Copyright and Television

13Jul07

Update: The book will be out soon – details on the Television & American Culture website.

My major project for this summer is to finish (or come real close!) a draft of my textbook, Television and American Culture. The goal of the book is to introduce television through a topical structure, using six basic facets to structure the project: television as a commercial industry, a democratic institution, a textual form, a site of cultural representation, a part of everyday life, and a technological medium. So if my blog writing is less than prolific, hopefully it’s because my energies are aimed at the book and not due to time spent in summer procrastinations.

But I want to post part of the book I’ve been working on to get feedback. This is from the Democratic Institution chapter (Ch. 2), which spans television regulation, public TV, journalism, and political advertising. This section, called Copyrighting Programming, comes after a discussion of TV regulation and the FCC. The issue of copyright is not one that tends to get as much play within TV studies as within new media areas, in part because of reasons I mention in the excerpt, but I do think it needs to be included in any overview of the television industry and regulation. I’d love to have any thoughts as to areas concerning TV & copyright that deserve inclusion in an introductory survey that are left out, any issues that are less clear than they should be, or any other thoughts that might help me improve this section & the book. Thanks in advance!

(As you’ll see, there are a lot of references to other chapters, especially Ch. 1 on the industry and Ch. 6 on technology – hopefully it’s still clear as excerpted.)

Copyrighting Programming

Most regulations of television are overseen by the FCC, serving as the guardian of the public interest while facilitating private control of the airwaves. But one key aspect of governmental regulation outside of the FCC’s scope helps shape television and allows private interests to profit from broadcasting and cable systems: copyright. While copyright policies are so widespread and broadly followed as to not be commonly regarded as an explicit regulation, it is crucial to understand how copyright impacts television programming and how its policies are being challenged in the era of digital convergence, potentially transforming the entire business model of the media industries. Importantly, copyright policies are an aspect of media policy where the industries have consistently lobbied for more regulation rather than less, undercutting the assumption that regulation always harms business interests and deregulation furthers them.

Copyright policies are grounded in an explicit clause in the U.S. Constitution, authorizing Congress to grant exclusive rights of a work to its creator for a limited time. These rights have expanded greatly in the 20th century, notably extending the term of copyright repeatedly and expanding the purview of copyright to include derivative works and prohibiting technological means of non-authorized copying. For new television programs today, every show and episode is copyrighted by its production company for a term of 95 years, granting the production company exclusive rights to license or sell the program or adaptations of its content for almost a century. These protections effectively allow producers and distributors to offer exclusive access to programming, enabling the commercial system of television broadcasting.

While rights holders have the ability to restrict access to their copyrighted material, obviously television producers want their material to be seen and consumed, not just remain under lock and key. Copyright maintains a balance between the owner’s right to control the terms of how their works are consumed with the public’s ability to view and make use of copyrighted works. A provision in American copyright law allows for fair use of copyrighted material without permission or payment, provided that such use is limited to small portions of a work, non-commercial uses, educational, critical, or satirical purposes, or other defenses against copyright litigation. Fair use is designed to be a somewhat ambiguous and flexible defense against rights holders suing users for copyright infringement, not a clear-cut set of rules to follow or avoid. Some cases are fairly straightforward—for instance, nearly every image from a television program in this book is copied under fair use to support the book’s educational and critical mission, while satirical programs like The Daily Show regularly reuse news footage as fair use to critique and parody the news media. Other uses are more borderline, such as a blogger embedding a clip from television news to illustrate a point about current events. In practice, fair use is only a defense against litigation, so most users are reluctant to risk enormous lawsuits at the hands of global corporations seeking to protect their copyrights and thus relent when pressured by media industries.

One key copyright legal decision significantly shifted the future of American media. In the mid-1980s, the Supreme Court ruled that a viewer using a VCR to copy and “time-shift” a television broadcast for their personal use fell under fair use provisions and thus was not an infringement of copyright. This decision, widely known as the Betamax case, led to the growth of the VCR technology and a broad array of video copying and recording possibilities to be discussed in Chapter 6. Not all copying practices are protected by the Betamax case, as online file-sharing and tape-trading do not constitute personal fair use, but the case allowed technology companies to create and sell devices enabling both infringing and non-infringing uses. Today, recording broadcasts, time-shifting, and use of recorded material within classrooms or for critical commentaries are all fair uses that are exercised regularly across America, even though the television industry was tried to push for policies to restrict such uses. Specifically, the industry has lobbied for regulations that would restrict copying of digital broadcast materials even when following fair use provisions—in 2003, the FCC mandated that televisions include a system called the broadcast flag that would allow broadcasters to stipulate and restrict how digital transmissions could be copied, but the policy was overturned by the courts as overstepping FCC authority. As of this writing, the industry is working to lobby Congress for a similar policy to be mandated by Federal law.

Copyright is one of the legal areas that reinforces the industrial consolidation and limited competition described in Chapter 1. Ultimately the “products” owned by television producers are just the copyrights to their programming; being able to charge for the right to broadcast and distribute programming is the chief way that producers make money and participate in the industry. Rights to broadcast and use programming are typically priced at high levels that make them inaccessible to competitors outside the television industry, setting the bar for the internal dealings within the industry too high for most new entries, as well as favoring internal rights sharing within a corporation to create synergy discussed in Chapter 1. Television programmers and distributors also often create reciprocal agreements for sharing footage without clearing copyrights or paying royalties—for instance, sports broadcasters and cable channels regularly allow each other to use highlights from each other’s programming in a mutual exchange. However, new competitors might find it difficult to get comparable access to sports footage at the risk of encroaching on the market of established broadcasters; such protections even apply to non-commercial uses of footage, as broadcasters and sports leagues have cracked down on users posting highlights on online video sites without permission or paying royalties to broadcasters. Sports leagues and broadcasters often overstate their copyright privileges—every baseball broadcast states that its descriptions and accounts of the game cannot be retransmitted without consent, a legalistic claim that has little backing in copyright law. In general, media industries aggressively assert their copyright privileges, both in rhetoric and litigation, leading to an environment where most people assume that rightsholders can dictate the terms of everyday use more than is legally guaranteed, an aspect of regulation that directly impacts fan practices discussed more in Chapter 5.

The issue of copyright and television has become more central in the digital convergence era for a number of reasons. As television programs have become more marketable with DVDs and downloadable content, as discussed in Chapter 6, the value tied to a program has shifted. In the classic network era, a television program’s economic value was solely generated from transactions within the industry, between producers, distributors, advertisers, and transmitters. Although arguably a viewer watching a program via shared VHS might result in lowered ratings and thus impact advertising revenue, the ratings system is so restricted that the vast majority of viewer behaviors had no direct impact on the industry’s revenue. This changed somewhat with premium cable channels, as sharing tapes of HBO programs clearly undercuts the subscription revenue model. Today, viewers can purchase copies of programs on DVD or download episodes via iTunes or other services, making the potential loss of illicit copying even more tangible to rightsholders. With the rise of easily accessible digital distribution technologies like online file-sharing or streaming video, the industry regards every viewer watching an illicitly obtained copy as potential lost revenue from DVD sales or downloaded sales.

The industry’s crisis in digital copying corresponds to similar issues faced by the music and film industries, but television’s response has been different, generally avoiding lawsuits against users for illegal downloading. In part the television industry’s comparative inaction against downloaders has been due to the negative backlash to the music industry’s campaign against its own customers, but also stems from television’s different business model—as discussed in Chapter 1, television programming has long been seen as “free” by viewers, with the advertising exchange not directly resulting in monetary spending. Since VCRs and other recording technologies have allowed legal time-shifting of seemingly free content, it doesn’t seem substantially different to viewers to download a missed program from a file-sharing system versus having recorded it on a DVR or viewing it on a network website. While the industry regards such downloading as illegal, the rhetoric of the music industry framing downloading as piracy or theft seems less appropriate for a television program that is already available at no direct cost. Thus the industry has been willing to offer free access to programming via network websites, often with embedded advertising, or allowed for low-cost downloading with greater technological simplicity than file-sharing programs, possibilities explored in more depth in Chapter 6.

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Filed under: Academia, Copyright, Fair Use, Media Politics, Media Studies, New Media, Technology, Television, TV Industry, TV Textbook   |  5 Comments