Audio data, visual data, and broadcast flags
In their attempts to make it harder for viewers to infringe the copyright of television programmes, certain digital television companies attach a flag, known as a broadcast flag, along with the audio-visual data of the digital television programme. The flag may contain instructions for the data-handling equipment to curtail on the user’s freedoms concerning taping down and copying the programme—that a programme to which a broadcast flag was attached can be taped down, but cannot be transferred to another terminal, for example.
In the US, the FCC made it compulsory for all equipment that can receive digital television content that is retailed after July 2005 to be able to recognise a broadcast flag. The equipment is then supposed to restrict the viewer’s freedom to tape down and copy television programmes accordingly. Sale and distribution of equipment which does not comply to the regulations would be unlawful after July 2005.
The FCC ruling was made ineffective by a federal court on 6 May 2005. In its ruling, the federal court stated that the FCC has overstepped its authority, but it is possible for a higher court to overrule the federal court in time to come. The US Congress is also able to step in to give FCC the power to implement its broadcast flag ruling.Back to top
Some criticisms have surfaced
To start with, critics point out that the implementation of broadcast flags may also compromise a viewer’s fair use and consumer rights. For example, as covered in Copyright and DCI, the Fair Use doctrine allows users to copy a small part of copyrighted material for the purposes of private research or study, but users would not be entitled to this right with the implementation of broadcast flags.
The broadcast flag scheme would also have important ramifications on the open source movement. This is as users are supposed to be able to freely modify all open source programs. Demodulators that can be easily modified to disregard broadcast flags are disallowed by the FCC ruling. This means that open source demodulators are disallowed under FCC’s broadcast flag scheme.
If effected, the broadcast flag ruling would have reduced the compatibility between new equipment and old ones. With broadcast flags, digital television programmes would have to be taped down in another format that is not compatible with older formats (that is, not backward compatible). Thus, programmes taped down with newer devices (those sold in 2006 and beyond) cannot be played using older DVD players.
To end off, advocacy group Public Knowledge also claims, “nothing in [the Communications Act of 1934 and its amendments] permits the FCC to a) impose broad product design mandates on consumer electronics devices and computers and b) adopt what is, for all intents and purposes, copyright policy”. (The Communications Act sets down laws regarding the issues that FCC has the authority to regulate.)