Streaming and Copyright: Legal Aspects & Liability (2023)

In today’s digital world, streaming content has become one of the most popular pastimes. Whether movies, music, games or other media – millions of people access streaming platforms every day to enjoy their favourite content. In this comprehensive blog post, we will discuss the legal aspects and liability surrounding streaming and copyright from the perspective of an experienced lawyer. We will focus on laws, recent court decisions, examples and FAQs.

Table of contents

• Copyright: basics and legal framework
• Types of streaming: legal, grey area and illegal
• Legal aspects of streaming
• Liability for copyright infringement through streaming
• Recent court rulings on streaming and copyright law
• FAQs on copyright and streaming
• Concluding thoughts on streaming copyright

Copyright: basics and legal framework

Before we dive into the legal aspects of streaming, it is important to have a basic understanding of copyright and related laws. Copyright is an area of law that deals with the protection of the rights of authors, the creators of works. This includes, among other things:

• Literary works (e.g. books, magazines, newspapers)
• Artistic works (e.g. paintings, sculptures, photographs)
• Musical works (e.g. compositions, song lyrics)
• Dramatic works (e.g. plays, screenplays)
• Film works (e.g. feature films, documentaries)
• Sound carriers (e.g. CDs, records)
• Software (e.g. computer programs, apps)
• Databases (e.g. collections of information)

Copyright grants the author of a work certain exclusive rights, such as the right to reproduce, distribute, publicly perform or recite the work, and to adapt the work in derivative form (e.g. by translation or adaptation).

The legal framework for copyright varies from country to country, but many countries are members of international agreements, such as the Berne Convention or the TRIPS Agreement, which prescribe minimum standards for copyright protection. In the European Union, copyright is harmonised by Directive 2001/29/EC (InfoSoc Directive) and other specific directives.

Types of streaming: legal, grey area and illegal

Streaming is the transmission of audio and video data over the internet in real time without the data being permanently stored on the user’s terminal device. There are different types of streaming, which differ in terms of their legality:

• Legal streaming: These are streaming services that have the necessary licences from the rights holders and thus respect copyright. Examples of legal streaming platforms are Netflix, Amazon Prime Video, Spotify and Apple Music.
• Grey area: This category includes streaming services for which the legality is not clear. Such platforms may offer copyrighted content without the consent of the rights holders, but users can usually argue that they are assuming a legal private copy. Examples of such services are YouTube or Twitch, where users can upload their own content that may contain protected works.
• Illegal streaming: In this type of streaming, copyrighted content is offered without the permission of the rights holders. Such platforms violate copyright law and can have legal consequences for both operators and users. Examples of illegal streaming websites are those that offer current cinema films or TV series free of charge and without the permission of the rights holders.

Legal aspects of streaming

The legal aspects of streaming are complex and depend on various factors, such as the streaming service used, the type of content streamed and the legislation of the country concerned. Some of the most important legal issues related to streaming are discussed below:

Reproduction right: The reproduction right is one of the core rights of the author. In streaming, the data is usually not permanently stored on the user’s terminal device, so that no complete copy is created. As a result, the reproduction right is not infringed in many cases. However, there are also cases where temporary copies are created, e.g. in the browser cache. Whether such temporary copies constitute copyright infringement depends on the legislation of the respective country and the specific design of the streaming service.

Right of communication to the public: The right of communication to the public refers to the author’s right to decide whether and how his work is presented to the public. In streaming, the right of communication to the public can be infringed in various scenarios, such as when copyrighted content is offered without the consent of the rights holder. Whether the use of such a streaming offer is unlawful for the individual user depends on various factors, such as knowledge of the illegal origin of the offer or the possibility of accepting a private copy.

Liability for illegal streaming: Liability for illegal streaming can affect both the operators of streaming platforms and the users. The operators of illegal streaming services can be held liable for copyright infringement, while users can also be liable in some countries, for example if they knowingly use illegal streaming offers.

Geoblocking and licensing law: Geoblocking is a technique used by streaming services to restrict access to content in certain geographical areas. This usually happens due to licensing agreements that oblige the service to make content available only in certain regions. Circumventing geoblocking measures, e.g. by using VPNs, may have legal consequences in some countries as this may be considered a violation of the licence agreements.

Liability for copyright infringement through streaming

Liability for copyright infringement in the context of streaming can affect different actors, including streaming platform operators, uploaders of copyrighted content and users of streaming services. The different types of liability and possible sanctions are discussed below:

• Operator liability: Streaming platform operators can be held liable for copyright infringement if they knowingly offer illegal content or fail to take reasonable steps to remove such content from their platform. The liability of operators may result in civil and criminal penalties, including claims for damages, injunctive relief and even imprisonment in serious cases.
• Liability of uploaders: Persons who upload copyrighted content to streaming platforms without the consent of the rights holders can also be held liable. This may include civil claims such as damages and injunctive relief, as well as criminal sanctions.
• User liability: The liability of users who use illegal streaming services is a legal grey area in many countries. In some cases, users can be held liable if they knowingly use illegal streaming services, for example if they are aware of the illegal origin of the content. Possible sanctions can be civil claims (e.g. claims for damages) or criminal sanctions (e.g. fines). However, the enforcement of such claims against individual users is often difficult and associated with considerable legal hurdles.

Current court rulings on the subject of streaming and copyright law

Some current court rulings dealing with the topic of streaming and copyright are presented below:

• ECJ, Judgment of 26 April 2017, C-527/15 – Filmspeler: In this case, the European Court of Justice (ECJ) ruled that the sale of multimedia players that allow access to illegal streaming offers constitutes copyright infringement. The court also clarified that the use of such illegal streaming offers by consumers can also constitute copyright infringement.
• Federal Court of Justice (BGH), Judgment of 21 September 2017, I ZR 11/16 – The Walking Dead: In this case, the BGH ruled that the operators of an illegal streaming portal can be held liable for copyright infringement if they knowingly offer copyrighted content without the consent of the rights holders. The BGH referred the case back to the Munich Higher Regional Court to make further findings on the liability of the operators.
• ECJ, Judgment of 29 November 2017, C-265/16 – VCAST: In this case, the ECJ ruled that a cloud-based recording system that enables the recording of television programmes and makes them available on the internet without the consent of the rights holders constitutes copyright infringement. The court found that such services are not covered by the private copying exception in EU copyright law.

FAQs on copyright and streaming

Below are answers to some frequently asked questions about copyright and streaming:

Is streaming copyrighted content always illegal?

No, streaming copyrighted content is not always illegal. If you use a legal streaming service such as Netflix or Spotify that has the necessary licences from the rights holders, streaming the content offered is legal. However, using illegal streaming services that offer copyrighted content without the consent of the rights holders is copyright infringement.

Am I liable as a user of an illegal streaming service?

The liability of users who use illegal streaming services is a legal grey area in many countries. In some cases, users can be held liable if they knowingly use illegal streaming services, for example if they are aware of the illegal origin of the content. However, enforcing claims against individual users is often difficult and involves significant legal hurdles.

How can I determine whether a streaming service is legal?

To determine whether a streaming service is legal, you should pay attention to some indicators, such as the presence of an imprint and privacy policy, the range and quality of the content offered, the service’s business model (e.g. paid subscriptions or ad-supported) and the service’s response to complaints from rights holders. If you have doubts about the legality of a streaming service, you should use trustworthy alternatives.

Can I be warned off for streaming copyrighted content?

In some countries, such as Germany, users who use illegal streaming services can receive warning letters from rights holders. These warnings usually demand the cessation of illegal use and the payment of damages and legal fees. The likelihood of receiving such a warning varies depending on the country and individual circumstances. To minimise the risk of warning letters, you should use legal streaming services.

Is the use of VPNs to circumvent geoblocking legal?

The legality of using VPNs to circumvent geoblocking measures is disputed in many countries. While the use of VPNs per se is legal in most countries, in some cases the circumvention of geoblocking may be considered a violation of the streaming service’s terms of service or licensing agreements. In some countries, such as the USA, such circumventions are also prohibited by law. To avoid legal risks, you should inform yourself about the laws in your country and refrain from using VPNs to circumvent geoblocking if it is illegal.

Final thoughts on streaming copyright

The topic of streaming and copyright is complex and characterised by numerous legal aspects. It is important for users to inform themselves about the legality of the streaming services they use and to resort to trustworthy offers in order to avoid legal risks. Streaming platform operators and content uploaders should ensure that they obtain the necessary licences from rights holders and respect copyrights.

Finally, legislators and rights holders should work together to ensure copyright protection in the digital age without compromising innovation and access to cultural content for the general public.