A Simple Suggestion for Copyright Policymakers

This simple suggestion is offered to copyright policymakers around the world.

Copyright economies are complex. So complex that your most carefully designed reforms are likely to have consequences you could not foresee, and may even damage the sectors or people you intended to help. But this does not mean that policymakers are powerless to effect changes that have, over time, a strong positive influence on the creators and businesses that rely on the regulation and oversight of copyright markets.

One area of copyright regulation suffers none of these uncertainties, however, and has an important additional benefit. That area is the shared technical standards by which copyrights are identified and traded. Improvements and regulation there makes future copyright market reform much less controversial by creating a platform of reliable market information on which new proposals can be designed and measured. Get the shared technical standards right and new copyright laws can be future-proofed.

Technical standards help markets by identifying the rights that are being offered and traded, the works in which they are embodied, and the interested parties. They offer tools for efficient and reliable exchange of data about deals and terms, and used honestly they create trust by making copyright industries transparent and auditable. For such a technology driven sector the copyright industries have been surprisingly patchy and slow to adopt electronic trading systems. It’s clear that they need help.

Policymakers do not need to employ teams of experts to design systems, nor attempt to impose technology on the market. Instead, like they do in many other areas of life, their role is to set minimum standards and ensure compliance. Standards will help industry cope with the massive increase in opportunities brought about by digital technology without resorting to radical interventions such as compulsory collective licensing.

Let’s look at how this would work in practice. Take as an example a web site that allows people to upload music tracks and offer them for listening or downloading. In addition to the usual terms and conditions the site would add a requirement that each copyright is identified under an approved scheme, and that uploaders identify themselves. The site would keep proper records of who uploaded what, and would in return get the assurance that they were in compliance with copyright law. Anonymous and unidentified services would not be affected, but could not continue to rely on click-through warrants to provide legal safe-harbours.

Any business that takes assignments, licences, or buys copyrights for onward sale or licensing would be subject to the same requirements. A robust regulatory framework will assume an unbroken chain from each creator to each user of each copyright, and will make that chain accessible on demand to each interested party.┬áTaking this approach will join up today’s jigsaw of data, and will find all the missing pieces, defending creators and users from unwitting infringement or wilful copyright blindness.

This simple suggestion is offered as a least bad choice for policymakers, who are rightly cautious about interfering in the complexities of copyright markets. It avoids completely such vexed issues as extended collective licensing, instead making it clear to all users which copyrights should be considered ‘in the market’ and which remain outside. As a private person perhaps sharing photos with family and friends you would remain unaffected and with your copyright intact; to enter the market you would simply ensure that you and your work become clearly identified.

Many copyrights today are hidden behind layers of assignments and locked in private databases. This is an impediment to trade, as well as making enforcement against counterfeiting and infringement much more difficult. Policymakers should choose to set the rules for the market and let industry do the rest.

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