by Facebook Gaming): Unique and more specialized than the other platforms, it allows its live game streaming users to join co-creators or other related users of the platform and co-broadcast up to four contents at a time.

What is the DMCA and is it directly applicable in Spain or the European Union?

The Digital Millennium Copyright Act (DMCA, available here) is a US law that regulates copyright especially in the digital environment, i.e., the Internet. On the one hand, authors' rights are protected, making the production and dissemination of technology, devices or services aimed at circumventing the respect of these protected rights (basically related to digital rights management or DRM) and also unauthorized access, regardless of whether there is a real infringement of copyright itself.

But the DMCA also exempts Internet service providers and other intermediaries, such as Twitch, from direct and indirect liability. Twitch, based in California, is subject to this US federal regulation. This does not imply that a user or creator domiciled in Spain or in the European Union is directly liable.

The Twitch case

The only basis on which a user or streamer subscribed to Twitch may be obliged to comply with this regulation is the express acceptance of the Terms of Service of this platform. With respect to point 8. User Content, the user or streamer grants one in subparagraph a. a License to Twitch to, among others, use the name, identity, image and voice (or other biographical information) submitted by the user or streamer in connection with such User Content; and in subparagraph b. Representations and warranties relating to User Content, Twitch indicates that the responsibility for User Content and the consequences of posting it rests with the user, and that in particular, such (2) User Content will not (a) infringe, violate or usurp any rights of any third party, including copyrights, trademarks, patents, trade secrets, moral rights, privacy rights, image rights or any other intellectual property rights, etc.

These non-infringement obligations are ratified in points 9. Prohibited conduct, where the user is OBLIGED NOT to infringe any law, not to breach any contract, not to infringe any intellectual property rights or third party rights and not to commit any unlawful act, and in particular: i. not to create, upload, transmit, distribute or store content that is inaccurate, illegal, infringing, etc.; and 10. Respect for copyright, by inviting copyright owners or their agents to report content that they consider infringing.

However, the above does not in any way imply that the DMCA applies directly to content created by a streamer, as long as the streamer is not a U.S. resident.

Any dispute must be resolved by a pre-established rule and by an independent third party. So, Twitch imposes in paragraph 15. Disputes, subparagraph d. Applicable law and jurisdiction, (i) that such rules shall consist of the Terms of Service (the Agreement) and the laws of the State of California and the U.S. federal laws, and the third party enforcer shall be an arbitrator in Santa Clara County, California.

Again, this does not apply directly to a user or streamer who is a resident of the European Union or Spain. In fact, Twitch acknowledges this in the section (ii): the laws of the domicile of the user or streamer will be applicable, before the competent courts of that territory.

What rules apply in Spain and the European Union to copyright on musical works?

In Spain, the Royal Legislative Decree 1/1996, of April 12th, which approves the revised text of the Intellectual Property Law (available here), and a series of European Union Directives (Directive 2006/116/EC, Directive 2001/29/EC, etc.) are directly applicable.

All of the above, including DMCA, are based on the Berne Convention for the Protection of Literary and Artistic Works (WIPO, 1971) which is an international treaty originally adopted in 1886 and currently signed by 176 countries, which is above their national laws and the most recent WIPO Copyright Treaty, signed in Geneva on December 20, 1999.

In general terms, copyright refers to any original artistic, literary or scientific creation expressed by any means or medium, tangible or intangible, currently known or to be invented in the future, as established in Article 10 of the Spanish Intellectual Property Law.

In particular, and without limitation whenever it is an original creation, it is protected:

• Musical works, with or without lyrics. 
• Cinematographic works and any other audiovisual works. 

The owners of such works may exercise complete control over them, and depending on the law applicable, without ever being able to renounce certain powers, such as deciding whether their work is to be disclosed and in what form, or the recognition of their status as authors (paternity), or respect for the integrity of the work against any deformation, modification, alteration or attack on it that would prejudice their legitimate interests or undermine their reputation (right of integrity), etc.

Lastly, the new Directive (EU) 2019/790 on copyright approved by the European Parliament which contains two particular sections that have been subject to intense scrutiny by activists and Internet giants: Articles 15 and 17 (formerly 11 and 13).

The content of the new directive is extremely controversial. Article 17 makes platforms (YouTube, Facebook, etc.) responsible for users who upload infringing content, without right holders even having to request the removal of such content. Implementation should occur no later than June 7, 2021 but there is still discussion about the technological mechanisms that would allow the intended level of control without seriously affecting other rights of digital users.

Is the streamer's or creator's own work protected by copyright law?

The previously mentioned regulations indicate that, if on the one hand the works of the music authors are protected, without limitation, on the other hand, those works of an audiovisual type, in which streaming can be included, are protected, as long as they comply with the requirement of originality.

Strictly speaking, this regulation does not contemplate reproduction or streaming, but linked to Law 34/2002, of July 11, on Information Society Services and Electronic Commerceit does have legal standing.

Protection does not differ according to the type of work, nor does the fact that a work is copyrighted make it possible to infringe in whole or in part another work. For example, when a stream is so original as to be protected, the use of music tracks must in any case respect the rights of its author, i.e. have the proper licenses for use and reproduction.   

It must be taken into account that what must be the original creation of the author or streamer is not the ideas themselves, but rather the way in which they are expressed: the style of the audiovisual content must be innovative or distinctive of its author.

How to react to notifications of copyright infringement on musical works made by a platform?

DMCA notifications to platforms have led some of them, such as Twitch, to act as follows:

• Immediately remove VoDs and clips identified in the notifications,
• Send the information to the channel owner, and
• To follow up on possible claims.  

Twitch admits to having or being in the process of processing thousands of DMCA notifications per week related to old creator files, mostly for clip track fragments. According to Twitch's data, "more than 99% of the notifications were about topics that streamers were playing in the background of their broadcasts. 

These actions by the platforms cannot be automatically considered justified and legal under the above mentioned regulations. The streamer or creator of original content on these platforms, who is affected by the actions derived from alleged violations of music rights, does not have to be forced to remove all his VoD files and clips containing allegedly infringing music material, without first carrying out an assessment of different elements.

1. Posible derecho a usar el material musical, basado en la doctrina legal del «fair use» o uso legítimo. Esta doctrina judicial de los EE.UU. permite usar música con derechos de autor en casos sin que haya que pagar por ello un canon o pedir permiso a los propietarios, si se cumplen cuatro supuestos:

• Purpose of the use of the material (whether it is purely commercial or not). Whether the work used (a song) is transformed from the original, provides new information or meanings or elements of parody or criticism.
• Nature of the copyrighted material. If music from factual works is used, there is a greater chance that legitimate use of the piece can be appealed.
• Use of the whole work or a fragment. In the case of fragments of the original content, the likelihood that it will be considered fair use increases. For example, certain fragments are used with a didactic character.
• Effect that the use of the content may have on the original piece. If the use is detrimental or harmful to the original song or its author, or the ability of the rights holder to obtain his or her own benefits from the work is diminished, it will not be considered as fair use.

Actual compliance with these requirements is determined in any case by the courts.

2. Compliance with the formal requirements and respect for any rights of the streamer or creator The notification of a claim for alleged infringement of copyright in a musical work must include:

• The specific details of the work
• The identity of the holder of those rights
• Contact details
• Information on possible sanctions of the platform itself and possible legal consequences
• Possibility of making allegations, including challenging the legitimacy of the claimant.

3. Management of copyright infringements without harming the rights of the streamer or creator. Proper assurance must be given that he/she:

• Has no license to use the musical work
• Would not be authorized for use based on the doctrine of fair use
• The musical work can be excluded from his/her VoDs and clips without having to remove them, in a reasonable time.

From the moment the platforms know that certain content could be illegal, if they act expeditiously and remove it, the platform will not be held liable in a U.S. court -- for any of the major infringements described as "primary infringement," "contributory infringement" and "vicarious infringement. Platform take down decisions would seek to avoid any liability. However, under Spanish law, this could be considered an abusive practice based on Article 7.2 of the Civil Code, as it entails an overreach to which the law does not grant protection because it generates negative effects - i.e., among others, damages.

Por ejemplo, YouTube es de las plataformas que tiene uno de los sistemas más avanzados y con mayor ponderación a la hora de proteger los derechos de autor, incluyendo medidas limitativas de minuto y un sistema de rastreado llamado «Content Id», además de un procedimiento de «take down» más ponderado. Pero otras alternativas, como las ofrecidas por Twitch consistente en el borrado masivo en las bibliotecas de VoD y clips, en un plazo de solo tres días, podría parecer que buscan exonerarse de responsabilidad a toda costa, sin tener en cuenta posibles consecuencias abusivas  que en España o la Unión Europea no estarían amparadas.

How can we help you at Gowper?

If you are a streamer or creator of original content on any streaming platform and you want to use recorded music in your transmission, always make sure you have a license for it from the owner of all the rights of that music. There are license offers such as Soundtrack by Twitch, Soundstripe, Monstercat Gold, Chillhop, Epidemic Sound or NCS.

If you have made use of music in your videos and have received a notification of copyright infringement, the first thing you should do is check whether you have been granted any kind of license for that work or whether you could obtain it, or if you think you were making a legitimate use of it, in good faith and without prejudice.

You should also check if you have been advised in the notification of all the pertinent information about the alleged infringement.

If you are in doubt as to whether the use you have made might be permitted, or if you think you might be able to obtain authorization, or if you are only offered the alternative of having all your videos containing the said musical work removed, you should contact your Intellectual Property agent or lawyer and seek legal advice on how to proceed.

At Gowper we are IP and Copyright lawyers and we can help you find the legal solution that best protects your interests, in compliance with the law. For this, we have developed the Lilac Solutions, which covers in an affordable and fast way the legal needs that you may have in terms of IP.