United States Copyright Office (2011)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

United States Copyright Office (2011)
Title: Satellite Extension and Localism Act (STELA), Section 302 Report
Author(s): United States Copyright Office
Year: 2011
Citation: Satellite Extension and Localism Act (STELA), Section 302 Report, United States Copyright Office (2011), available at http://copyright.gov/reports/section302-report.pdf.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: In the course of preparing this Report, the Office met with many stakeholders, including copyright owners and representatives from the broadcast, cable and satellite industries, as well as with the Federal Communications Commission, both to discuss pertinent issues (including timing and implementation concerns) and to identify the kinds of private licensing models used in the marketplace today (or which could be used reasonably soon) to acquire and retransmit broadcast and cable content. Interested parties were invited to file public comments and the Copyright Office held a public hearing on June 10, 2011.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: Yes
Time Period(s) of Collection:
  • 2011
Funder(s):
  • United States Copyright Office

Abstract

On May 27, 2010, President Obama signed the Satellite Television Extension and Localism Act of 2010. See Pub. L. No. 111-175, 124 Stat. 1218 (2010) (hereinafter “STELA”). The legislation extended the term of the Section 119 satellite distant signal statutory license for another five years, modified the Section 111 cable statutory license and the Section 122 satellite local-into-local statutory license in several respects, and provided updates to account for changes resulting from the nationwide transition to digital television. STELA also directed the Register of Copyrights (hereinafter “Copyright Office” or “Office”) to submit recommendations to Congress to achieve the phase-out and eventual repeal of Sections 111, 119, and 122, including proposals for timing and marketplace alternatives. In these proceedings, the Office floated three broad alternatives to the statutory licenses currently in place: (1) sublicensing; (2) collective licensing; and (3) direct licensing, and explored with stakeholders certain fundamental questions – among these, how such options might function in an open marketplace and the benefits and drawbacks of each model. The proceedings also highlighted the fact that, although the statutory licenses at issue are copyright provisions, they are intertwined with equally complex provisions of communications law and policy – the implications of which are outside the expertise of the Copyright Office and require further consideration by Congress.

Main Results of the Study

The Office supports a free market for licensing the retransmission of broadcast television programming, finds that there are workable marketplace alternatives to the existing statutory licensing system, and suggests a phase-out approach that not only respects the rights of subscribers but also recognizes the concerns of all the affected parties. The recommendations set forth herein reflect all of these considerations.The Copyright Office hereby makes the following recommendations to effectuate a phase-out of the statutory licenses:

• Copyright owners should be permitted to develop marketplace licensing options to replace the provisions of Sections 111, 119 and 122, working with broadcasters, cable operators, satellite carriers, and other licensees, while taking into account consumer demands.

• Business models based on sublicensing, collective licensing and/or direct licensing are largely undeveloped in the broadcast retransmission context, but they are feasible alternatives to securing the public performance rights necessary to retransmit copyrighted content.

• The options of sublicensing, collective licensing, and direct licensing do not represent the entire universe of possibilities, are not mutually exclusive, and will not remain static. Business models may emerge that incorporate these concepts in part or in combination, and technology will continuously inform the practices of both licensors and licensees. Over time, marketplace licensing should evolve in a variety of innovative ways, subject to investment and experimentation in the marketplace.

• The Copyright Office recommends that Congress provide a date-specific trigger for the phase-out and eventual repeal of the distant signal licenses, building in sufficient time for a measured and orderly transition period.

• Before determining the date-specific trigger and transition period for the phase-out of the distant signal licenses, the Copyright Office recommends that Congress evaluate the concerns of stakeholders who operate with limited resources in the broadcast programming distribution chain and determine whether special consideration is advisable.

• During the transition period, the Section 111, 119, and 122 statutory licenses should not apply to any broadcast station that has obtained the rights to retransmit all of the content carried on its signal, provided that the local broadcast station forgoes its mandatory carriage rights under the United States Copyright Office STELA § 302 REPORT 140 must-carry and carry-one carry-all provisions of the Communications Act. This “station-by-station” option would apply to all broadcast stations, including those in distant markets. Under this option, MVPDs would be required to negotiate directly with the broadcast station for carriage of the programming on the broadcast signal.

• The Copyright Office recommends that Congress delay the phase-out and repeal of the local signal licenses to a later time. This approach would provide stakeholders with an opportunity to test new business models with the least likelihood of disruption to consumers, and give Congress the advantage of drawing on that experience when considering when and how to address the local signal licenses.

• The Copyright Office recommends that Congress carefully consider the communications law and policy implications of repealing the statutory licensing system.

Policy Implications as Stated By Author

  • The Copyright Office recommends that Congress provide a date-specific trigger for the phase-out and eventual repeal of the distant signal licenses, but leave repeal of the local signal licenses to a later time. This approach would provide stakeholders with an opportunity to test new business models with the least likelihood of disruption to consumers, and give Congress the advantage of drawing on that experience when considering when and how to address the local signal licenses.

• Before determining the date-specific trigger and transition period for the phase-out of the distant signal licenses, the Copyright Office recommends that Congress evaluate the concerns of stakeholders who operate with limited resources in the broadcast programming distribution chain and determine whether special consideration is advisable.

• In selecting the sunset date for the distant signal licenses, the Copyright Office recommends that Congress build in a sufficient transition period, during which cable operators and satellite carriers should be instructed to negotiate with broadcast stations for carriage of the programming on the broadcast signal in cases where said broadcast stations have obtained the rights necessary to retransmit all of the content carried on their signals (provided, however, the broadcast stations forgo their mandatory carriage rights under the must-carry and carry-one carry-all provisions of the Communications Act).

• The statutory licenses at issue are codified in copyright law but do not operate in a vacuum. They interact with equally complex provisions of communications law and regulations. The Copyright Office recommends that Congress consider and, as appropriate, address these provisions in tandem with the recommendations described in this Report.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Green-tick.png
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 18
Level of aggregation: Stakeholders
Period of material under study: 2011