This article is written by Arkadyuti Sarkar, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

Recently, the popular social media platform Instagram has updated its copyright guidelines on the use of music in videos which includes live streaming. The company has clarified its restrictions to make it easier for the users to appreciate the limit of acceptance and the risk associated with their videos on the platform. Moreover, the company has introduced a new notification alert that intimates the users about copyright infringement when they are doing it or close to crossing the line.

Before proceeding further on this topic we need some knowledge on the copyright guidelines of the platform and what amounts to copyright infringement. Only then we will be able to understand and find ways for avoiding infringement during the live streaming.

Copyright infringement

Copyright infringement refers to the use of someone else’s copyrighted work in exception to the consent or authorization of the creator/owner of such work. Therefore, it is the use of someone else’s copyrighted work without his/her permission thereby causing the infringement to certain rights of such person, like the right to copy, reproduce, adapt, distribute, translate, display or perform such work.

Instances of copyright infringement

1. Anyone using someone else’s song as the background music in his/her music video or live streaming can be held liable for causing copyright infringement.
2. Anyone downloading films or music from an unauthorized source then it shall amount to copyright infringement.
3. Anyone is free to record a Television program or Web-series and view it afterward, i.e. private use, but if he transfers or distributes it to someone else then it amounts to copyright infringement.
4. Anyone importing infringing copies of any copyrighted work.

Elements of copyright infringement

1. The concerned work was an original creation of the author of such work.
2. The defendant actually copied such work or used it without the permission of the owner/author. It is noteworthy that not all copying in fact cannot resort to legal action. There should exist substantial similarity between the works by the author and the defendant has to be established for proving that he has caused infringement to the author’s copyright.

Ways to make sure that the contents in the video/ live stream of Instagram are non-violative of the copyright provisions

As per Instagram’s Terms of Use and Community Guidelines, a user is capable of only posting content on Instagram that is non-violative of the copyright or other intellectual property rights belonging to others. Perhaps the best mode for ensuring this is by only posting content that is the uploader’s own creation.

Yet there remains a possibility of infringing the copyright belonging to someone else while posting video/ performing a live stream on Instagram, even if:

• The uploader/ streamer has purchased or downloaded such content (ex: a song from Spotify/Soundcloud).
• The uploader/streamer has recorded such content onto their own device (examples: background music playing at a party/concert/sporting event/wedding, etc.).
• The uploader/ live streamer has provided accreditation to the copyright owner.
• The uploader/ live streamer has included a disclaimer citing that no copyright infringement was intended.
• The uploader/ live streamer is unintentional obtaining profit from such video/streaming.
• The uploader has altered or modified the video/ live streaming background or added his/her original element to such a video/ live stream.
• The music in the video/ background of the live stream has been obtained from the internet.
• The uploader/ streamer saw others uploading the same video or performing the stream in a similar manner
• The uploader/ live streamer thought the action is protected under fair use.

Therefore, before posting a video or streaming live on Instagram, one needs to ascertain:

• If he/she is the creator of such music in the background?
• Does he/she is allowed to use the entire music included in the video or live stream?
• Whether the use of the music comes within the ambit of exception to Copyright infringement?
• Whether such background music has copyright protection?

Generally, it is a good idea to obtain written permission from the author of such music prior to including the same on any video or live stream on Instagram. The uploader might have the ability to use someone else’s music on the platform if he has obtained permission prior to the inclusion, for eg: by acquiring a license. The user may also be able to use someone else’s music if the same is in the public domain, and comes under fair use, or is excepted from copyright.

Fair use and copyright exception

As already mentioned above, it is better to use materials coming under Fair Use or Copyright Exceptions while including them in videos or live streams on Instagram and for that, it is imperative to gain some knowledge on Fair Use and Copyright Exceptions.

Laws around the world recognize that strict application of copyright laws in certain instances may be unfair or may inappropriately suffocate creativity or obstruct people from composing original works, resulting in harming the public. These laws enable people to use, under particular situations, someone else’s work protected under copyright. Well-known illustrations include uses for criticism purposes, remark, satire, parody, news reporting, education, teaching, and research works.

The United States of America and some other nations follow the “doctrine of fair use”, while other nations, including those part of the European Union, provide other copyright exceptions or limitations. These exceptions or limitations authorize the users in using the copyrighted content wherever appropriate.

Though it is usually difficult to identify if a particular use of a copyrighted work comes under fair use, the law offers some considering factors for that purpose:

1. The intent and character of such use, including whether such use is \commercial purposes or is for nonprofit/ educational purposes.
2. The nature of the copyrighted content. For example, using factual works like maps or databases is more likely to be deemed as fair use compared to the use of highly creative works like poems or science-fiction movies.
3. The quantity and substance of the portion used in relation to such copyrighted content if considered as a whole.
4. The consequence of the use upon the potential market for or value of the copyrighted material.

Exceptions to Copyright

Applying exceptions and limitations to copyright may differ from nation to nation. Usually, in nations that are reliant upon exceptions and limitations, using copyrighted materials should not unreasonably harm the interests of the rights’ owner. In the European Union, each Member State has to ensure that users are able to depend on the following exceptions when making any content available through quotation, criticism, review, caricature, parody, or pastiche.

Instagram’s Guidelines Regarding Adding Music in Videos/ Live Streaming

Instagram has partnerships with the rights holders that have brought people together around music on the platform. As part of IG authority’s licensing agreements, there are limitations around the quantity of recorded music that is includable in live broadcasts/videos. While the specifics of such licensing agreements have confidentiality, here are some general guidelines for helping the user in planning the videos/live streamings in a better way:

• Adding Music in the stories and traditional live music performances, i.e. filming an artist or live performances of a band are allowed.
• The higher the number of full-length recorded tracks present in a video, the more are the chances of limitation. Therefore, shorter musical clips are recommended for addition.
• There must always exist a visual component in the video/ live stream; i.e. the primary purpose of the video should not be recorded audio.

These guidelines have consistency across all the live and recorded videos on both platforms, i.e. Facebook and Instagram, and all types of accounts – i.e. pages, profiles, verified/unverified accounts. Moreover, although music is launched on platforms in 90+ countries, there are regions where it is presently unavailable. So if the video includes recorded music, then it may be unavailable for use in such locations.

Users also have access to a custom music library and sound effects free of cost using Facebook’s Sound Collection. The list of the Sound Collection includes 1000s of tracks available for being used in the videos/ live shared on Facebook and Instagram in an unlimited manner. The genres include but not limited to hip-hop, pop, jazz, country, and more.

In-Product Video Notifications

It can be frustrating for a user to experience an interruption during the streaming or to have parts of the video/stream muted due to the presence of music. Thus, for minimizing these interruptions and preventing confusion around the use of audio, Instagram is working to improve its in-product notifications. These notifications are intended towards alerting the user in the event the systems detect any broadcast or uploaded video may contain music in a manner that is violative of the licensing agreements entered by Instagram with the right holders.

These updates cover making notifications clearer and surfacing prior notifications to the live broadcasters, so as to provide them with time for adjusting their streamings and avoid interruptions if they are deemed to be approaching the limitations of Instagram’s licensing agreements. Also if the video is muted/blocked, the IG authority shall clarify what actions the user can take to stop such interruption.

Conclusion

Therefore in the end we can see that the new Instagram guidelines and in-product video notifications, pertaining to infringement alerts on Instagram are really helpful for the uploaders or live streamers in assessing infringement issues and curing them. Moreover, following Instagram’s copyright guidelines the users can refrain from adding any copyrighted content in the video or streaming. Also including contents coming under fair use or copyright exception can also prove helpful during uploading videos or performing live streamings.

References

1. https://www.theverge.com/2020/5/20/21265620/instagram-music-copyright-notification-licensed-update-guidelines
2. https://blog.ipleaders.in/copyright-infringement/#Copyright_Infringement
3. https://about.instagram.com/blog/announcements/updates-and-guidelines-for-including-music-in-video
4. https://www.facebook.com/help/instagram/126382350847838
5. https://blog.ipleaders.in/everything-you-should-know-about-copyright-issues-while-posting-pictures-on-instagram/