George Mason University Antonin Scalia Law School

New Da Vinci Article on the Harmonization of Copyright and Communications Law

a hand holding a phone with holograms hovering above the screenThe Richmond Journal of Law and Technology (JOLT) has just published a new article by Professor Stuart N. Brotman, the inaugural Howard Distinguished Endowed Professor of Media Management and Law and Beaman Professor of Journalism and Electronic Media at the University of Tennessee, Knoxville. The article, Intersecting Points in Parallel Lines: Toward Better Harmonization of Copyright Law and Communications Law Through Statutory and Institutional Reform, was supported by a Leonardo da Vinci Fellowship Research Grant from CPIP and the research assistance of recent Scalia Law graduate Samantha J. Levin. The article traverses the history and development of copyright and communications law, which have historically followed separate paths, and offers potential ways that they can be harmonized to match the current realities of the media marketplace.

A section of the article is copied below:

Approaches to Better Harmonization between Copyright Law and Communications Law

This Article highlights above the current reality, where copyright law and communications law remain in separate legislative and regulatory domains, yet with overlapping interests as media has increasingly combined content in a phenomenon known as convergence. Looking ahead, there are several approaches to consider that may be beneficial in creating better harmonization between copyright and communications law.

Statutory reform would be the most durable potential route, but also the most difficult to achieve at a political level. Neither the broadcasting nor cable industries have sought to upset the status quo by seeking new legislation, and without their joint support, it is highly unlikely that Congress would be motivated to act on its own. In theory, if Section 111 was deleted from the Copyright Act of 1976, broadcasters and cable operators would need to negotiate directly with each other for retransmitted broadcast programming content. Rates would be set in the marketplace rather than by the current government agency now in charge of statutory royalty rates for cable, the Copyright Royalty Board (CRB), which was created under the Copyright Royalty and Distribution Act of 2004. In turn, the CRB could be abolished outright.

In communications law, a modification to the Communications Act also would need to be made in order to create legislative symmetry. This would involve eliminating the must-carry option in the 1992 Cable Act, except for commercial independent and public television stations that could be guaranteed must-carry status under a grandfather clause. This would mean that the vast majority of the most-viewed stations nationwide would need to negotiate retransmission consent rights in the marketplace, as they already do. In order to phase this in, Congress may wish to enact a sunset provision in the existing Copyright Act that would bring this about on a certain date, while also giving industry players an opportunity to plan accordingly for a post-compulsory license environment.

Although some might argue that leaving both sets of negotiations to the marketplace might result in prohibitively high transaction costs for broadcasters and cable operators, there may be countervailing economies created since both parties could conduct one set of negotiations that covered both retransmission content and signal carriage rights. There also would be no regulatory compliance costs since the CRB would be abolished.

This possible solution is more elegant than realistic, since legislation typically occurs when the affected industries push for Congress to act. Here, the problem is apparent, but the likelihood of logical legislative reform is very low because comfort with the status quo has become the norm.

Consequently, it is useful to consider several incremental approaches that do not require any legislative changes. First, the Copyright Office of the Library of Congress and the FCC can and should begin to work more closely together given the converged and overlapping interests highlighted above. Such coordination is especially important as rapid technology shifts, such as the emergence of major Over-the-Top (OTT) services (e.g., Netflix, Hulu, Amazon Prime), challenge the established business models based on broadcasting and cable television.

Timely data and analysis regarding real-world activities in the brave new world of digital convergence would serve both agencies well. The recently-formed FCC Office of Economics and Analytics can serve as a resource for the Copyright Office as well as the FCC, especially since the Copyright Office does not have a comparable internal unit that it can draw upon for policy initiatives. Enhanced funding might be necessary to accomplish this expanded role.

Both agencies already have the capability to develop Notices of Inquiry (NOIs) to seek information and perspectives from affected industries and the public at large. With greater coordination, they could share the compiled records of separate NOIs, or even develop joint NOIs for topics of mutual interest where a broader base of responses and perspectives could be solicited in a single proceeding.

There can also be a formal designation of the FCC Chairman as the principal liaison to the Copyright Office. This would provide for an institutional structure that could promote cooperative activities at the highest levels of both agencies.

Congress can take advantage of such cooperation through minor legislative amendments to both the Copyright Act and the Communications Act that are not likely to raise any political objections. Congress could require the Copyright Office and the FCC to issue a joint report to the respective committees in the House and Senate on a periodic basis (e.g., every two or four years) that discusses the state of copyright protection on digital media platforms, including broadcasting, cable, satellites and broadband. These reports should reflect affected industry input, and can be useful materials for Congress to consider in formulating any legislative initiatives that would require support by these industry players.

To read the article, please click here.