Television as Something Special? Content Control Technologies and Free-to-Air TV

By Kenyon, Andrew T.; Wright, Robin | Melbourne University Law Review, August 2006 | Go to article overview

Television as Something Special? Content Control Technologies and Free-to-Air TV


Kenyon, Andrew T., Wright, Robin, Melbourne University Law Review


[Many areas of digital communication, including digital television, raise concerns about unauthorised reuse of content. Proposals exist in the United States and Europe for applying content control technologies to free-to-air digital television to limit the reuse of broadcast content. These proposals have implications for regulatory options, and for the social and cultural position of television in countries such as Australia. Each proposal also demonstrates the importance of current issues in copyright reform for questions of media law and policy. By examining the history and current status of the broadcast flag in the United States and the Content Protection and Copy Management standard being developed in Europe, this article suggests that Australian regulators are likely to face similar calls for action on digital broadcast content and explains some of the possible regulatory choices regarding the transmission and the reception of digital free-to-air content. As with the United States' and European plans, the choices made in relation to television may have wider implications for digital networked communications and the evolution of a diverse media environment.]

CONTENTS

I Introduction: Television's Digital Future
       A Interaction between Copyright Law and Broadcasting Regulation
       B Levels and Locations of Control over Reusing  Content
       C Impact of Reuse Restrictions on Free-To-Air Television in
         Australia
II The US and the Broadcast Flag
       A Background
       B FCC Rulemaking and Technology Approval
       C Review by the United States Court of Appeals
       D Current Status of the Broadcast Flag
III Europe and CPCM
IV DTV and Content Control
       A The Limits of Technological Control
       B Control and Copyright
       C Regulatory Powers
V Conclusion

1 INTRODUCTION: TELEVISION'S DIGITAL FUTURE

Australian free-to-air television is becoming digital, (1) even if the transition has been slower than expected when conversion plans were announced in 1998. (2) Free-to-air digital television ('DTV') commenced in 2001 and reached all metropolitan and rural areas over the following three years, (3) However, digital uptake has been slight with only 15 per cent of households receiving free-to-air DTV at 31 December 2005 and 12 per cent subscribing to DTV. (4) The transition to digital poses many challenges for Australian industry and policymakers, with numerous broadcasting and copyright reviews relevant to DTV conducted since the late 1990s. (5) As well as the substantial work of the Productivity Commission in 2000, (6) more recent reviews have examined aspects of the DTV regulatory framework related to simulcasting, licences and quotas, (7) the treatment of technological protection measures ('TPMs') under copyright law, (8) and copyright exceptions including fair dealing. (9) Many of the reviews are ongoing. (10) Television broadcasting is a complex policy area, with multiple changes in technologies, industries and audiences relevant to the Australian environment. One area which has not received a great deal of attention in the policy process surrounding DTV is the concern of copyright owners about protecting digital audiovisual content from unauthorised reuse.

The emergence of broadband internet and associated equipment such as digital video recorders ('DVRs') (11) means that television material broadcast digitally 'in the clear'--without any form of technological protection--has the potential to be copied and redistributed online without any loss of quality. Such redistribution may well breach the copyright held by creators, investors or broadcasters. However, the experience of content owners with peer-to-peer music distribution suggests that protection by copyright law alone is unlikely to prevent unauthorised reuse of digital broadcast material. In addition, the tradition of open and free reception of television content may leave viewers with few qualms about reusing content that has already been made available somewhere in the world on broadcast television. …

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