Technological progress in the software, film, music, editorial and show business industries has caused new ways of intellectual property exploitation of the rights over the works contained and diffused in the digital environment and of the transmissions and retransmission of the emissions that containing them or not, can also involve copyrights and/or related rights protected by legislation.
In this scene, ways of intellectual property diffusion have arisen such as the one known as “streaming”. Although Peruvian current legislation does not include a provision defining the concept “streaming”, the “Guía de Derecho de Autor en el Cine” published in 2013 by INDECOPI –National Institute for the Defense of Competition and Protection of Intellectual Property- and the USAID Project |Facilitating Commerce of the United States Agency for International Development, made as a Copyright Booklet for the sectors of the cultural industries, in a footnote, when referring to proprietary rights recognized by law, defines such term as follows: “Streaming is providing digital audio and/or video contents through Internet, which does not imply reproducing them in the user’s server.
Due to its global and friendly character, streaming allows the indiscriminate and limitless use of intellectual property in a very easy way and its consequent world commercialization, which affects copyright and related rights and each time will affect them more if adequate mechanisms regulating the exploitation are not created in order to establish the payment of an adequate remuneration or compensation to authors, singers and performers, to phonogram and audiovisual producers, to radiobroadcasting institutions and to publishing houses, that is, to all actors participating in the process of intellectual creation and of exploitation of those creations and productions.
As abovementioned, Peruvian legislation does not specify the concept “streaming” and certainly the same is not equivalent to a reproduction of intellectual works in the broad sense of the term as defined by law. “Reproduction” is characterized by the fixation of the work or intellectual production in a carrier or means allowing its communication, despite the same comprises the electronic storage of the work and obtaining copies of all the work or a part thereof. Nevertheless, the fixation of the work in a material carrier or its electronic storage does not necessarily occur in streaming. Streaming would be rather similar to the figure of the “public communication”, that is, according to current legislation, any act by which one or more persons, gathered or not in the same place, can have access to the work without previous distribution of physical copies to each of them, through any means or procedure, analog or digital, known or to be known, that serves to diffuse signs, words, sounds or images. In this context, any process needed and enabling the public to access the work constitutes an act of communication, and streaming, due to its nature, would fall within this general definition as a form of public communication.
Thanks to the fact that the general provisions of Copyright Law are sufficiently broad to comprise novel and varied forms of exploitation of intellectual works and of the emissions that containing them or not are transmitted or retransmitted, it is possible to defend copyright and related rights against unauthorized exploitations or those that could exceed the limits of the fair use, that is, those that do not interfere with the rule of exploitation of intellectual works nor cause unfair damage to the legitimate interests of the author or holder of the respective right. In fact, according to current legislation, any exception or limitation to intellectual property rights that could be established in law is of restrictive interpretation and cannot be applied to those cases that are contrary to fair uses. It is important to note that the author or holder of the right holds all patrimonial exploitation rights that have not been expressly transferred and that each of the forms of exploitation of the works is independent from the rest, so the transfer of each way of use must be expressly stated and written, remaining reserved for the author all the rights that have not been explicitly transferred.
Regarding streaming as a way of public communication, it is worth stating that law establishes that it is lawful, without author’s authorization or payment of additional remuneration, the transmission or retransmission, by a radiobroadcasting institution, of a work originally broadcasted by it, provided said public transmission or retransmission is simultaneous with the original radiobroadcasting and that the work is broadcasted by radio o publicly transmitted without alterations. Nevertheless, in application of the regulations on fair use which are required to every copyright exceptions, the retransmission through Internet of the emissions of radiobroadcasting through any means without the authorization of the holder or holders of the right over said emissions or of the holder or holders of the rights over their content will not be allowed in any case.
In this point, it is important to make the difference between the emission itself and its content. Various resolutions of the Copyright Commission of INDECOPI explain said difference in the following way. The emission is the means by which the radiobroadcasting institution or cable station sends its signal, the same that is received by the public through an equipment (television set, radio, computer, etc.), which allows the public to see and/or listen to the content of said emission. With respect to the emission itself, it corresponds to the radiobroadcasting institution or to the cable station in this case, the exclusive right to perform, authorize or prohibit the retransmission, recording and reproduction of said emission. The content of said emission can be composed of sounds, images or both, which can constitute works, interpretations, performances or other productions such as soccer games, concerts or interviews with diverse personages. In this conceptual framework, the right of exploitation of the content of a signal corresponds to the owner of said content, whereas the right of exploitation of the emission will correspond to the owner of said emission, being possible that they coincide or not. Thus, for example, the right of exploitation of a work or audiovisual production will correspond to its producer, which can coincide or not with the radiobroadcasting institution, owner of the signal in which said work or production is contained.
By virtue of the extent of the law text, it is possible that it comprises any infringement against copyright and related rights committed through streaming. These infringements can be prosecuted in administrative or criminal instances and can deserve pecuniary or freedom deprivation sanctions, effective or not, as appropriate. In the administrative instance, the rule is that it shall be considered as an infringement against copyright and related rights the violation of any of the provisions contained in the law of matter and particularly, in the instant case, the public communication through streaming without the authorization of the holder of the respective rights over the content and over the emissions, containing or not intellectual works, interpretations or performances. In the criminal instance, it shall be sentenced to imprisonment for not less of two years nor more than six years and from thirty to ninety fine days, whoever with respect to an artistic interpretation or performance, a phonogram or an emission or transmission of radiobroadcasting, or an audiovisual recording or a photographic image expressed in any way, performs without prior and written authorization of the author or holder of the respective rights, their public communication or diffusion, transmission or retransmission through any or the means or procedures reserved for the holder of the corresponding right.