How might ECL change the copyright licensing system?
The principle of copyright in WIPO countries is that creators own the rights to their creations. This inherent right is immediate and requires no further action by the creator.
For 10 years I have advised musicians and composers about the complexities of the music industry on that basis. Don’t panic, you own your stuff and until you decide nothing can legally happen to your work unless you say so.
Now it can.
The government calls this extending collective licensing. Collective licensing is the traditional system whereby PPL, MCPS and PRS operate blanket licenses on behalf of their members. The extension proposed by the government allows collection societies to license non-members’ material without them joining.
That’s the opposite of what we have right now. The current situation is simple, there are 3 categories of content: public domain, rights administered by societies and rights held by individuals.
Collection societies have membership conditions new rights holders sometimes find hard to satisfy. Membership of a collection society is not a given. That is the opposite of what is proposed—the whole system will be turned upside down. Details of government safeguards and other measures intended to make the system work even better than it used to are being published in stages. PPL and PRS are apparently interested in ECL.
My experience of big government projects suggests this may not turn out as hoped. We are told these changes are in the interest of consumers but the only group I see calling for them is Internet commerce—Google and their friends in the free content lobby. That fuels my scepticism. The whole basis of this change is that a substantial body of works whose rights owners are not members should be made available to consumers. Another way to look at it is that Internet commerce wants to enforce a license on otherwise unavailable content.
Changes 1: public domain, opt-ins and opt-outs
Instead of 3 simple categories the system must accommodate more.
Firstly, existing categories probably need some attention.
As things stand there are various catalogues of public domain works but no central record. Some of these have been reintroduced to publishing as traditional arrangements (see Alan Price and House Of The Rising Sun). A world where all works have a defined status—previously only society members’ works did—means public domain works must be identifiable otherwise they are liable to be hoovered up by an ECL.
Society members are covered but even they need to keep an eye out. Many of them have work on public media sites, sometimes attached to non-members videos for example. There is nothing, other than vigilance, to stop these being appropriated by a new ECL society seeking legal repertoire for their clients—the web content lobby.
Secondly, creators who previously controlled their rights by default need to be codified.
Non-members who make their work available to unlicensed Internet sites, rights owners who simply don’t want to join PPL or PRS and others will now need to opt out. Maybe even members of foreign societies who are not members of PPL or PRS (but have royalties collected through them) may need to opt out. All these rights owners must now be identified and in future—how can it work otherwise?—everything they create must be registered by them as out-of-bounds to ECL.
If not they are liable to be badgered repeatedly by an ECL society that wants their work, or even worse keep having to retrieve it from default licensing.
Creative Commons etc.
Creative Commons is often seen as “anti-copyright” but it isn’t, it’s just another set of copyright licenses. To my knowledge none of the CC licenses fit with collection society licensing, so it’s fair to say thousands of CC owners will want to opt out. If not, their rights as non-members are liable to be expropriated by a new ECL society.
Social media and new creators
Many commercially viable works today are created by non-members and people who never considered themselves artists. A viral video for example can earn millions for a non-member on YouTube. They may not be a musician, lyricist or recording rights savvy but their work can be managed and monetised by Google adverts without any PPL or PRS interest. Such work—and the work of thousands of non-viral non-members—might be a prime target for a new ECL. Again, people who never even heard of membership may need to opt out in order to choose the best licensing vehicle for their works, or none. Otherwise they risk being corralled into a default ECL regime which may be equivalent to membership yet worse than non-membership.
Originally orphan works and ECL seemed to overlap, and they still do. The latest but not yet final position is there will be a register of non-exclusive orphan work rights and these will be distinct from non-members works. I look forward to seeing how that is done.
Changes 2: identifying rights owners and their works
Under the existing system only members—opt-ins—need to be identified and it is up to collection societies to track their works. The music industry was slowly moving towards a comprehensive global system of CAE, ISWC and ISRC identifiers. The transcription of paper records has inevitably introduced errors into rights databases and although the system is faulty it works after a fashion.
The new system must identify these new classes of rights holders and their works. I don’t see how this system can function unless their status is formally recorded. That isn’t necessary at the moment.
Consider an example: an extended collective licensing body picks up a YouTube video. There are many possible rights holders (video, composers, phono masters, performers, designers, etc.) but they have no known identifiers. The YouTube poster has a username but that isn’t permanent or controlled and may have no connection to the rights owners. Likewise the work(s) title(s) may be ambiguous, unknown or just wrong. Google’s Content-ID system may identify the work but that system has identified non-music videos as music copyrights so it’s not reliable. The extended collective licensing body must track all these variables and, should the rights owners come forward, assign them and any income to the proper identifiers with their societies or private owners. And that is a very simple example.
There are proposals underway for a Digital Copyright Exchange but we don’t know what it will look like. It could be a new database of hashed or fingerprinted works meta-data tied to standard identifiers. That would be useful but the last I heard it would not be a stand-alone system, rather a network of existing society databases which makes it unlikely to deliver the new requirements.
Will regulators ensure creators are safeguarded or will they nod through a system that implements the will of the government just to get the job done? I think we can reflect on past performance of government as a yardstick.