January 31, 2004

What is Broadcast Flag, and how does it work?

Broadcast flag is a form of digital rights management. The flag will impose significant strictures and constraints on the design of consumer-electronics and computer products -- limitations that will diminish interoperability between new products and old ones, and that even pose interoperability problems among new devices; and

The flag will limit what users can do with broadcast television content to a significantly greater degree than they are limited now.

The Federal Communications Commission's November 4, 2003 ruling, which says digital TV sets built after July 2005 will need to include an anti-piracy system called a broadcast flag, is meant to keep high-definition digital broadcasts from instantly becoming Internet bootlegs. Broadcast-flag technology works like this: Digital TV signals that are broadcast over the air, rather than transmitted via cable or satellite, will include an invisible data tag-the broadcast flag-along with the picture and sound. By FCC fiat, any digital TV tuner built after July 1, 2005, must refuse to allow broadcast-flagged programs to be recorded in such a way that they can be redistributed in their high-definition format. You'll be able to record Letterman tonight and watch him tomorrow but you won't be able to e-mail a copy to your friends. This sounds simple enough. But how does it affect SLA members?

How does it affect SLA’s members and the profession?

The Broadcast Flag will undermine the TEACH ACT

The “broadcast flag” was passed by Federal Communications Commission on November 4, 2003, and is intended to prevent the unauthorized retransmission of high definition digital television over the Internet. The proposal in its present form would have the unintended result of seriously undermining the Technology, Education and Copyright Harmonization (TEACH) Act passed by the 107^th Congress to facilitate distance education in the digital era.

The 1976 Copyright Act contained an exception that permitted the performance and display of certain kinds of copyrighted works for the purpose of distance education. Drafted when distance education largely occurred over closed circuit television, the exception was not broad enough to permit distance education over computer networks. For example, the display of a copyrighted work over the Internet necessarily requires the making of temporary copies, but the 1976 exception did not permit such copying. The 1976 exception also did not permit the reception of the educational material in the student’s home.

While Congress considered the Digital Millennium Copyright Act in 1998, the library and education community contended that the narrowness of the 1976 exception prevented distance educators from fully exploiting the benefits of the Internet and digital technology. Because of the importance of distance education to rural students and other under-served populations, Congress in the DMCA directed the Copyright Office to study the issue and make appropriate recommendations. After extensive consultations with the content industries and the library and education communities, the Copyright Office released a detailed report on distance education in 1999. The report concluded that the exception should be updated to permit distance education over the Internet, and set forth the parameters of a new exception. In March 2001, Senators Hatch and Leahy introduced a bill based on the Copyright Office’s recommendation. The introduction of the bill led to negotiations among the affected parties under the auspices of the Copyright Office, and they reached consensus. The legislation (the TEACH Act) was enacted and signed into law in 2002.

The TEACH Act sets forth conditions under which government bodies and accredited nonprofit educational institutions can use copyrighted works in distance education courses conducted over the Internet. The Act contains a variety of procedural safeguards to ensure that the interests of the copyright owners are not harmed. Unfortunately, the broadcast flag threatens to frustrate the operation of the TEACH Act. Under the TEACH ACT, an educator can include a clip of a television broadcast in distance education materials. For example, a course on criminal procedure could include a clip from Law and Order where the detectives conduct a search later claimed by the defendant to be unlawful. The broadcast flag, however, would prevent the educator from retransmitting that clip over the Internet. Contrary to the intent of Congress reflected in the TEACH Act, the broadcast flag will prevent the use of an entire category of works – high definition television programs – in distance education.

One solution to this problem is to include a professional equipment exception in any legislation or regulation implementing the broadcast flag. Under such an exception, a device that is designed, manufactured, marketed, and intended to be used by distance educators and other recording and broadcasting professionals in the ordinary course of lawful business would not have to comply with the flag. The Audio Home Recording Act contains example of such a professional equipment exception at 17 U.S.C. § 1001(3)(A).