Copyright Protection in the Cable Television Industry: Satellite Retransmission and the Passive Carrier Exemption

Abstract

The development of the cable television' industry has been fraught with copyright and regulatory problems. The absence of cable copyright liability prior to 1976 created an imbalance in the rights enjoyed by broadcasters, copyright holders and cable operators. These parties hoped that the imbalance would be rectified by the limited copyright liability imposed on cable systems in the Copyright Revision Act of 1976 (Act) and by Federal Communications Commission (FCC or Commission) regulation of cable's use of copyrighted television broadcasts pursuant to the Consensus Agreement of 1972 (Consensus Agreement). Unfortunately this hope has not been fulfilled. Whether copyright liability even exists for retransmission carriers, an important segment of the cable industry, remains unclear. This Note contends that the passive carrier exemption in section section 111(a)(3) of the Copyright Revision Act of 1976 should be strictly construed. Carriers that are not entirely passive should not be protected and therefore should obtain the permission of the copyright holder before retransmitting a copyrighted television broadcast signal. In reaching this conclusion, this Note examines the industry and legal settings of the issue, analyzes the retransmission carrier's copyright liability under the Act, and justifies the imposition of copyright liability on certain carriers on the basis of the language and intent of the Act and broader policy considerations.

Keywords: Copyright, television broadcasting, cable television, intellectual property, retransmission carriers