Communications' Copyright Policy

Intellectual Property and Copyright and Trademark

Article Snapshot


Molly S. Van Houweling


Journal of Telecommunications and High Technology Law, Vol. 4, pp. 97-122, 2005


The author argues that the FCC may be in the best position to regulate TPMs to further wise copyright policy-making.

Policy Relevance

Although the FCC’s Broadcast Order Regulation was a failure, it indicated that the FCC does have the capability to play an important role in TPM policies, which matters the most when market forces fail to protect copyrights.

Main Points

  • Technological Protection Measures (TPMs) are designed to keep unauthorized users from using copyrighted creative works. They have been one of the most controversial areas of copyright law in the last ten years.
  • The Federal Communications Commission (FCC) attempted to regulate with TPMs in its Broadcast Flag Order in 2003, which was ultimately held to be outside the FCC’s jurisdiction.
  • Regulation of TPMs is necessary in some contexts to implement a balanced copyright policy. TPMs can be “ex ante” fixes to copyright problems, but may also over-constrain copyright by not allowing “fair uses.”
  • The Broadcast Flag Order was an attempt by the FCC to protect digital television from being indiscriminately copied and distributed, which is an admirable goal when market forces are not sufficient to provide adequate protection for the aims of copyright policy.
  • The FCC has the experience and capacity to assess electronic equipment on an ongoing basis in addition to the substantive experience with copyright policy to regulate in this context.
  • Moreover, the FCC has had a historical role in encouraging diversity and production of programming, essentially the same goals as copyright policy.
  • Even though the FCC failed with the Broadcast Flag Order, it is still in the best position to regulate TPMs and that regulation may be necessary when market forces are not enough to protect consumers and copyright policies.

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