When I heard yesterday that Richard Hooper had been appointed to run a feasibility study for the proposed Digital Copyright Exchange, I was optimistic that finally someone in authority would bite this poisoned bullet and wreak change on the stifled copyright industries. Regrettably, on examining the Feasibility Study document, I see little basis for maintaining that optimism. There is an urgent need for a shake-up of copyight licencing in the EU, but sadly this study is unlikely to carry the weight necessary to get it past the mighty copyright industries.
The Feasibility Study document attempts its own definition of copyright, but unfortunately it conflates ownership of economic rights with authorship – two different legal concepts (the French would go mad, mon dieu, le droit d’auteur!) .
Similarly, it mixes authors with distribution channels. ‘Market A’ comprises Getty Images, Universal Music and Apple iTunes, and JK Rowling.
What the study is trying to do is to create definable markets for copyright, in order to investigate the transaction/volume relationships. But in failing to understand the true nature of copyright it just falls over.
It muddles collecting societies with rights-managers, and misses the more subtle complexities of copyright:
Rights owners […]in the book publishing industry [are] the author, the illustrator or in the case of non-fiction often the publisher.
Sure, some non-fiction books are commissioned by the publisher, who would retain (own) all rights to the content - Dorling Kindersley is a good example of this. Others are written by the author and published by a third-party in the usual way - if publishing in the UK, the author will generally retain the overall copyright, but will transfer certain rights to the publisher. These rights may include electronic rights as well as print, and to all intents and purposes the publisher becomes the rights-holder.
The study appears to mix media types with formats, as in the following list. I am sure there are plenty of people in the music industry who can put them right on it.
Copyright licensing involves nine major media types:
1. Music and audio
5. Still pictures
6. Moving pictures
7. Computer games
8. Mixed media (content that contains moving pictures, text and still pictures, e.g. a newspaper website)
9. Cross-media (the same digital content being licensed on different platforms, for example cable television and Smartphones)
Finally, there is the rather, in my opinion, rather simplistic hypothesis: “Copyright licensing, involving rights owners, rights managers, rights users and end users across the different media types, in the three defined copyright markets, is not fit for purpose for the digital age.”
This is not the first time that someone has tried to develop a rights-exchange. It is a complex process which requires an in-depth understanding of copyright and the industries who use it. Defining why copyright is unfit, and redefining it, will require much more work than a management consultancy box-drawing exercise.
Digital Copyright Exchange Feasibility Study – call for evidence issued on 4 January. Deadline 10 February.
Chapter 6 of my book The Copyright Enforcement Enigma - Internet politics and the Telecoms Package addresses some of the issues in terms of EU copyright policy, the collecting societies and lobbying. It is based on research which I carried out before I decided to concentrate on enforcement, and which I have never published.
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