Wimbledon is just around the corner and as we are increasingly seeing at modern sporting events, the All England Lawn Tennis Club (AELTC) has implemented a new ‘digital strategy’ for this year’s tournament. It has asked spectators to refrain from using Periscope – despite the club using the live streaming app itself to capture ‘unique moments' – due to concerns over broadcasting rights.
Live streaming technologies such as Periscope and Meerkat have brought the potential for users to live stream video content from their mobiles over social media, while allowing other users to comment in real time. These apps have opened up a whole new area of content use, described in the words of Meerkat's founder Ben Rubin as technology that permits "spontaneous togetherness".
Meerkat for example saw enormous initial success, garnering some 100,000 users and $14m in funding in its first month. Since then, Periscope's growth has apparently been even stronger, and its acquisition is rumoured to have cost Twitter $100m. These are heavy bets that live mobile video will play an important part in our future. But what legal issues do these new technologies and their users face and what risks or opportunities are there for content owners and marketers?
The apps are already in wide commercial use, with examples such as Smart and Nissan, who used them to showcase new car launches at the New York Auto Show, and radio disc jockeys using it during radio broadcast shows. Some of the earliest adopters of the technologies have been marketers. However, while the broadcasting of live content is a powerful new tool, without the ability to edit and clear content before it is shown, consumers and brands alike need to beware broadcasting content which infringes other parties' IP rights or breaks laws.
Several of the early problems have arisen around sports events. Footage of the Mayweather v Pacquiao fight was streamed by many users on Periscope, prompting Dick Costolo to tweet "the winner is…@periscopeco", and HBO (which had the broadcast rights to the fight) to send takedown notices to Twitter. The National Hockey League has banned use of either app by attendees at NHL games. In the UK the Premier League has expressed concern over the use of the Vine app by supporters at football matches.
The difficulty sports events have is that each individual match is not protected by copyright, and so copyright cannot be used to stop attendees at matches from filming them. As a result, events-owners have to rely on the contract they have with ticket holders, and include in it a ban on streaming or filming from inside the ground. This sort of restriction is perfectly legal though enforcement is harder.
In the case of Wimbledon 2015, the AELTC has insisted that the guidance concerning live streaming apps is simply an extension of the usual rule that mobile phones must be switched off "in and around the courts in play". So, for those hoping to share a shot of Andy Murray taking straight sets, it remains to be seen how Wimbledon will enforce attendees to play by the rules.
There is also a broader issue about the regulation of broadcast-like material. Current laws around what amounts to a broadcast were not written with streaming apps in mind.
Professional broadcasters are highly regulated, require government licences for their activities and have to comply with strict rules on issues such as advertising and programme sponsorship. They will typically be obliged by their licence conditions to use failsafe mechanisms when live broadcasting, such as a short delay between the words spoken by the on-screen talent and their broadcast to the public, during which time the producers can block or mask content which may be problematic, such as swearing. The live streaming environment does not have any such 'red button' and it is much harder for the crowd-sourced approach to content policing (such as the reporting of problematic posts to the platforms) to apply when the content is live.
The easier new technology makes it for anyone to 'broadcast' video content, the more the lines currently drawn by the laws between regulated and non-regulated activities begin to look artificial. The recent announcement that the UK's broadcast regulator Ofcom intends to review UK broadcast regulation in light of technological changes is timely. .
Whatever happens by way of regulation, the use of live video streaming apps will by then inevitably have become an important part of the digital media and content delivery ecosystem. Content owners, platforms and marketers should already be considering how the issues and opportunities created by these technologies affect their policies and practices.
Mark Owen is a partner in the Trademark, Copyright and Media group at law firm Taylor Wessing