STREAMING INTO INFRINGEMENT
Kok Eu Jin explains how illegal streaming infringes the rights of copyright owners.
8 September 2020
The rise of streaming platforms has changed the way people consume entertainment. The growing popularity of the streaming economy has seen the emergence of entertainment goliaths such as Netflix, Amazon Prime Video and soon, Disney+. This should not come as a surprise given how such platforms allow users to consume content on-demand.
The dawn of streaming platforms has also seen the proliferation of online piracy and accordingly, copyright infringements. Users who are unwilling to pay the subscription fees for streaming their favourite TV series or movies have resorted to illegal streaming websites or set-top boxes. Before delving into the legality of such sites or boxes, it would be useful to understand how streaming works.
How does streaming work?
To stream a particular content, it must first be made available on an online streaming platform. This involves uploading a copy of the content onto the said platform. Once it has been uploaded, the user will stream the content on an internet-connected device. During this process, the user is not downloading the content instantaneously but rather, piece by piece in real time. To facilitate a continuous and uninterrupted flow of streaming, buffering occurs, whereby data is downloaded and stored temporarily in the device for the play-back processing of the media. This data is neither retained nor recoverable after the play-back process has been completed.
How is copyright infringed?
Under the Malaysian Copyright Act 1987 (“Act”), copyright is infringed by doing an act which is controlled by copyright without the copyright owner’s authorisation. In this regard, the Act confers exclusive rights to copyright owners to control amongst others, the communication of their copyrighted content to the public and the reproduction of the said content in any material form.
In view of the processes involved for illegal streaming, copyright may be infringed on two levels.
- The uploading of the unauthorised content is blatant infringement of the owner’s right to control the communication of the copyrighted content to the public.
- Users who stream the said content may be liable for infringement by virtue of their unauthorised reproduction of the content during the buffering process.
As regards the latter, the issue revolves around whether the data downloaded during buffering would fall within the definition of “reproduction” under the Act given that the data is only temporarily stored and not retained in the device. In this regard, the Act has defined “reproduction” to mean the making of one or more copies of work in any form or versions.
Is temporary reproduction illegal?
Given the dearth of Malaysian cases, reference is made to English cases for guidance on this issue. In this regard, the English courts have held that infringement occurs the instant an unauthorised copy is made in the computer’s random access memory regardless of whether the infringing copy was retained, or the short and temporary nature of its existence. While we should approach such cases with caution given that the provisions in the Act and UK’s copyright laws are not identical, it is arguable that data temporarily stored during buffering could be considered as a form of “reproduction” despite its transient nature. In short, the moment an unauthorised copy of the content is made in a device, it may be viewed as an infringing article.
In light of the above, users of illegal streaming websites or set-top boxes should be mindful that the Act imposes severe penalties if they are found to have infringed the content owner’s copyright. Upon conviction, the offender may be liable to a fine of RM2,000 to RM20,000 (approx. USD500 to USD5,000) per infringing copy, and/or 5 years imprisonment. Further, illegal streaming may also expose the perpetrator to malware attacks on their devices. Apart from such risks users are exposed to, illegal streaming would also inevitably hurt the entertainment industry by depriving those involved in the production process of their rightful income. As such, due to the wide availability of legal streaming platforms and their reasonable subscription fees, there is really no valid reason as to why anyone should support piracy.