Innovation and protection in the streaming age
The rise of YouTube, Spotify and Netflix created new issues around copyright and IP law for content creators and consumers alike. Three leading experts talk to NZ Lawyer’s Jacqueline So
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WHEN YOUTUBE was launched in 2005, it was an innovation that wound up changing the media forever. Not only did it transform the way people consumed media, but media creation also became something that wasn’t just the avenue of those with professional resources and contacts – anyone could create and share content.
This transformation of media consumption and creation habits continued when Spotify burst onto the scene in the 2010s, providing yet another avenue for the easy production and distribution of music. Around the same time, Netflix exploded worldwide as a streaming service that offered affordable access to an ever-widening variety of bingeable shows and movies.
Today, YouTube, Spotify and Netflix are so ingrained into human society that they have become synonymous with the media they offer. However, the rise of the streaming age has been accompanied by the birth of new legal issues – and the legal profession is still struggling to catch up.
In 2014, Taylor Swift made headlines when she announced the removal of her music from Spotify, citing how the platform failed to fairly compensate artists. Concerns like Swift’s highlight how, despite bolstering access to media, the “new paradigm” is imperfect, James & Wells partner Jason Wach points out.
Zone Law’s Christopher Sheehan and Jeremy Hunter point out that enforcement of IP rights has become more complicated over time.
“A tension has been created between IP protection and social media. Whilst the law itself enables users to object to online intellectual property breaches, copyright owners believe that media platforms are failing to protect and enforce these rights,” they say.
While media platforms are authorised to control IP infringement, high volumes of such violations have hampered their ability to do so, which “can damage the sanctity of intellectual property rights”. Thus, platforms like YouTube have transitioned to automating the process of flagging copyright breaches – a move that has put content creators in a tight spot.
“The identification of employees posting disparaging remarks on a California-headquartered site about their employer was sought by a New Zealand company in California. The US district court ordered that the identity of the employees be revealed. Whilst this decision has raised questions about the employee’s privacy rights, among other things, it also suggests that NZ business, the law and remedies in the digital sphere are beginning to adapt to the current climate,” Sheehan and Hunter say.
Wach explains that ultimately, different instances of digital IP infringement necessitate different responses. In “relatively minor” cases, the matter can be brought to the platform itself for a quick and efficient outcome. However, in more serious cases, parties can issue a claim under IP legislation and take a matter to court.
“Courts in New Zealand – and many other countries – will readily tailor their orders to suit new media platforms, such as by issuing an injunction requiring an infringer to remove infringing content from the relevant platform. There is now a good body of legal precedent for this kind of action,” he says.
of claims made via automatic detection
YouTube copyright claims, first half of 2022
“Some content creators believe that these platforms are too stringent with copyright. Automatic removal systems often pre-emptively remove content; content creators are forced to appeal the removal after it’s been taken down, rather than a platform observing an objection and determining whether it’s a breach,” Sheehan and Hunter explain.
They point to the example of US Digital Millennium Copyright Act notices that can be used to request content take-downs on online platforms, many of which will act immediately. While content creators can appeal the action, “whether there was in fact copyright infringement is not always clear”.
Infringement can sometimes result in fines and (in other countries) jail terms as a criminal offence; however, Sheehan and Hunter explain that “practically speaking, there are few cases in the New Zealand context where an effective remedy is economic”. They highlight the 2022 case of Zuru, Inc. v. Glassdoor, Inc., which they say represents “a recent example of the changing face of legal action in the digital world in New Zealand”.
Zone Law provides a full range of intellectual property and business law services, along with specialist litigation services. Its directors and staff bring a wide range of experience to IP and business law. The firm prides itself on applying innovative thinking to IP protection and problems.
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Since 1979, James & Wells has been at the forefront of innovation in Australasia. We are here to help you grow, leverage and protect your IP. Our depth of experience ranges from managing large IP portfolios for large international corporations, right through to protecting the ideas of start-ups and everything in between. We are dedicated to championing our clients and providing them with the highest levels of service. As a fully independent firm, we have the flexibility to adapt our services to integrate with what you need, both now and into the future.
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Nonetheless, he advises that “the best approach in any case depends on the scale, seriousness, and jurisdiction of the matter”.
“The bottom line is, if you created content you will usually own copyright in it – for a finite duration. Don’t hesitate to contact an expert to discuss your options if someone is using your content without your authorisation. Act as quickly as possible; it’s always easier to stop an infringement in its tracks before an infringer has invested time, energy and money into it,” Wach says.
“A tension has been created between IP protection and social media. Whilst the law itself enables users to object to online intellectual property breaches, copyright owners believe that media platforms are failing to protect and enforce these rights”
Jeremy Hunter, Zone Law
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When streaming platforms handed the everyman the keys to the kingdom of content creation, this freedom was accompanied by a surge in novel trade mark and copyright issues.
“The most common enquiries we receive regarding streaming platforms are from rightsholders whose trade marks or copyright are being misused online, often on Facebook or YouTube, or from content creators wanting to use an existing work and wanting to know the boundaries,” Wach says.
“If you created content, you will usually own copyright in it.
If someone is using your content without authorisation, act quickly. It’s easier to stop an infringement in its tracks in the early stages”
Jason Wach, James & Wells
Industry experts
Christopher Sheehan
Zone Law
Jeremy Hunter
Zone Law
Jason Wach
James & Wells
Industry experts
Jason Wach is a partner at James & Wells and an experienced intellectual property lawyer. He has an extensive background in acting for local and international businesses and assisting them with the enforcement of intellectual property rights. He has appeared as counsel and assisted senior counsel in all levels of courts and tribunals in New Zealand, including the Supreme Court, the Court of Appeal, the High Court, IPONZ tribunals and the Copyright Tribunal.
His areas of practice include patent infringement and opposition, trade mark infringement and opposition, copyright infringement, copyright licensing, counterfeiting, trade secrets and restraints of trade, misleading and deceptive conduct, domain name disputes, mediation, and general commercial disputes.
Wach also advises on legislative compliance and general commercial matters, including branding, intellectual property licensing, and manufacturing, supply and distribution agreements. He has extensive experience in securing the registration of trade marks both within New Zealand and in numerous international jurisdictions.
James & Wells
Jason Wach
Jeremy Hunter is a principal at Zone Law. He is a lawyer and patent attorney who has run his own successful commercial practice for 12 years. He started his career in intellectual property law firms, where he gained experience in trademark, licensing and franchise law. He then pursued his interest in commercial and property law, advising a broad range of organisations on governance and constitutional arrangements, and has acted in connection with the establishment and sale of successful businesses.
Since then, Hunter has expanded his interest in business,
e-commerce, and contract and commercial law. He advises high-net-worth individuals as well as businesses and charitable organisations in connection with not only intellectual property and commercial matters but also constitutional, trust and other structural arrangements, together with compliance and governance obligations.
Zone Law
Jeremy Hunter
Christopher Sheehan joined Zone Law in 2015. After completing his LLB with honours at Victoria University Wellington in 2011, Sheehan worked at the Intellectual Property Office of New Zealand as a trade mark examiner. He excelled in his role and in 2014 received the highest mark in the national trade marks exam.
Sheehan is a senior lawyer on the IP team and works on a wide range of IP matters, including infringement issues, global and local trade mark portfolio management, copyright, passing off, and the Fair Trading Act. He also assists with managing the day-to-day running of the trade mark team, as well as with trade mark availability, filing and prosecuting of trade mark applications, trade mark disputes, and drafting of intellectual property agreements.
Sheehan is passionate about helping clients achieve the best commercial outcomes relating to their IP.
Zone Law
Christopher Sheehan
Christopher Sheehan
Zone Law
Jeremy Hunter
Zone Law
Jason Wach
James & Wells
Industry experts
Jason Wach is a partner at James & Wells and an experienced intellectual property lawyer. He has an extensive background in acting for local and international businesses and assisting them with the enforcement of intellectual property rights. He has appeared as counsel and assisted senior counsel in all levels of courts and tribunals in New Zealand, including the Supreme Court, the Court of Appeal, the High Court, IPONZ tribunals and the Copyright Tribunal.
His areas of practice include patent infringement and opposition, trade mark infringement and opposition, copyright infringement, copyright licensing, counterfeiting, trade secrets and restraints of trade, misleading and deceptive conduct, domain name disputes, mediation, and general commercial disputes.
Wach also advises on legislative compliance and general commercial matters, including branding, intellectual property licensing, and manufacturing, supply and distribution agreements. He has extensive experience in securing the registration of trade marks both within New Zealand and in numerous international jurisdictions.
James & Wells
Jason Wach
Jeremy Hunter is a principal at Zone Law. He is a lawyer and patent attorney who has run his own successful commercial practice for 12 years. He started his career in intellectual property law firms, where he gained experience in trademark, licensing and franchise law. He then pursued his interest in commercial and property law, advising a broad range of organisations on governance and constitutional arrangements, and has acted in connection with the establishment and sale of successful businesses.
Since then, Hunter has expanded his interest in business, e-commerce, and contract and commercial law. He advises high-net-worth individuals as well as businesses and charitable organisations in connection with not only intellectual property and commercial matters but also constitutional, trust and other structural arrangements, together with compliance and governance obligations.
Zone Law
Jeremy Hunter
Christopher Sheehan joined Zone Law in 2015. After completing his LLB with honours at Victoria University Wellington in 2011, Sheehan worked at the Intellectual Property Office of New Zealand as a trade mark examiner. He excelled in his role and in 2014 received the highest mark in the national trade marks exam.
Sheehan is a senior lawyer on the IP team and works on a wide range of IP matters, including infringement issues, global and local trade mark portfolio management, copyright, passing off, and the Fair Trading Act. He also assists with managing the day-to-day running of the trade mark team, as well as with trade mark availability, filing and prosecuting of trade mark applications, trade mark disputes, and drafting of intellectual property agreements.
Sheehan is passionate about helping clients achieve the best commercial outcomes relating to their IP.
Zone Law
Christopher Sheehan
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Rise of novel infringement issues
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Jason Wach
James & Wells
Jeremy Hunter
Zone Law
Christopher Sheehan
Zone Law
Christopher Sheehan joined Zone Law in 2015. After completing his LLB with honours at Victoria University Wellington in 2011, Sheehan worked at the Intellectual Property Office of New Zealand as a trade mark examiner. He excelled in his role and in 2014 received the highest mark in the national trade marks exam.
Sheehan is a senior lawyer on the IP team and works on a wide range of IP matters, including infringement issues, global and local trade mark portfolio management, copyright, passing off, and the Fair Trading Act. He also assists with managing the day-to-day running of the trade mark team, as well as with trade mark availability, filing and prosecuting of trade mark applications, trade mark disputes, and drafting of intellectual property agreements.
Sheehan is passionate about helping clients achieve the best commercial outcomes relating to their IP.
Zone Law
Christopher Sheehan
Jeremy Hunter is a principal at Zone Law. He is a lawyer and patent attorney who has run his own successful commercial practice for 12 years. He started his career in intellectual property law firms, where he gained experience in trademark, licensing and franchise law. He then pursued his interest in commercial and property law, advising a broad range of organisations on governance and constitutional arrangements, and has acted in connection with the establishment and sale of successful businesses.
Since then, Hunter has expanded his interest in business, e-commerce, and contract and commercial law. He advises high-net-worth individuals as well as businesses and charitable organisations in connection with not only intellectual property and commercial matters but also constitutional, trust and other structural arrangements, together with compliance and governance obligations.
Zone Law
Jeremy Hunter
Jason Wach is a partner at James & Wells and an experienced intellectual property lawyer. He has an extensive background in acting for local and international businesses and assisting them with the enforcement of intellectual property rights. He has appeared as counsel and assisted senior counsel in all levels of courts and tribunals in New Zealand, including the Supreme Court, the Court of Appeal, the High Court, IPONZ tribunals and the Copyright Tribunal.
His areas of practice include patent infringement and opposition, trade mark infringement and opposition, copyright infringement, copyright licensing, counterfeiting, trade secrets and restraints of trade, misleading and deceptive conduct, domain name disputes, mediation, and general commercial disputes.
Wach also advises on legislative compliance and general commercial matters, including branding, intellectual property licensing, and manufacturing, supply and distribution agreements. He has extensive experience in securing the registration of trade marks both within New Zealand and in numerous international jurisdictions.
James & Wells
Jason Wach
Evolution of the law in new media development
Rise of novel infringement issues
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99%
of auto-detected claims disputed
0.5%
undisputed auto-detected claims
755 million
Source: Statista, Status of automatically detected copyright claims to YouTube H1 2022 by L.Ceci (Jan 2023)
(as of Q4)
231 million
Source: Statista, Quarterly Netflix subscribers count worldwide
2013–2022 by Julia Stoll (Jan 2023) and Spotify's premium subscribers 2015–2022 by Marie Charlotte Götting (Nov 2022)
Number of Netflix and Spotify subscribers, 2022
(as of Q3)
195 million
Premium
There is more precedent than before when it comes to dealing with legal issues related to copyright and IP, but IP legislation has also lagged in its ability to really evolve to meet modern needs.
“As digital media has become more integrated into everyday life, intellectual property law has not always modernised to keep up with the changing environment. The biggest challenge is to ensure that intellectual property allows a balance between innovation and the protection of creative works, whilst also encouraging the production of new works. IP law, while relevant, can be a starting point rather than an entire solution,” Sheehan and Hunter say.
“The other side of the coin is – if you come across content online, there is a high likelihood that someone else owns copyright in it, even if the identity of the rightsholder isn’t clear from the content itself. Use of that content without authorisation could expose you to legal risk.”
They highlighted efforts that have been made to “use IP rights to address both legitimate product or service reviews and those that are not well founded”. They also pointed to the Ministry of Business, Innovation and Employment’s review of the Copyright Act 1994 as an attempt to update the legislation for the modern day.
However, Sheehan and Hunter noted that “not much progress has been made” since the review was conducted from 2018 to 2020.
“The failure by the law to keep up has seen a growth in extrajudicial solutions being sought, such as take-down requests on online platforms rather than through the courts,” they say.
“It will be interesting to see how areas like defamation, the Harmful Digital Communications Act process, privacy law developments – among other legal remedies outside traditional IP law – and the enforcement of IP rights will develop in the absence of a holistic approach to the digital world.” AI adds a further dimension when AI allegedly sources IP-protected material without attribution or compensation as part of its ‘learning’. How this will be addressed remains to be seen.
“Content creators believe that these [social media] platforms are too stringent with copyright … [they] are forced to appeal the removal after it’s been taken down, rather than a platform observing an objection and determining whether it’s a breach”
Christopher Sheehan, Zone Law
In addition, although streaming platforms have made media widely available for little to sometimes no cost, piracy remains present.
“It’s very positive that legitimately licensed streaming services are finally easily accessible and relatively affordable,” Wach says. “Consumers demand instant access to content, and these services provide that access. There is much less incentive to seek pirated media when it’s available through legitimate sources. This means that content creators are remunerated, to some extent, for their creativity”. However, “some consumers still prefer to pay nothing and obtain content illegally through torrents and similar technology”.
In response, the wider legal profession has taken significant steps towards restricting the perpetration of piracy.
“Court orders to shut down torrent sites, for example, are attainable now, provided suitable evidence can be collected,” Wach says. “Rightsholders, including collecting societies, remain vigilant in protecting creators’ rights in this area.”
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“A tension has been created between IP protection and social media. Whilst the law itself enables users to object to online intellectual property breaches, copyright owners believe that media platforms are failing to protect and enforce these rights”
Jeremy Hunter, Zone Law
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