Who asked for collective licensing to be extended?
Since the announcements last week I’ve been reading various government papers and legal articles about the IPO Consultation on Modernising Copyright. Among other things I’ve been looking for the logic behind ECL. While there is still confusion about orphan works and ECL, as far I can see there’s no explanation of who outside government asked for ECL and who will benefit.
The government says it intends:
…to make copyright licensing more efficient and remove unnecessary barriers to the legitimate use of works while preserving the interests of right holders. These include schemes to allow use of ‘orphan’ works whose copyright holder cannot be found or is unknown, voluntary extended collective licensing, and introducing minimum standards of conduct for collecting societies, underpinned by a backstop power to impose a statutory code of conduct on a collecting society where required.
Responses to the IPO Consultation haven’t been published in full so we can’t know what comments consumers or businesses made. If I had responded, my immediate concerns about access to copyright material would be these:
- The owners of copyright material are often slow to release products for which there is a clear demand. One example would be a proper remaster of Steely Dan’s back catalogue (2 sets of remasters have been issued but both are simply tweaks to the CD dupe masters rather than the original final master tapes).
- Regional encryption and localisation of DVDs locks up copyright material the owners choose not to distribute globally. In many cases Region 1 dubbing or subtitles exist and a UK (Region 2) release would appear straightforward. One anime title I would buy is only issued for Region 2 in an Italian version although there is a Region 1 localisation in English.
- Many copyright works are deleted. They remain in the repertoire of record companies, publishers and film studios but are no longer available for the public to buy and unavailable for other companies to sell.
- Over the years I have often wanted new material from recording artists who are simply frozen in record company contracts, unable to release new work and unable to escape their contracts to record elsewhere.
- Record labels manage catalogues badly. I have personally dealt with 2 cases where current record labels wrongly claimed ownership of masters from the late 1970s and early 1980s. These claims were simply based on a series of transfers of label rosters from one label to another with no reference to the underlying contracts. There must be many other acts in the same position and their work is generally unavailable.
So I can think of cases where copyright content would benefit from more enlightened exploitation but all these are covered by existing collective licensing. The weaknesses here are not the scope of collective licensing but the behaviour of rights owners, yet government proposals to liberate unavailable copyrights make no mention of them.
On the other hand I can’t think of a single real world case where copyright content outside existing collective licensing is unavailable—far from it. There are at least 3 mainstream channels that already facilitate the very thing the government is setting out to do:
- Every music act I know with copyrights outside collective licensing makes their material available through YouTube, Bandcamp or some other channel.
- Millions of tracks are available through music blogs. These are a mix of copyrights under collective license but also many others. I challenge anyone to find material for which there is any demand, that is not available on a music blog.
- As I mentioned before there are many Creative Commons copyrights available outside the collective licensing system.
As far as I can tell government is setting out to unlock material which is freely available while turning a blind eye to real problems with entirely different copyright owners.
So perhaps it is businesses that are after music copyrights outside the existing licensing system? If so you’d expect to find it at the top of this shopping list (pdf) drawn up by young web entrepreneurs: An Open Letter to EU Decision Makers from Neelie Kroes Young Advisors but they don’t mention it at all.
So, at the heart of government policy for modernising copyright—beside real world problems apparently unaddressed—we find a proposal for which there seems to be no known need. Perhaps the demand for ECL is completely outside the music industry, that’s possible. If anyone knows what it is I’d be very interested—ask around, let’s see if we can find out.