When Channel Surfers Flip to the Web: Copyright Liability for Internet Broadcasting(*)
Fan, Baoding Hsieh, Federal Communications Law Journal
This Article argues that retransmission of video and television (TV) broadcasts on Internet Web sites should benefit from some system of compulsory (or statutory) copyrights. However, the applicability of a compulsory copyright license for Internet video will depend on what model ultimately evolves. This Article proposes two possible paradigms for the future. On one hand, "Internet TV" would provide continuous, real-time retransmission of over-the-air broadcast programming in direct competition with cable or direct broadcast satellite (DBS) systems, thus necessitating a compulsory copyright scheme. On the other hand, a pay-per-view "video library" scenario can rely solely on the market to determine appropriate royalty rates in response to consumer demand.
In the last decade, the rapid growth of cyberspace has primarily resulted from two symbiotic forces--technological advancement in multimedia capability and exploitation of the vast global marketplace made possible by such developments. Society is in the midst of what some call a "convergence,"(1) where changes in regulatory and technological environments have significantly blurred the line between traditional telecommunications services and entertainment. The most well-known illustration of this phenomenon is undoubtedly the Internet.
Digital streaming has enabled real-time transmission of audio and video over the expansive network. The technology has prompted many companies to create software to enable Internet broadcasting (also known as Webcasting). Many content providers, such as television networks and sports and entertainment programmers, have jumped on the bandwagon and expressed their support for the new method of delivery.(2) As a result, the cyberspace experience is becoming more and more like TV everyday, but with one major advantage: each viewer can potentially custom tailor what he sees and when he sees it.(3)
Furthermore, streaming video has the potential to "open up telecasting beyond the large corporations normally associated with broadcasting."(4) Anyone with a media server and a fast connection theoretically can set up his own Web site from which he can broadcast original programming or retransmit network favorites. The potential for a far greater number and diversity of participants sets the Internet broadcasting industry apart from the cable and satellite industries--each with relatively few providers.
How should such Internet broadcasts be treated in the legal world? Should the current copyright regime be modified to handle this new medium? Currently, retransmission capabilities for cable and satellite systems are secured through compulsory copyrights, as granted through legislation.(5) In 1997, the Copyright Office issued a comprehensive review of the copyright licensing regimes governing the retransmission of over-the-air radio and television broadcast signals by cable systems, satellite carriers, and other multichannel video providers, and it recommended against a congressional grant of compulsory licensing to Internet retransmitters.(6) In support of this opinion, the report cited the ongoing national and international debate over the major issues posed by instantaneous worldwide dissemination of broadcast signals via the Internet.(7) A letter dated November 10, 1999, from the Register of Copyrights to the U.S. Senate Committee on the Judiciary reaffirmed this conclusion.(8)
This Article contributes to the discussion by suggesting that online programming retransmitters should also profit from some system of compulsory copyrights.(9) However, it proposes that the need for a compulsory copyright license for Internet video will depend on the nature of the model that is eventually developed. For example, if Internet TV is intended to provide continuous, real-time retransmission of over-the-air broadcast programming as an alternative to cable or DBS systems, a compulsory copyright scheme would be required. …