Contemplating Life Without Compulsory Licenses

While much attention in the pay TV/broadcaster world has recently been focused on the Federal Communications Commission’s inquiry into possible changes to the retransmission consent process, a separate proceeding is cranking up over at the Copyright Office that could eventually lead to far more fundamental changes to the must-carry/retransmission system. The Copyright Office is exploring the possible elimination of the compulsory copyright licenses that form the core of the system that determines how, and by whom, over-the-air broadcast programming can be retransmitted. So while the FCC may be contemplating various changes, significant or otherwise, within the existing box, the Copyright Office is not just thinking outside that box; rather, it’s contemplating a situation in which that box no longer exists at all.

The alternatives suggested by the Copyright Office include:

1. Sublicensing ­ Instead of a compulsory license allowing an MVPD operator to carry a broadcast signal in its entirety, this approach would move the rights clearance process further down the chain.
2. Private Licensing ­ This allows a cable system or satellite carrier to negotiate with the copyright owner of a specific program for the right to perform the work. Of course, this market-driven process would appear to benefit the program producers to the detriment of the actual stations.
3. Collective Licensing ­ This involves copyright owners getting one or more third party organizations to represent them en masse.