Online Video Flexibility Urged in Compulsory Licensing
AT&T urged the Copyright Office to consider each type of online video distribution in deciding whether the technologies are covered by compulsory licenses. The comments came in a reply filing on the Office’s compulsory license notice of inquiry (WID July 26 p2). AT&T said the office shouldn’t paint new video delivery systems with broad strokes in deciding whether operators fall under rules that give cable and satellite providers blanket permission to carry broadcast shows without getting approval from each copyright holder. Capitol Broadcasting piggybacked on AT&T’s arguments, claiming that Section 111 of the Copyright Act applies both to its proposed Web subscription video service and the Bell’s operational U-Verse IPTV product.
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The Copyright Office shouldn’t conclude new technologies fit the definition of a cable system, assigned compulsory licenses under section 111 of the Act, the MPAA said. The group would prefer to repeal existing compulsory licenses for cable systems and satellite providers. If the Copyright Office decides not to junk the entire system, as officials’ comments at July hearings seemed to indicate, neither should it expand the scope of licenses, said the MPAA. The filing was made on behalf of its members and other producers of TV shows and movies for the Program Suppliers group.
It’s unclear if new delivery systems, such as Verizon’s FiOS TV, “present a compelling case” that they should be covered under section 111, MPAA said. Calling for a “comprehensive analysis,” it urged the Copyright Office to approach its decision “with caution.” IPTV may be eligible for compulsory licenses, but any video distributor arguing for that status “bears a heavy burden to demonstrate that it is virtually indistinguishable from a ‘cable system,'” MPAA said. Capitol’s proposed system for streaming video over secure links to PCs in a particular TV station’s viewing area don’t deserve copyright exemption, the group said. “Cable on the Internet, regardless of putative security measures taken, raises too great a danger of possible widespread dissemination that cannot be adequately protected against or compensated for under a compulsory licensing scheme,” said MPAA. “The Copyright Office should reject arguments that open Internet-based retransmission or streaming of television programming, regardless of the security or technology employed, be subject to compulsory licensing.”
Capitol deserves compulsory licenses because its service resembles IPTV in that it covers a limited geographic area and uses three levels of security to keep anyone elsewhere from getting the video, it said. It cited arguments by MPAA, Disney executive Preston Padden and others, who say section 111 may apply to IPTV. “AT&T’s argument for application of Section 111 to IPTV cable systems is identical to Capitol’s - - yet neither Mr. Padden nor others make any real criticism of AT&T’s position,” said Capitol. The company’s “plant is every bit as closed and secure as a traditional cable system or satellite system,” said Capitol. Its technology uses what amounts to cable headends to send video in IP packets, encrypting the content “so it can be retransmitted to paying subscribers vetted by the security and verification procedures that are inseparable from the system itself.”
In the Act, Congress recognized that licenses should be available to new technologies by making the law “flexible enough to accommodate these changes,” said AT&T. The Program Suppliers’ suggestion to revise the licensing scheme to reflect every new distribution method “is simply bad policy,” it said. “The ‘close the door’ approach advocated by the Program Suppliers would create confusion in the marketplace, deter investment in innovative technologies and impede competition. This also counsels caution before making any broad generalizations about the eligibility of an entity seeking to deliver broadcast programming via a particular mode of distribution, such as the Internet.”
Be cautious in gauging eligibility for compulsory licenses, NAB said. “NAB remains concerned that the open global access and digital attributes of Internet technologies must be carefully accounted for,” it said. AT&T should only qualify as a cable system for purposes of copyright licensing if it also follows FCC cable rules, said NAB. AT&T argued that the two sets of rules are not linked.
NAB can’t decide if Capitol’s technology adequately restricts transmission to eligible subscribers, it said. “Internet-based retransmission systems must be evaluated carefully to determine whether they can both protect local market exclusivity and comply with the requirements the FCC imposes on cable systems,” the group said. NAB and NCTA urged the Copyright Office to keep compulsory licenses for cable operators. NAB said section 122 rules for satellite systems also should be maintained. The Office soon will post online all replies, due Oct. 1, said an official. - Jonathan Make