There’s a nagging
point that copyright wonks might overlook in questions of broadcast and
cable—that cable companies pay not just for the statutory copyright licenses to
copyright holders, but also “retransmission consent” fees to local
broadcasters—even if the content they’re paying for isn’t owned by the local
When you watch network television channel (Fox, for
instance), on cable, you’re likely aware that your cable company is paying someone
to bring you that channel. After all, the shows you’re watching are coming from
Fox, not Comcast or Time Warner or Dish. It would make sense if Comcast was
then paying Fox for the rights to carry its programming.
But it doesn’t. Actually, in Oakland, for example, Comcast
is paying not Fox, but KTVU, the local Fox affiliate—a separate company. The
local broadcaster is the only way that the cable company can get at the
national network’s channel.
This is despite the fact that KTVU, the local affiliate,
doesn’t have a copyright in, say, 24,
or Bones. So what is Comcast paying
it for? Leaving aside the local news for a moment, why would Comcast be paying
hundreds of different local broadcasters who don’t own any copyrights—couldn’t
it just license the rights from the copyright holders directly?*
[footnote: *I’m simplifying here, since often, the copyright
holder isn’t actually the broadcast network carrying the program. Regardless,
the vast majority of the programs on the air and on cable, and what most people
are paying to get, aren’t made by local broadcasters.]
The answer lies in the fact that Comcast isn’t actually
paying for any sort of copyright license from KTVU. Instead it’s paying for a completely separate right—one not
actually based in copyright, but in communications law. That
right is what we’re talking about when we talk about retransmission consent. So in order for you to get your resurrected Jack Bauer
fix from your cable company, the cable company has to pay both the copyright
holder for the right to “publicly perform” the work under copyright law,
and then also pay the local
broadcaster for the right to retransmit the local broadcaster’s signal.
From a copyright-tinted perspective, this is bizarre. The
local broadcaster isn’t providing any additional creative content to the work,
yet they’re getting something like an exclusive “signal right”
in their broadcasts. Why shouldn’t the cable company just license content from
the national network (or even the production company directly), and then get a
separate license from the local broadcasters to carry their locally-produced
content? Or, to keep the licenses between just two parties, why not let local
broadcasters issue sublicenses for copyrights in the national content in a
package with the licenses in their own local productions?
Now, one of the reasons we have this somewhat convoluted
system is that Congress has, for a long time, wanted to ensure that local
broadcasters would serve local needs and have a way to fund it. But why create
a separate right in the signal rather than creating some other funding
mechanism? If providing money to local broadcasters was the real incentive, why
not be more direct about it, rather than this roundabout way that means local
broadcasters get the bulk of their money by providing non-local content?
These various vagaries and weird legal culs-de-sac are not
likely a surprise to communications policy or TV people, or anyone who’s read
paper on the problems of the video industry. But looking at this as a question
of exclusive rights can show just how bizarre our video system is, and provide
just one of many examples of a need for reform.
Original image by Flickr user Dunkoman.