Copyright Office Recommendation on Licensing Need Not Consider ‘Hypothetical’ Effects, Says NAB
The U.S. Copyright Office should not delve into “hypothetical questions” about whether changes to the statutory copyright system would require changes to the Communications Act or FCC rules, said the NAB. It filed reply comments with the copyright office on what the office should recommend to Congress about alternatives to statutory licensing, a report required by the Satellite TV Extension and Localism Act. Multichannel video programming distributors made “misleading complaints about communications regulatory policies over which this Office has no jurisdiction,” said NAB.
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The distant signal statutory licenses should be eliminated by 2015 in all markets, said NAB. To deal with short markets that don’t have access to local big four network affiliates, NAB would support a “narrowly-tailored” exception. The proposed exception, which would, among other things, limit the license to only one distant signal of the affected network and require MVPDs to pay a royalty fee, addresses concerns raised by rural MVPDs and DirecTV. The rural MVPD’s suggested a staggered phase-out of the licenses and DirecTV said distant signal licenses should be retained. Neither of the DBS companies filed reply comments.
The NCTA is unconvinced by the logic of instituting a new licensing system, it said in its comments. “The record shows that none of the licensing alternatives would be an effective substitute for the license in place today,” it said. The proposals would instead “result in a significant loss of programming and increased costs for viewers,” said NCTA.
Suggestions so far have fallen short of preserving the balanced copyright interests that have been the basis for the license for over three decades, NCTA said. The Copyright Office “would be remiss” if it recommends that “any of these untested and risky approaches for clearing the rights to broadcast programming be substituted for the proven approach of the statutory license,” it said.
The Motion Picture Association of America and other producers and distributors of programming said in a joint filing they disagreed with efforts to keep the status quo. The MVPDs ignore the “most fundamental and problematic characteristic of any compulsory licensing scheme -- the demonstrated failure of such schemes to allow for fair, which is to say market, value to copyright owners whose works are used under the licenses,” they said. Copyright owners suffer from compulsory licenses, despite suggestions otherwise from MVPDs, because they are forced to take below-market payment, as has been recognized before by the Copyright Office, they said.