This technical consultation concerns only the elements of the Government response that recommend repealing Section 73 of the Copyright, Designs, and Patents Act 1988. Section 73 currently states that the copyright in a broadcast is not infringed where that broadcast is retransmitted via cable. More specifically, this technical consultation considers the practical impacts of the repeal of Section 73, and any necessary transitional arrangements.
The Government’s clear policy intent is for Section 73 to be removed without payment to Public Service Broadcasters (PSBs) and at zero net fees to both PSBs and cable providers. However, there could be an impact on rights that have previously been exempt from remuneration in the underlying copyright content in cable retransmissions (scriptwriters, performers, musicians, etc).
Section 73 of the CDPA provides that the retransmission of the PSB core channels (all BBC Channels, ITV1, and Channel 4 and 5’s core channels) via cable is exempt from copyright fees. The purpose of the legislation which preceded Section 73 was to facilitate the retransmission of public service (analogue) broadcasts by cables in areas where aerial reception was poor. By the time Section 73 was enacted the purpose was to encourage cable operators and others to invest further in the infrastructure of cable networks and to ensure that public service broadcasts were equally available to all parts of the population including in remote areas.
Today, there are a wide variety of platforms by which public service broadcasts can be received. Digital television services are now universally available through a combination of digital terrestrial television and satellite, as well as cable. The cable market has now moved from a myriad of local providers in the 1980’s to one big provider and very few local platforms, and from 130,000 subscribers to over 4 million now.
The repeal of Section 73 will also have the benefit of closing the loophole used by online service providers to stream PSB content. Such providers claim that the copyright exemption in Section 73 applies to retransmission via the internet. The Government rejects this claim and considers that such online services should not be able to transmit PSB content via the internet without any benefit flowing to the PSBs.
The Government’s overarching policy objective in repealing Section 73 is to do so at zero-net fees to PSBs and cable providers. This will be achieved in the context of the ‘must offer/ must carry’ regime found in Section 272 of the Communications Act 2003, which ensures that PSB content is universally available, and which requires PSBs to offer their core channels to cable and satellite providers, and that in return those same providers must carry them. Mutual benefits flow to PSBs and cable and satellite providers as a result of these arrangements.
However, the Government recognises that the repeal of Section 73 will mean that rights holders will be entitled to seek to monetise the value of underlying rights in cable retransmissions, something the exception has previously prevented from happening.