Let me say a few words about why we decided to focus on collective management of copyright for our symposium this year. Collective licensing and collective management have long been part of the U.S. copyright landscape. In particular, the performing rights organizations, ASCAP, BMI and SESAC,1 license performing rights in music, and almost all composers and music publishers belong to one of those organizations. There are, of course, later-developed collective management organizations in the United States. One notable one is Copyright Clearance Center (“CCC”), which was developed after the 1976 Copyright Act, largely to license photocopying of textual materials. But the world has changed since then, and the scope of CCC licenses has expanded to meet the demand for audiovisual and digital forms as well. Still, outside the field of music, collective management organizations are not as prominent or as widely adhered to in the United States as they are elsewhere in Europe and around the world.
Volume 34, No. 4, Symposium: Collective Management of Copyright: Solution or Sacrifice?
Panel: Blanket Licensing and Beyond
abstract
PDFQuestion and Answer
Alternatives to Collective Management: DRMs and Other Business/Technology Options
Scott Martin
abstract
PDFOne of the things that film studios are hearing with increasing frequency is the suggestion that compulsory licenses are a solution to piracy. Those of us at film studios have a lot of concerns about that. The argument we are hearing is basically: “You can’t beat it, so you join it—legalize piracy and then tax it.”
A Digital Public Library of America?: Collective Management’s Implications for Privacy, Private Use and Fair Use
John Palfrey
abstract
PDFThe purpose of this essay is to examine collective licensing operations, with particular emphasis on some of the consequences for privacy, private use and fair use. I examine these issues in the context of a specific idea that might draw, at least in part, on a collective management approach: an emergent proposal to create a Digital Public Library of America (“DPLA”), which I think is an important undertaking.
Peer-to-Peer File Sharing and Copyright: What Could Be the Role of Collective Management?
Séverine Dusollier and Caroline Colin
abstract
PDFWhether originating from copyright scholarship or from legislative discussion, proposals to authorize the transfer of copyrighted works through peer-to-peer (“P2P”) networks have been abundant in the last ten years as an alternative to seemingly difficult to enforce and unsuccessful repression-based solutions. As Neil Netanel described it: P2P controversy is a story of the copyright industries’ increasingly brazen— some say desperate—attempts to shut down P2P file-swapping networks, disable P2P technology and shift the costs of control onto third parties,
including telecommunications companies, consumer electronics manufacturers, corporate employers, universities, new media entrepreneurs and the taxpayers.
New Licensing Models for Online Music Services in the European Union: From Collective to Customized Management
Giuseppe Mazziotti
abstract
PDFA few years after the enactment and the implementation in the Member States of the European Union of the most comprehensive directive for the harmonization of national copyright laws in the so-called “Information Society”, the European Commission started reviewing how copyright and related rights were being commercially exploited in the digital environment.
Unsurprisingly, in 2005 the Commission eventually realized that copyright management gave rise to licensing practices that segmented the so-called “Internal Market” on a strictly in-territorial basis, in spite of the borderless nature of Webbased environments. From then onwards, the Commission has been in search of solutions to tackle economic inefficiencies stemming from territorial restrictions in copyright management and to eventually boost the growth of legitimate online content services, starting with music services.
Panel: Collective Licensing for Digitizing Analog Materials
abstract
PDFQuestion and Answer
If Mass Digitization Is the Problem, Is Legislation the Solution? Some Practical Considerations Related to Copyright
Lois F. Wasoff
abstract
PDFCopyright law is intended to be “technology neutral.” Despite that, technological development is clearly putting pressure on certain aspects of copyright. Readily available technological tools make digital copying and distribution simple and seamless. This can make the legal “obstacles” to the full use of those tools resulting from the need to comply with copyright seem inconvenient and archaic. In particular, the issues arising in connection with mass digitization projects, where compliance can require identifying and locating large numbers of copyright owners and seeking appropriate permissions, are complicated. We hear often about the potential benefits that could be derived from mass digitization projects; we hear less often about some of the risks they may
create. But the widespread interest in facilitating such projects, at least for certain purposes, is clear. Collective licensing schemes may be one way to accomplish that; targeted exceptions to copyright may be another. Either may require making changes to current copyright law.
Legislative Alternatives to the Google Book Settlement
Pamela Samuelson
abstract
PDFThe audacity of the Google Book Search (“GBS”) initiative, under which Google has scanned millions of in-copyright books from the collections of major research libraries in order to index their contents and serve up snippets in response to search queries, was surpassed only by the audacity of the proposed settlement of the class action lawsuit that challenged this scanning. Approval of the settlement would, among other things, have given Google the right to commercialize virtually every out-of-print book in the corpus (unless rights holders came forward to say no).
The Book Rights Registry in the Google Book Settlement
Jonathan Band
abstract
PDFCopyright law poses a significant challenge to any effort to create a comprehensive digital database of published books. Approximately eighty percent of these millions of titles are still under copyright. The tremendous amount of time, transaction costs and uncertainty relating to clearing the rights to so many works is overwhelming.
Panel: Challenges for Collective Licensing Organizations
abstract
PDFQuestion and Answer Session
Cross-Border Issues in Collective Management
Adriana Moscoso
abstract
PDFI was an LLM student here a few years ago, so I am very happy to be back here today. I want to thank Professor Ginsburg for giving me this opportunity and I also want to thank the team from the Kernochan Center for its support. They have invited me to come and talk about cross-border licensing issues in Europe. I do not know how familiar everyone is with all of the things that have been going on in the last ten years in Europe concerning this issue. So, I am going to go through the steps that we have undertaken. At the end, I would like to share with you my ideas about what the future of collective management for online works should be, in Europe and worldwide.
Competition and the Collective Management of Copyright
C. Scott Hemphill
abstract
PDFDiscussions of the collective management of copyright tend to celebrate their subject. Much of the work collected in this volume focuses upon the significant economic value created by collective management organizations (“CMOs”), as well as the practical difficulties presented by any realistic effort to unlock that value. I have been assigned a different role to play. My task is to explain one downside of CMOs, namely the risk they pose to competition, and hence the limitations that antitrust law places upon their activities. These limits are familiar to many symposium participants. After all, two of the leading CMOs in the United States, ASCAP and BMI, have operated under an antitrust consent decree for the past sixty years.
A Performing Rights Organization Perspective: The Challenges of Enforcement in the Digital Environment
Joan M. McGivern
abstract
PDFThis Article focuses on some of the practical challenges that the American Society of Composers, Authors and Publishers (“ASCAP”) faces in its day to day business efforts to license the public performing right in copyrighted musical works in the digital age under its antitrust consent decree. In looking to the practical, this Article affirmatively does not delve into the development and use of the United States’ antitrust laws in setting fees for the public performance of the music in ASCAP’s repertory. In addition, the author notes that the comments made herein are necessarily constrained by having to navigate between the Scylla and Charybdis of ASCAP’s many pending court proceedings, negotiations and restrictions of protective orders. Nonetheless, while being mindful of these limitations, there is still much to say, from a practical perspective, beginning with: what does it mean to apply for an ASCAP license under ASCAP’s consent decree?
The Practical Difficulties of Implementing Collective Management Schemes
Tracey L. Armstrong
abstract
PDFCopyright Clearance Center (“CCC”) has been actively engaged in a variety of collective licensing models in the text publishing industry since it opened its doors on the effective date of the Copyright Act of 1976. The practical difficulties of collective licensing and collective management are legion; CCC has experience with many of them and has managed to avoid many others. This Paper is intended to address only a few in order to provide some context for today’s conference.
Photographers and Collective Licensing: A Short History with No Ending
Eugene Mopsik
abstract
PDFIn the early 1990s, the American Society of Media Photographers (“ASMP”) explored the possibility of a collective licensing solution to help manage the myriad uses of photography that were being created by a new means of digital distribution: the Internet. The entity was called the Media Photographers Copyright Agency (“MPCA”). Photographers were not ready for it, stock agencies were afraid of it and funding was scarce. It failed.
Keynote: The Landscape of Collective Management Schemes
Daniel Gervais
abstract
PDFThe title for this address, suggested by Jane Ginsburg and June Besek, prompted me to take a fresh look at the rules of landscape composition. I found six major ones. The first five rules are as follows: (a) group your subjects of importance within a center of interest; (b) avoid straight lines; (c) allow the viewer to interact and become a participant; (d) make good use of contrast; and (e) add some drama and avoid kissing the edges. I can promise you two of those five, namely that we will interact later, and that I will not be kissing any edges this morning. Unfortunately, I cannot promise drama. As to the center of interest and avoidance of straight lines, let us see what we can do. The last rule is to put striking features in the foreground set against a solid background. That I think I can deliver. Let us start with the background. I will use a realist technique for this part of my talk.
The European “Extended Collective Licensing” Model
Alain Strowel
abstract
PDFThank you for the invitation. It is a pleasure for me to speak on the topic of extended collective licenses (“ECL”), a model for managing copyright which is typical for Scandinavian countries. Although my Danish is a bit rusty—not to speak of my Swedish—I come from Belgium, a country which is neither a Nordic nor a Southern European country, but which at least has a strong experience with collective bargaining. It is difficult to understand the model of ECLs without the background of collective bargaining (in a country like the United States, private agreements rather than collective bargaining do play a prominent role). Belgian culture in the field of industrial relations is one in which labor issues are solved with collective agreements; this is possible because of the existence of very strong organizations representing employers and employees and the possibility for the collective agreements concluded between those organizations to be extended by law to third parties. The ECL model relies on the willingness and experience of parties to engage in collective bargaining.