You have most likely already consumed content online through streaming services. YouTube, Spotify and Netflix are examples of services that use this technique to distribute their content to users. But, after all, what exactly is this technology so present in our lives? This text seeks to make a brief exposition on the subject, as well as to critically analyze the legal nature of streaming in the Brazilian legal system.
The concept of streaming
In the context of the internet, streaming refers to the possibility of providing certain content (video, audio, games) to one or more devices connected to the network, without requiring a copy of that content on your machine to run it. Streaming, therefore, is a technology that allows that content, saved only to the device that transmits it – which can vary between a simple cell phone connected to the network to a large-scale server – is sent to the final recipients through the internet, which allows them to access content normally, as if it were stored on their own devices.
To use streaming, however, the user necessarily depends on the availability of a connection to the network. The speed of access required to perform the streaming depends on the type of service to be used and also on the size of the data packets that need to be sent – a video stream, for example, usually requires a much faster speed than an audio , and the video itself may require different speeds, depending on the quality of the transmission.
Nowadays, streaming technology online offers many practical applications. There are, for example, services that allow all their data to be hosted on a company server, not on the user’s computer or cell, leaving no need for the user to have the space on his machine for storing the content. This is the case of the previously mentioned services, such as YouTube, Spotify, Netflix, among others.
In addition, the improvement of the speed of internet access around the world in recent times has also made it possible to use streaming to outsource even the processing of a device itself. This is the case of cloud computing, with which it becomes possible to use an underpowered device to perform tasks that require a lot of processing power. Examples of services that use this practice can range from game streaming – such as PlayStation Now, Xbox Play Anywhere and NVIDIA GameStream – to the availability of supercomputers that allow to advanced academic research and simulations that demand unbelievable amounts of processing – all without that the researcher needs direct access to said supercomputer.
The legal nature of streaming according to case law
It is evident, then, that the streaming technology has enabled the creation of several tools extremely useful for our day to day lives – and the amount of possible uses grows each day as we move towards an increasingly connected world.
However, like almost all the innovations that permeate the internet, the emergence of such disruptive technology collided with the notions of Law we had before. As a result, we have a great difficulty in classifying the legal phenomena that occur through the internet employing only legal concepts conceived before the rise of this tool, and this doubt can cause repercussions in the way we treat the relationships that occur through the internet and the new technologies.
In the case of streaming, one of the main issues that permeates the practice revolves around the legal nature of this act of obtaining access to content stored in a device that does not belong to the user. How to classify the relation that the user has regarding the transmitted content?
At the beginning of the year, the Federal Supreme Court (STF) decided on the subject, through Extraordinary Appeal No. 1056363. This decision reiterates the previous understanding presented by the Superior Court of Justice (STJ) in the decisions of Special Resources No. 1,559,264 and No. 1,567,780, and, in short, determines that streaming of content should be classified as public use for purposes of collecting copyright by ECAD (Central Office of Collection and Distribution).
The understanding of the higher courts was based on article 68, paragraph 2, of Law 9.610/98, according to which “public use is considered the use of musical compositions, through the participation of artists, whether paid or not, or the use of phonograms and audiovisual works, in places of collective frequency, by any processes, including broadcasting or transmission by any means, and the cinematographic exhibition”.
In addition to that, it is important to take into account the classification of “places of collective frequency”, which, according to paragraph 3 of the same legal provision, can be understood as “theaters, cinemas, ballrooms or concerts, nightclubs, bars, clubs or associations of all kinds, shops, commercial and industrial establishments, stadiums, circuses, fairs, restaurants, hotels, motels, clinics, hospitals, public bodies of the direct or indirect administration, foundations and state-owned, means of passenger transport by land, sea, river or air, or wherever literary, artistic or scientific works are represented, performed or transmitted”.
The streaming, according to this line of reasoning, was classified as public use; and the internet, as a place of collective frequency in which this public use is carried out. That understanding, however, is extremely questionable, for the reasons given below.
Counterpoint to the understanding of the higher courts
Firstly, it is important to point out that there are two ways of performing online streaming: webcasting and simulcasting. Webcasting corresponds to the method that allows the autonomy of the users’ will over the content that they consume. This method allows you to choose the content you want from the library provided by the streaming service. Simulcasting, in turn, best resembles a radio or television service over the internet. There is a certain schedule offered by the transmitter, and the user does not have autonomy over it apart from choosing to consume that available content or not.
In the decision of the STF, this distinction is totally neglected, which results in an erroneous generalization of the streaming technology. A simulcasting transmission, for example, could be considered public use, as it would prevent active user interaction and simply consist of making the content available to the great mass of users that make up the internet, but it would be difficult to apply this reasoning to multicasting. Multicasting, in turn, is much more like a model of mere provisioning of content transmitted to users, who can choose exactly what they want to consume from the catalog, which would not characterize public use and therefore would not be charged by the ECAD.
The Court of Justice of Rio de Janeiro (TJ-RJ) decided in this same way in the decisions of the Civil Appeal nº 0386089-33.2009.8.19.0001 and of the Infringing Embargoes nº 0174958-45.2009.8.19.001. A systematic interpretation of the term “places of collective frequency” was adopted, and it was concluded that webcasting consists of an individual – not a collective – transmission of content to the user, since it involves the autonomy of the user’s will. These decisions, along with others that were also made before the new ones from the superior courts were emanated, formed the majority of case law on the subject in the country, and demonstrated a greater maturity of the law enforcers as to the legal nature of streaming.
Contrary to this understanding, it is a fact that Normative Instruction No. 1, dated May 4, 2016, of the Ministry of Culture determined that internet application providers also fall within the concept of “user” in art. 22 of Decree 8469/15, and are also responsible for the obligations related to copyright that compete for public use. However, this Normative Instruction also seems to treat application providers in a generic way, without distinguishing the webcasting services from those of simulcasting and, therefore, disregarding a definition that would be extremely important for the correct addressing of the theme on which it sought to legislate.
In addition to the case-law argument, it is clear that article 68, paragraph 3, of Law No. 9.610/98 is clear in pointing out, in its exemplary role of what would be “places of collective frequency”, only examples of physical places that imply people’s physical presence for a public use to be possible. The internet, therefore, would not be an easily presumed inclusion for this list of places of collective frequency, because the presence of users occur in a non-corporeal way. In this way, a solid legal argument for the classification of streaming as public use would be extremely difficult. This argument will be best explored in the next section of the text.
The normative scenario of the internet in Brazil
As can be seen, there is a strong controversy surrounding the legal nature of streaming practices in Brazilian territory. However, the main factor behind this controversy is the law applied to the question.
The Brazilian copyright law dates back to 1998. It was a time when the implementation of Internet for mass commercial use in Brazil and in the world was very incipient and was still in its first stages of implementation and development. Therefore, the text of Law No. 9.610/98 was approved without taking into account the profound changes that copyright has undergone since the emergence of online tools such as streaming.
Taking into account the historical context in which the law came into force, it is easy to understand why there is no detailed mention of the internet in the legal text. Thus, one understands the reason why such an extensive interpretation of the exemplary role of article 68, paragraph 3, is needed to qualify online streaming as public use.
It is certain that legal hermeneutics has as function the teleological interpretation of the current law, so that it is applied according to the original intentions of the legislator despite the considerable outdatedness of the text in the present. However, the internet represented a scenario of such paradigmatic and disruptive change in the way individuals consume copyrighted content that is no longer sufficient a mere terminological update of the concepts pointed out in the legal text: it is necessary to create a new copyright legislation in Brazil, updated and aware of the reality in which we live. In this sense, it is worth mentioning that Bill 3.133/12 – which seeks to amend, update and consolidate copyright legislation, among other measures – is in discussion in the Legislative. The Bill was filed in January 2015, but unfilled about two months later, in March 2015, although no progress has been made since then.
This is even more important in Brazil due to the international importance that the country has achieved in the legislative scenario of the internet. The Brazilian Civil Internet Framework (Law No. 12.965/14) is considered worldwide as a reference in internet legislation, having preceded similar legislative processes in countries of Europe and North America, for example. In this context, it is extremely important that Brazil maintains this healthy legislative environment for innovation, through laws that are appropriate to current times.
In summary, therefore, it is possible to perceive an intense debate about the technology of streaming as a tool of consumption of works protected by copyrights. This debate, however, revolves around several factors, but mainly the state of outdatedness of the Brazilian laws on this subject and similar others. The solution of the problem revolves around a development of the legal order in relation to the new technologies and also of an update in the law of copyright in force in the country. Only then will it be possible to build a regulatory environment appropriate to the context of expanding the use of new technologies.
What about you: what do you think about the classification of streaming services in Brazil? Are current laws enough to meet the demands of the judiciary, or do you believe that a new legislative process is needed to protect these new technologies? IRIS will continue to follow the theme and its discussions in the Brazilian and international scenarios.
As we already know after reading this text, streaming is a technology used by everyone in everyday life. IRIS, for example, has a YouTube channel, where we often publish a series of content related to Law, the internet and society (keep in mind that the videos are produced in Portuguese, though). If you are interested in the topic, do not forget to check out our posts by clicking here!