Key takeaways
- Advancements in technology and the distribution of mobile media content via the Internet has increased the prevalence of pirate websites which facilitate the illegal live streaming of televised sports broadcasts.
- While the Copyright Act 1968 (Cth) (Copyright Act) is designed to protect a rights holder’s copyright in a live televised sports broadcast through the exclusive communication and reproduction rights, these rights are difficult to enforce against illegal live streaming websites in practice.
- Rights holders in Australia are frustrated with a legal landscape which is too slow to protect their copyright in live televised sports broadcasts in real-time when it is most valuable. Accordingly, sports and broadcasters should focus their efforts and resources on improving “counter-technologies” which have provided a genuine solution to the growing illegal live streaming problem.
- Rights holders in Australia should also continue to investigate the commercial viability of providing access to their copyrighted live sports content in a more affordable, convenient and varied fashion than it is currently available to audiences. After all, consumers primarily seek out illegal sports content because it is difficult and expensive to access legitimately.
Introduction
Media and sports industry experts are predicting that the consumption model for live sports broadcasts will increasingly shift from a traditional regional broadcast model to streaming services and direct-to-consumer models in the short to medium term.1 Increased fragmentation for sports media rights is not an entirely new concept and recent deals in the US involving Apple and Major League Baseball as well as YouTube and the NFL serve as persuasive evidence in support of the trend. Major sports in Australia have been more suspicious to date about how mobile media content might cannibalise the traditional regional broadcast model and have been reluctant to risk the saleability and profitability of exclusive broadcast licence arrangements which have served them so well. The fact the current television broadcast deals of the three largest professional sports organisations in Australia – the AFL, the NRL and Cricket Australia – are tied up with traditional network broadcasters demonstrates this conservatism.
Regardless of predicted trends, an inconvenient by-product of advancements in technology and the increased use of the Internet to distribute sports media content is the improved quality of illegal live streams. This quality and negligible access costs make illegal live streams an appealing means of viewing content for the casual sports fan. The days of distorted pictures, constant buffering and malware that convinced even the cheapest, poorest fans to pay for sports are over. In 2024, illegal streaming websites are slick, easy to access and use and distribute crystal clear content.
The difficulty from a legal perspective is that the rights and defences available to protect the copyright in live sports broadcasts are generally limited to technologies known at the time when those rights and defences were legislated. This creates an enforcement headache for rights holders (sports and broadcasters) given live streaming is a modern distribution method which was not contemplated when the current legislative framework was drafted.
This article outlines the current copyright laws in Australia relevant to live streaming of sporting events and considers the leading “counter-technologies” available to rights holders to protect their online broadcasting rights against unauthorised use.
How does copyright subsist in television broadcasts and live streams?
Under the Copyright Act, copyright subsists in:
(a) ‘works’ – being literary, dramatic, musical and artistic works2; and
(b) ‘subject matter other than works’ – being sound recordings, cinematograph films and television broadcasts and sound recordings.3
However, it is well-established that event organisers do not own a spectacle (ie, a sporting event)4 and, to date, Australian courts have been reluctant to protect a cinematograph production of a sporting event as a ‘dramatic work’ given the producer can have no real control or influence over naturally occurring events which is necessary to establish the element of ‘originality’5.
The elements for subsistence of copyright in television broadcasts in Australia is often mistaken or conflated with the law in other jurisdictions. The most common error is the assertion that ‘originality’, ‘human authorship’ and ‘fixation’ are necessary ingredients for copyright to subsist in a television broadcast. They are not, and in this respect television broadcasts stand in contrast to ‘works’.6 The Copyright Act states that copyright subsists in a television broadcast made in Australia with the authority of a statutory broadcasting licence7 and any authorised cinematograph film (or copy) made of the same.8
However, copyright cannot subsist in a non-tangible act of distribution so the definition of ‘television broadcast’ makes it clear that copyright subsists in its content (ie, the visual images or sounds that are encoded as signals by the broadcaster) rather than its imperceptible means of communication9. This is true regardless of the fact that the underlying content for a televised sports broadcast – the sporting event itself – is not copyrightable. The owner of the copyright is the person who provides the broadcast service (in the case of a television broadcast), determines the content of the communication (in the case of a communication other than a broadcast) or makes the necessary arrangements for the making of the film (in the case of a cinematograph film)10. As such, copyright in relation to a television broadcast in Australia comprises two exclusive rights:
(a) communication right – an exclusive right for the owner of a television broadcast to re-broadcast it or communicate it to the public other than by broadcasting it (such as an electronic transmission)11; and
(b) reproduction right – an exclusive right for the owner of a television broadcast to make a cinematograph film of it or a copy of such a film (which incorporates the corresponding exclusive communication right to cause such a film to be seen in, or communicated to the, public).12
But does an official live stream or online simulcast constitute a television broadcast for the purposes of copyright law in Australia? The Full Court of the Federal Court considered a similar question in Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Ltd [2013] FCAFC 11 and concluded that that online simulcasts of radio programs by CRA’s members did not constitute a ‘broadcast’ as that term is defined in the Copyright Act and, therefore, were impermissible under the broadcasting licence granted to them by the PPCA. This decision suggests that an online simulcast of a television broadcast does not meet the definition of a ‘broadcast’ under the Copyright Act. Rights holders intending to simulcast sporting events online must be careful when drafting their broadcasting licence agreement to ensure that the broadcasting right granted clearly extends to such distribution (and any other modern distribution methods it intends to utilise) or, at the very least, that the licence does not restrict its exclusive statutory right to communicate a television broadcast otherwise than by broadcasting it (eg, live streaming).
How is the communication right and reproduction right infringed?
For a right to be valuable, it must be enforceable. As the owner of the rights to broadcast sporting matches and events, rights holders are able to enforce their rights through claims against numerous classes of defendants connected to the unauthorised live streaming process. All options are derived from the claim of copyright infringement although effectiveness varies.
Copyright in television broadcasts is infringed, prima facie, by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright.13 Therefore, without the owner’s permission, it is an infringement of copyright for a person other than the owner of a television broadcast or cinematograph film of a television broadcast to:
(a) make a copy of the television broadcast or cinematograph film;
(b) communicate the television broadcast or cinematograph film to the public; or
(c) authorise the doing of either of those things.14
As regards the reproduction right, it is unnecessary that the infringing be done in relation to the whole of the television broadcast or cinematograph film; a ‘substantial part’ will suffice.15 ‘Substantial part’ is not defined in the Copyright Act, but it has been held to refer to the quality of what is taken rather than the quantity16 and the purpose of the copying should also be considered as part of the inquiry.17 A copy of a cinematograph film is taken to have been made ‘if it is converted into or from a digital or other electronic machine-readable form, and any article embodying the recording or film in such a form is taken to be a copy of the recording or film.’18 However, the law makes an exception from infringement of the reproduction right where a temporary copy of an ‘audio-visual item’ (including a broadcast or cinematograph film) is made as part of making or receiving the communication.19 This ensures that copyright owners do not unduly interfere in caching, browsing or viewing copyrighted material online (such as watching an authorised live stream of a sports broadcast) or when incidental copies are made in the receiving process.
The Copyright Act contains fair dealing exceptions which provide that the use of an audio-visual item does not infringe copyright if it falls within one of the purposes prescribed as ‘fair’ (eg, for the purpose of reporting the news). However, none of these exceptions could be readily relied upon by a person involved in illegal live streaming of a televised sports broadcast to defend a copyright infringement claim.
Who is liable for copyright infringement in the process of illegally live streaming a televised sports broadcast and how can they be prosecuted?
There are two categories of infringement in the process of illegally live streaming a televised sports broadcast: primary infringement and authorisation. These are summarised in the table below although the analysis is not always straightforward and even in cases where there is likely to be a good claim against an infringer, practical issues may make its pursuit impossible or impracticable.
| Infringement category: Summary | Prospects of copyright infringement claim |
| Primary infringement | |
|
|
| Authorisation | |
|
|
Given the prosecutorial challenges outlined above, the modern approach of copyright owners has been to pursue ISPs for authorising the copyright infringement of their customers. This has led to mixed results in Australia. The two leading cases, Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 and Dallas Buyers Club LLC v iiNet Ltd (2015) 245 FCR 129, suggest that an authorisation claim against an ISP will be a difficult route for copyright owners in the absence of cogent evidence of the customer’s infringement. In most cases, this will be too costly and time consuming for the owner to pursue without any certainty of outcome. This has led copyright owners to focus efforts more on obtaining injunctive relief requiring ISPs to block access to an overseas website or network that has the primary purpose of infringing, or facilitating the infringement of, copyright.29
Technological tools to combat illegal live streaming of televised sports broadcasts
The value in televised sports broadcast rights is largely derived from the attractiveness of the unpredictable live element. Take that concept together with a legal landscape which is too slow to protect these rights in real-time when they are most valuable and involved prosecutorial challenges, and it is unsurprising that rights holders have shifted their attention to technological tools to combat illegal live streaming.
There are several counter-technologies available to copyright owners; the tools with the greatest impact are:
(a) Website blocking – a generic term used to describe domain name system blocking or IP address blocking. Domain name system is the process where an ISP blocks access to a domain name by configuring its server operating the domain name to return no IP address (ie, displays an error message to users) or direct users to a pre-determined IP address that is different to that designated to the domain name. IP address blocking prevents the connection between users’ computers and the IP address of the host server or website which they are seeking to access. Website blocking can be achieved by collaboration with a willing ISP or by obtaining a website blocking injunction which requires an ISP to take reasonable steps to block access to infringing websites or servers operated by their customers.30
Examples
The Federal Court has granted four website blocking injunctions since the relevant enabling provision was added to the Copyright Act in 2015 with each case involving ‘peer-to-peer streaming’ networks or websites facilitating the illegal distribution of feature films, television programs or music.31 The injunctions were obtained by copyright owners Roadshow Films, Universal Music Australia and Foxtel (and have been extended several times to capture additional infringing websites).The UK High Court has gone a step further and made ‘live website blocking orders’ requiring ISPs to block access to the IP addresses of several hosting servers which the Football Association had proven were illegally live streaming televised matches of the Premier League.32 This is a ground-breaking development because the orders effectively prevented access to unauthorised live streaming content during the period that the footage was being broadcast and endorses the technological advancements that permitted the rights holder to accurately notify ISPs of infringing hosting servers in close to real-time. Similar orders have been made by courts in Ireland, Spain and Denmark in respect of the UEFA Champions League, EURO tournaments and LaLiga. It remains to be seen whether copyright owners of televised live sports broadcasts in Australia will pursue live website blocking orders.
(b) Digital video fingerprinting – a separate tool where special algorithms are used to extract and compress characteristic components of a large video file (eg, frame snippets, motion and music changes, camera cuts, brightness level etc.) into a much shorter file or ‘fingerprint’ which uniquely identifies the original data. The owner of the video fingerprint may then use it to exercise control over their copyrighted content by identifying, tracking and monitoring any matching video content across online distribution channels. Recent advancements in software have enabled a live fingerprinting process making it a useful tool for rights holders to identify matching video content on unauthorised live streaming websites.
Examples
Digital video fingerprinting is used as part of a rights management tools built into the Facebook or YouTube platforms and requires the rights holder to ingest copyrighted material into the tool and then utilise the dispute resolution mechanism incorporated by the platform operator to protect their rights against user infringements. Recent advancements in software have enabled a live fingerprinting process making it a useful tool for rights holders to identify matching video content on unauthorised live streaming websites; this was integral to the live website blocking orders referred to above where the Football Association relied upon the software to identify the IP addresses at which the infringing streaming servers were located.
Conclusion
The Copyright Act would be improved by amendments to clarify the scope of the communication and reproduction rights and better reflect modern distribution technologies beyond traditional television broadcasting. However, legislative reform faces challenges because it ignores the inherent expense and litigation risk confronted by rights holders to enforce their copyrights in live sports broadcasts through the courts – whatever the applicable statutory regime – and fails to recognise that the most important characteristics of any viable commercial solution to the illegal live streaming problem are speed and automation.
These practical challenges have led rights holders to focus their effort and resources to improving counter-technologies such as website blocking and digital video fingerprinting given they have provided a genuine solution to protect the copyright in live sports broadcasts rights efficiently and in real-time. Rights holders in Australia can only hope that applications for a live website blocking order made in comparable factual circumstances to the recent English cases involving the Premier League are decided in a similarly pragmatic fashion. This is not an unrealistic thought considering copyright law and the technological maturity of ISPs are very similar in both jurisdictions and the court process for awarding of a website blocking injunction in Australia is a highly discretionary exercise.
Rights holders in Australia should also continue to investigate the commercial viability of providing access to their copyrighted live sports content in a more affordable, convenient and varied fashion than it is currently available to audiences. That approach is supported by reputable academic research33 and is certainly the trend overseas where rights holders have realised that mobile media content complements television programming (rather than fracturing or eroding audiences) and improves the overall viewing experience for the consumer. 34
1 For example, see the 2024 Sports Industry Outlook published by PwC
2 Copyright Act, section 31.
3 Copyright Act, sections 809, 90 and 91.
4 Victoria Park Racing & Re0creation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 496.
5 Australian Olympic Committee Inc v The Big Fights Inc [1999] FCA 1042 at [42]. The Copyright Act also protects performers’ rights in live performances of works in Australia from unauthorised recording or communication to the public: Copyright Act, section 248G(1). Although a sporting event is expressly excluded from the statutory definition of a ‘performance’: Copyright Act, section 248A(2).
6 Telmak Teleproducts Australia Pty Ltd v Bond International Pty Ltd [1986] FCA 51 at [7]. But see Copyright Act, section 10 (definition of ‘cinematograph film’) which states that embodiment is a necessary ingredient for copyright to subsist in a cinematograph film of a televised broadcast.
7 Copyright Act, sections 10 (definition of ‘television broadcast’) and 91. Broadcasting licences in Australia are granted pursuant to the Broadcasting Services Act 1992 (Cth).
8 Copyright Act sections 10 (definition of ‘cinematograph film’) and 90. A ‘copy’ of a cinematograph film ‘means any article or thing in which the visual images or sounds comprising the film are embodied’: Copyright Act, section 10 (definition of ‘copy’).
9 Copyright Act, sections 10 (definition of ‘television broadcast’).
10 Copyright Act, section 22. However, professional sports organisations invariably draft their broadcast contracts to ensure that they (and not the broadcasters) own the copyright in the communications of the sporting events.
11 Copyright Act, section 87(c).
12 Copyright Act, sections 86 and 87(a).
13 Copyright Act, section 101(1).
14 Copyright Act, sections 87(a), (c) and 101(1).
15 Copyright Act, section 14(1). The “substantial part” test is only relevant to the question of infringement of the reproduction right. Whereas infringement of the communication right turns upon whether the copyrighted material is made available online or transmitted electronically: Dallas Buyers Club LLC v iiNet Ltd (2015) 245 FCR 129, [29]–[30]; Copyright Act, sections 10 (definition of “communicate”) and 86.
16 IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458
17 Australian Video Retailers Assn v Warner Home Video Pty Ltd (2001) 114 FCR 324
18 Copyright Act, section 21(6).
19 Copyright Act, sections 100A and 111A(1). However, the exception will not apply if the audio-visual item itself infringes copyright (either by unauthorised copying or further communication).
20 Dallas Buyers Club LLC v iiNet Ltd (2015) 245 FCR 129 at [30]
21 Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at [74]–[75].
22 Copyright Act, section 101(1); see National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147 at [63].
23 University of New South Wales v Moorhouse (1975) 133 CLR 1 at 12; Copyright Act, section 101(1A).
24 Copyright Act, section 101(1A).
25 Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380, [52] at [153].
26 Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 222 FCR 465 at [420].
27 Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380 at [65] and [158] and Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 222 FCR 465 at [472]–[473].
28 Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 at [78]
29 Copyright Act, section 115A.
30 Copyright Act, section 115A.
31 Roadshow Films Pty Ltd v Telstra Corp Ltd (2016) 248 FCR 178; Universal Music Australia Pty Ltd v TPG Internet Pty Ltd (2017) 348 ALR 493; Roadshow Films Pty Ltd v Telstra Corp Ltd [2017] FCA 965 and Foxtel Management Pty Ltd v TPG Internet Pty Ltd (2017) 349 ALR 154.
32 Football Association Premier League Ltd v British Telecommunications plc [2017] EWHC 480 (Ch).
33 For example, see Paula Dootson and Nicolas Suzor, “The Game of Clones and the Australia Tax: Divergent Views about Copyright Business Models and the Willingness of Australian Consumers to Infringe” (2015) 38(1) University of New South Wales Law Journal 206 and Productivity Commission, Intellectual Property Arrangements, Final Report (23 September 2016).
34 However, realisation that mobile media content improves the viewing experience for the consumer should not be mistaken for acceptance that it is additive in value for rights holders. Quite the opposite. Fragmented audiences are more difficult for rights holders to monetise while a general increase in entertainment distribution channels is value destructive for sports broadcast rights.