The Department for Culture, Media and Sport has published a consultation on the possibility of amending three areas of broadcasting regulations namely:

  • the “must offer/must carry” rules under the Communications Act 2003;
  • section 73 of the Copyright, Designs and Patents Act 1998 (“CDPA”); and
  • the Technical Platform Services rules.

This article will focus on Section 73 of CDPA, but for more details on the other areas of the consultation, please visit: https://www.gov.uk/government/consultations/the-balance-of-payments-between-television-platforms-and-public-service-broadcasters-consultation-paper

Section 73 of the CDPA was introduced in the by-gone era of analogue TV with the aim of supporting the development of the analogue cable infrastructure during the 1980s and 1990s. Section 73 provided that in certain circumstances the retransmission on cable of certain broadcasts was not an infringement of the copyright in the broadcast itself nor was it an infringement of the underlying copyright in any work included within the broadcast.

Put simply, cable operators were not having to pay copyright fees nor obtain consent from public service broadcasters (“PSBs”) for content retransmitted by cable; a winning position for cable operators.

Along came the digital television switchover in October 2012 and analogue became distant memory. Research by Ofcom showed that three-fifths of people now use the internet or ‘on-demand services’ to watch television programmes or films.

As a result of the digital revolution, much has changed now with the rapid development of multi-channel and digital TV on satellite, terrestrial and on IP platforms and also the massive increase in capacity supported by the cable networks. The Government now believes that Section 73 is outdated and the legislation needs to be brought into the digital landscape.

As an example, online providers are now freely showing broadcasts produced by PSBs relying on Section 73 to (i) avoid paying copyright fees and (ii) avoid seeking permission from either the broadcast owners or the underlying content copyright owners, in both cases arguing that Section 73 applies to retransmission via the internet. The Government’s view in this instance is that Section 73 does not apply to content transmitted over the internet.

The Government is therefore committed to the removal of Section 73 and to legislate on this effect at the earliest opportunity. The consultation seeks views on potential implications; in particular how the removal of Section 73 will impact the other policy options (mentioned at the beginning of this article) and what, if any, transitional arrangements should be considered. Please follow the link above to review the consultation process.