Main Event streaming may see encore in courts

6 February 2017
Antoine Pace, Partner, Melbourne

Pay TV operator Foxtel has vowed to take legal action against customers who streamed its pay-per-view content on Facebook without its permission.

Foxtel has alleged that two of its customers posted live streams of the pay TV operator’s 3 February broadcast of the Danny Green and Anthony Mundine boxing match through Facebook accounts. Viewers could pay a fee to watch the fight legitimately through the Main Event pay-per-view entertainment platform.

The alleged streaming, which reportedly occurred prior to and during the headline event, drew the attention of over one hundred thousand people who were subsequently able to watch the fight for free, without Foxtel’s permission. Foxtel claims it contacted its customers during the broadcast and asked them to stop the streaming. The pay TV provider has indicated it plans to take legal action over the breach of its rights.

Streaming unauthorised content over a social media platform is a breach of the Copyright Act 1968 (Act). Under the Act, the maker of the television or sound broadcast is the owner of the copyright.

Section 87 of the Act provides the copyright owner with the exclusive right to re-broadcast televised content or communicate it to the public apart from broadcasting it, such as streaming over the internet. It follows that copyright is infringed if a person, who is not the copyright owner, broadcasts or communicates the copyright material, without a license from the copyright owner.

If a copyright owner believes an infringement has occurred, it may bring an action in the Federal Court for copyright infringement against the infringing party.

In an action for an infringement of copyright, the plaintiff may seek an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits. In the present matter, the rights owners may for example, seek damages for the loss of subscription revenue as a consequence of the unauthorised streaming. The court may also award such additional damages as it considers appropriate in the circumstances.

In considering additional damages, the Court will take into consideration:

  • the flagrancy of the infringement;
  • the need to deter similar infringements of copyright;
  • the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff’s copyright;
  • whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form;
  • any benefit shown to have accrued to the defendant by reason of the infringement; and
  • all other relevant matters.

The present matter draws attention to the numerous issues facing rights holders in protecting their rights online, in the face of unauthorised streaming and dissemination of copyright material over the internet. It should also put potential infringers on notice of the extent to which copyright owners are prepared use all available avenues to protect their rights.

Watch this space for updates.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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