Copyright Office Statutory License NOI Expected to Draw Some Online Video Commenters
A notice of inquiry from the Copyright Office asking about the future of statutory licenses under Sections 111, 119 and 122 of the Copyright Act is expected to elicit comments from an array of companies and trade associations, including online video companies, executives and lawyers said Thursday. The notice was published Thursday in the Federal Register, beginning a 45-day comment period. The notice, prompted by last year’s STELA Act, asked whether a market-based program could replace the statutory license for pay-TV carriage of broadcast programming, and how the licenses might be phased out. Among their purposes, the licenses allow distributors to carry TV stations without seeking permission from every rightsholder involved in a piece of broadcast content, such as the owner of a music recording used during a TV program.
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The notice also asked about how broadcast content is licensed for online distribution and about the types of business models that might succeed on the Internet. And it sought comment “on whether the TV Everywhere effort and popular services such as Hulu and Netflix, will eventually offer live broadcast signals to their subscribers with a broadband connect.” That may prompt participation from existing and would-be online video companies, industry officials said. “Those who would be able to benefit from” an expanded statutory license “are obviously going to chime in,” said Todd Weaver, CEO of Ivi TV, an online video distributor that’s arguing before a federal court it has the right to the Section 111 license. “Gaming console folks, set-top box guys -- anybody who is looking to get into the media space,” he said. Ivi will file comments as well, he said.
Major trade associations such as NAB, NCTA and content owners including sports leagues, the recording industry and the movie industry will also probably participate, said Kevin Goldberg, an attorney with Fletcher Heald. “I don’t expect that smaller stations and individual companies will be as involved” as the major trade associations and larger media companies, he said. However, “I wouldn’t be surprised if Apple or Google or Roku stepped in and gave their input as to why a definition of a cable system should include an online distributor,” he said.
The Copyright Office has addressed the future of statutory licenses before and been consistent in recommending their repeal, said Dan Brenner, attorney with Hogan Lovells. “It would not surprise me if the Copyright Office again comes to the same conclusion it has come to before,” Brenner said. But whatever decision the Copyright Office reaches, it will be up to Congress to change the law, and so far Congress has shown a willingness to keep the licenses, he said.
Though the Copyright Office’s report on the licenses is due to Congress later this year, Congress may wait several more years until the Section 119 license, which allows DBS operators to import the signals of distant TV signal, is set to expire again before taking up the issue, Goldberg said. “This is the first of what is likely to be a long process,” he said. “It may take five years for everything to shake out.” But Congress appears to want to get ahead of the process, he said. “They realize things are changing.” Hearings at the Copyright Office on the issues raised in the NOI could happen in June, the notice said.