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[homepage.git] / blog / data / 2015-07-07-mpegla.txt

Title: MPEG LA on "Internet Broadcast AVC Video" licensing and non-private use
Tags: english, video, opphavsrett, multimedia, web, standard, h264
Date: 2015-07-07 09:50

<p>After asking the Norwegian Broadcasting Company (NRK)
<a href="http://people.skolelinux.org/pere/blog/Hva_gj_r_at_NRK_kan_distribuere_H_264_video_uten_patentavtale_med_MPEG_LA_.html">why
they can broadcast and stream H.264 video without an agreement with
the MPEG LA</a>, I was wiser, but still confused.  So I asked MPEG LA
if their understanding matched that of NRK.  As far as I can tell, it
does not.</p>

<p>I started by asking for more information about the various
licensing classes and what exactly is covered by the "Internet
Broadcast AVC Video" class that NRK pointed me at to explain why NRK
did not need a license for streaming H.264 video:

<p><blockquote>

<p>According to
<a href="http://www.mpegla.com/Lists/MPEG%20LA%20News%20List/Attachments/226/n-10-02-02.pdf">a
MPEG LA press release dated 2010-02-02</a>, there is no charge when
using MPEG AVC/H.264 according to the terms of "Internet Broadcast AVC
Video".  I am trying to understand exactly what the terms of "Internet
Broadcast AVC Video" is, and wondered if you could help me.  What
exactly is covered by these terms, and what is not?</p>

<p>The only source of more information I have been able to find is a
PDF named
<a href="http://www.mpegla.com/main/programs/avc/Documents/avcweb.pdf">AVC
Patent Portfolio License Briefing</a>, which states this about the
fees:</p>

<ul>
 <li>Where End User pays for AVC Video
  <ul>
   <li>Subscription (not limited by title) – 100,000 or fewer
     subscribers/yr = no royalty; &gt; 100,000 to 250,000 subscribers/yr =
     $25,000; &gt;250,000 to 500,000 subscribers/yr = $50,000; &gt;500,000 to
     1M subscribers/yr = $75,000; &gt;1M subscribers/yr = $100,000</li>

   <li>Title-by-Title - 12 minutes or less = no royalty; &gt;12 minutes in
     length = lower of (a) 2% or (b) $0.02 per title</li>
  </ul></li>

 <li>Where remuneration is from other sources
  <ul>
   <li>Free Television - (a) one-time $2,500 per transmission encoder or
     (b) annual fee starting at $2,500 for &gt; 100,000 HH rising to
     maximum $10,000 for &gt;1,000,000 HH</li>

   <li>Internet Broadcast AVC Video (not title-by-title, not subscription)
     – no royalty for life of the AVC Patent Portfolio License</li>
  </ul></li>
</ul>

<p>Am I correct in assuming that the four categories listed is the
categories used when selecting licensing terms, and that "Internet
Broadcast AVC Video" is the category for things that do not fall into
one of the other three categories?  Can you point me to a good source
explaining what is ment by "title-by-title" and "Free Television" in
the license terms for AVC/H.264?</p>

<p>Will a web service providing H.264 encoded video content in a
"video on demand" fashing similar to Youtube and Vimeo, where no
subscription is required and no payment is required from end users to
get access to the videos, fall under the terms of the "Internet
Broadcast AVC Video", ie no royalty for life of the AVC Patent
Portfolio license?  Does it matter if some users are subscribed to get
access to personalized services?</p>

<p>Note, this request and all answers will be published on the
Internet.</p>
</blockquote></p>

<p>The answer came quickly from Benjamin J. Myers, Licensing Associate
with the MPEG LA:</p>

<p><blockquote>
<p>Thank you for your message and for your interest in MPEG LA.  We
appreciate hearing from you and I will be happy to assist you.</p>

<p>As you are aware, MPEG LA offers our AVC Patent Portfolio License
which provides coverage under patents that are essential for use of
the AVC/H.264 Standard (MPEG-4 Part 10).  Specifically, coverage is
provided for end products and video content that make use of AVC/H.264
technology.  Accordingly, the party offering such end products and
video to End Users concludes the AVC License and is responsible for
paying the applicable royalties.</p>

<p>Regarding Internet Broadcast AVC Video, the AVC License generally
defines such content to be video that is distributed to End Users over
the Internet free-of-charge.  Therefore, if a party offers a service
which allows users to upload AVC/H.264 video to its website, and such
AVC Video is delivered to End Users for free, then such video would
receive coverage under the sublicense for Internet Broadcast AVC
Video, which is not subject to any royalties for the life of the AVC
License.  This would also apply in the scenario where a user creates a
free online account in order to receive a customized offering of free
AVC Video content.  In other words, as long as the End User is given
access to or views AVC Video content at no cost to the End User, then
no royalties would be payable under our AVC License.</p>

<p>On the other hand, if End Users pay for access to AVC Video for a
specific period of time (e.g., one month, one year, etc.), then such
video would constitute Subscription AVC Video.  In cases where AVC
Video is delivered to End Users on a pay-per-view basis, then such
content would constitute Title-by-Title AVC Video.  If a party offers
Subscription or Title-by-Title AVC Video to End Users, then they would
be responsible for paying the applicable royalties you noted below.</p>

<p>Finally, in the case where AVC Video is distributed for free
through an "over-the-air, satellite and/or cable transmission", then
such content would constitute Free Television AVC Video and would be
subject to the applicable royalties.</p>

<p>For your reference, I have attached
<a href="http://people.skolelinux.org/pere/blog/images/2015-07-07-mpegla.pdf">a
.pdf copy of the AVC License</a>. You will find the relevant
sublicense information regarding AVC Video in Sections 2.2 through
2.5, and the corresponding royalties in Section 3.1.2 through 3.1.4.
You will also find the definitions of Title-by-Title AVC Video,
Subscription AVC Video, Free Television AVC Video, and Internet
Broadcast AVC Video in Section 1 of the License.  Please note that the
electronic copy is provided for informational purposes only and cannot
be used for execution.</p>

<p>I hope the above information is helpful.  If you have additional
questions or need further assistance with the AVC License, please feel
free to contact me directly.</p>
</blockquote></p>

<p>Having a fresh copy of the license text was useful, and knowing
that the definition of Title-by-Title required payment per title made
me aware that my earlier understanding of that phrase had been wrong.
But I still had a few questions:</p>

<p><blockquote>
<p>I have a small followup question.  Would it be possible for me to get
a license with MPEG LA even if there are no royalties to be paid?  The
reason I ask, is that some video related products have a copyright
clause limiting their use without a license with MPEG LA.  The clauses
typically look similar to this:

<p><blockquote>
  This product is licensed under the AVC patent portfolio license for
  the personal and non-commercial use of a consumer to (a) encode
  video in compliance with the AVC standard ("AVC video") and/or (b)
  decode AVC video that was encoded by a consumer engaged in a
  personal and non-commercial activity and/or AVC video that was
  obtained from a video provider licensed to provide AVC video. No
  license is granted or shall be implied for any other use. additional
  information may be obtained from MPEG LA L.L.C.
</blockquote></p>

<p>It is unclear to me if this clause mean that I need to enter into
an agreement with MPEG LA to use the product in question, even if
there are no royalties to be paid to MPEG LA.  I suspect it will
differ depending on the jurisdiction, and mine is Norway.  What is
MPEG LAs view on this?</p>
</blockquote></p>

<p>According to the answer, MPEG LA believe those using such tools for
non-personal or commercial use need a license with them:</p>

<p><blockquote>

<p>With regard to the Notice to Customers, I would like to begin by
clarifying that the Notice from Section 7.1 of the AVC License
reads:</p>

<p>THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR
THE PERSONAL USE OF A CONSUMER OR OTHER USES IN WHICH IT DOES NOT
RECEIVE REMUNERATION TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC
STANDARD ("AVC VIDEO") AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED
BY A CONSUMER ENGAGED IN A PERSONAL ACTIVITY AND/OR WAS OBTAINED FROM
A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. NO LICENSE IS GRANTED
OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE
OBTAINED FROM MPEG LA, L.L.C. SEE HTTP://WWW.MPEGLA.COM</p>

<p>The Notice to Customers is intended to inform End Users of the
personal usage rights (for example, to watch video content) included
with the product they purchased, and to encourage any party using the
product for commercial purposes to contact MPEG LA in order to become
licensed for such use (for example, when they use an AVC Product to
deliver Title-by-Title, Subscription, Free Television or Internet
Broadcast AVC Video to End Users, or to re-Sell a third party's AVC
Product as their own branded AVC Product).</p>

<p>Therefore, if a party is to be licensed for its use of an AVC
Product to Sell AVC Video on a Title-by-Title, Subscription, Free
Television or Internet Broadcast basis, that party would need to
conclude the AVC License, even in the case where no royalties were
payable under the License.  On the other hand, if that party (either a
Consumer or business customer) simply uses an AVC Product for their
own internal purposes and not for the commercial purposes referenced
above, then such use would be included in the royalty paid for the AVC
Products by the licensed supplier.</p>

<p>Finally, I note that our AVC License provides worldwide coverage in
countries that have AVC Patent Portfolio Patents, including
Norway.</p>

<p>I hope this clarification is helpful.  If I may be of any further
assistance, just let me know.</p>
</blockquote></p>

<p>The mentioning of Norwegian patents made me a bit confused, so I
asked for more information:</p>

<p><blockquote>

<p>But one minor question at the end.  If I understand you correctly,
you state in the quote above that there are patents in the AVC Patent
Portfolio that are valid in Norway.  This make me believe I read the
list available from &lt;URL:
<a href="http://www.mpegla.com/main/programs/AVC/Pages/PatentList.aspx">http://www.mpegla.com/main/programs/AVC/Pages/PatentList.aspx</a>
&gt; incorrectly, as I believed the "NO" prefix in front of patents
were Norwegian patents, and the only one I could find under Mitsubishi
Electric Corporation expired in 2012.  Which patents are you referring
to that are relevant for Norway?</p>

</blockquote></p>

<p>Again, the quick answer explained how to read the list of patents
in that list:</p>

<p><blockquote>

<p>Your understanding is correct that the last AVC Patent Portfolio
Patent in Norway expired on 21 October 2012.  Therefore, where AVC
Video is both made and Sold in Norway after that date, then no
royalties would be payable for such AVC Video under the AVC License.
With that said, our AVC License provides historic coverage for AVC
Products and AVC Video that may have been manufactured or Sold before
the last Norwegian AVC patent expired.  I would also like to clarify
that coverage is provided for the country of manufacture and the
country of Sale that has active AVC Patent Portfolio Patents.</p>

<p>Therefore, if a party offers AVC Products or AVC Video for Sale in
a country with active AVC Patent Portfolio Patents (for example,
Sweden, Denmark, Finland, etc.), then that party would still need
coverage under the AVC License even if such products or video are
initially made in a country without active AVC Patent Portfolio
Patents (for example, Norway).  Similarly, a party would need to
conclude the AVC License if they make AVC Products or AVC Video in a
country with active AVC Patent Portfolio Patents, but eventually Sell
such AVC Products or AVC Video in a country without active AVC Patent
Portfolio Patents.</p>
</blockquote></p>

<p>As far as I understand it, MPEG LA believe anyone using Adobe
Premiere and other video related software with a H.264 distribution
license need a license agreement with MPEG LA to use such tools for
anything non-private or commercial, while it is OK to set up a
Youtube-like service as long as no-one pays to get access to the
content.  I still have no clear idea how this applies to Norway, where
none of the patents MPEG LA is licensing are valid.  Will the
copyright terms take precedence or can those terms be ignored because
the patents are not valid in Norway?</p>