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Abstract
This paper investigates the threats and opportunities posed by the possibility of a Digital Copyright Exchange (DCE). On the one hand, an exchange could be implemented as a way of replacing traditional distributors such as publishers. On the other hand, it could strengthen certain publishers by making licensing of content the normal method of distribution. An exchange may, therefore, be accurately described as a facilitator of change. The Hooper Feasibility Studies of 2012 have posed a number of possible formulations of the Exchange, but it is suggested that those studies have not realised the broader implications of their proposals upon the central tenets of the copyright balancing exercise. This paper outlines possible consequences and suggests that a broader consideration of the implications should be adopted in future.
Notes
Hargreaves, I. 2011. Digital opportunity: a review of intellectual property and growth, 3, Chapter 4. London: IPO.
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study. London: IPO.
Hooper, R., Lynch, R. 2012. Copyright works: streamlining copyright licensing for the digital age. London: IPO.
http://www.ipo.gov.uk/types/hargreaves/hargreaves-copyright/hargreaves-copyright-dce/hargreaves-copyright-dce-terms.htm (accessed 12 June 2012).
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study supra 2, p. 20.
For details see Feather, J. 1988. Authors, publishers and politicians: the history of copyright and the book trade. European Intellectual Property Review 10: 377; Deazley, R. 2003. Re-reading Donaldson. European Intellectual Property Review 25: 270; Deazley, R. 2006. Rethinking copyright: history, theory, language. Oxford: Edward Elgar; Deazley, R. 2004. On the origin of the right to copy. Oxford: Hart Publishing.
An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned, 1710, 8 Anne, c.19.
Historically – see Kaplan, B. 1966. An unhurried view of copyright, 8–9. New York: Colombia University Press. For instance, books, films and music are still heavily reliant on distributors: see Fisher, W. 2004. Promises to keep, Chapter 2. Stanford: Stanford Law and Politics.
Consumer Focus. 2010. Time to change the tune. London: Consumer Focus. Gowers, A. 2006. Gowers review of intellectual property, 3.29. London: HMSO.
Rahmatian, A. 2011. Copyright and creativity. Cheltenham: Edward Elgar; Craig, C. 2011. Copyright, communication and culture. Cheltenham, Edward Elgar.
Griffin, J. Forthcoming. The notion of property in copyright: A zone of discourse.
Rifkin, J. 2000. The age of access. London: Penguin Books.
See, for instance, Lessig, L. 2001. The future of ideas. New York: Random House; Lessig, L. 2004. Free culture: how big media uses technology and the law to lock down culture and control creativity. New York: Penguin Press; Fisher, W. 2004. Promises to keep. Supra 8.
See the discussion of Copyright Management Information below, infra p. 6.
Consumer Focus. 2010. Time to change the tune. Supra 9; Gowers, A. 2006. Gowers review of intellectual property, supra 9, 3.29.
For a discussion see inter alia Lessig, L. 2004. Free culture: how big media uses technology and the law to lock down culture and control creativity, supra 13; Fisher, W. 2004. Promises to keep, supra 8; Rosenblatt, B., Trippe, B., and Mooney, S. 2002. Digital rights management: business and technology. New York: M&T Books.
Jones, R. 1999. Wet footprints? Digital watermarks: a trail to the copyright infringer on the Internet. Pepperdine Law Review 26: 559; Ferrill, E., and Moyer, E. 2005. A survey of digital watermarking, at Elizabeth.ferill.com/papers/watermarking last accessed and operational August 2005, but see, as an example, http://www.digimarc.com/discover/online-embedding last accessed 22 October 2012. See also Aughton, S. 2007. Audio watermarks add new DRM to Blu-ray and HD DVD. PC Pro, at http://www.pcpro.co.uk/news/118903/audio-watermarks-add-new-drm-to-bluray-and-hd-dvd.html last accessed 27 August 2007, detailing the use of watermarks on Blu-Ray and HD.
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, supra 2, 12.
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, ibid., 12.
For details see Feather, J. 1988. Authors, publishers and politicians: the history of copyright and the book trade, supra 6; Deazley, R. 2003. Re-reading Donaldson, supra 6; Deazley, R. 2006. Rethinking copyright: history, theory, language, supra 6; Deazley, R. 2004. On the origin of the right to copy, supra 6.
Patterson, L. 1968. Copyright in historical perspective, 83–86. Nashville: Vanderbilt University Press.
For details see Feather, J. 1988. Authors, publishers and politicians: the history of copyright and the book trade' supra 6; Deazley, R. 2003. Re-reading Donaldson, supra 6; Deazley, R. 2006. Rethinking copyright: history, theory, language, supra 6; Deazley, R. 2004. On the origin of the right to copy, supra 6.
Sherman, B., and Bently, L. 1999. The making of modern intellectual property. Cambridge: Cambridge University Press.
‘The fact that publishers, not authors, were at bar, was passed over as usual.’ Kaplan, B. 1966. An unhurried view of copyright, supra 8 at 13.
Rahmatian, A. Copyright and creativity supra 10; Craig, C. 2011. Copyright, communication and culture, supra 10.
See Burnett v Chetwood (1721) 35 Eng Rep 1008; Hawkesworth v Newbery (1774) referenced in Kaplan, B. 1966. An unhurried view of copyright, supra 8, at 12. See also Deazley, R. 2003. Rethinking copyright: history, theory, language, supra 6 who in turn is quoting from Lofft, C. 1776. Reports of cases adjudged in the Court of King's Bench, 12 Geo. 3-14 Geo. 3. Owen: London.
Rahmatian, A. Copyright and creativity, supra 10; Craig, C. 2011. Copyright, communication and culture, supra 10.
Beuys, J. 2004. What is art?, 26. London: Clairview Books.
Goldwater, R., and Trevers, M. 1976. Artists on art. London: Murray.
Griffin, J. Forthcoming. Copyright evolution: creation, exploitation, rationalisation and the inevitable march to collapse.
The caveat to that could perhaps be a system based around observing the uses of works and sending back collected funds to the creator via collecting societies – but this would probably be a more difficult body to create and is not what the Hooper Report or the Hargreaves Review appear to have in mind.
Beuys, J. 2004. What is art? supra 27, 26.
Davies, G., Garnett, K., and Harbottle, G. (eds). 2005. Copinger and Skone James on copyright, 16th ed., 7–41 London: Sweet and Maxwell.
The UK does not actually have a specific system to deal with copyright threats – instead, an action needs to be brought for a declaration of non-infringement, abuse of process (which is very limited) or malicious falsehood (which is also limited). Davies, G., Garnett, K., and Harbottle, (eds). 2005. Copinger and Skone James on Copyright, 15th ed., 13–179. London: Sweet and Maxwell; Laddie, J., Prescott, P., Vitoria, M., and Lane, L. 2000. The modern law of copyright and designs, 3rd ed., 39.94. London, Butterworths.
Helberger, N., and Hugenholtz, P. 2007. No place like home for making a copy: Private copying in European copyright law and consumer law. Berkeley Technology Law Journal 22: 1061.
For examples see Lessig, L. 2004. Free culture: how big media uses technology and the law to lock down culture and control creativity, supra 25; Vaidhyanathan, S. 2003. Copyrights and copywrongs: the rise of intellectual property and how it threatens creativity, 2nd ed. New York: New York University Press.
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, supra 2, 20; on transparency of licensing, 42; Hooper, R., and Lynch, R. 2012. Copyright works: streamlining copyright licensing for the digital age, supra 3 – in the second report there is no such explicit exception but broader impact on copyright infringement is not discussed.
Bentham, J, and Bozovic, M. (eds). 1995. The Panopticon writings. London: Verso.
UK cases tend to refer to the rights provided and then apply the limitations found within Fair Dealing (Chapter III, CDPA 1988) rather than balancing the interests explicitly as in the US – cf. Bobbs-Merrill Company v Strauss, 210 US 339 (Supreme Court, 1908).
See Griffin, J. 2012, Copyright: creation, exploitation, rationalisation and the inevitable march to collapse, forthcoming.
Griffin, J. 2013. The making of a new copyright economy: a new system parallel to the notion of proprietary exploitation in copyright, IPQ 69.
Rifkin, J. 2000. The age of access: the new culture of hypercapitalism where all of life is a paid-for experience. New York: Tarcher.
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, supra 2, 18-22 – ‘However, a working digital copyright exchange could reduce copyright infringement by making it much easier for prospective rights users to find out, from an authoritative source, who owns what rights and pay the owners accordingly’ at 20.
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, ibid., 13; Hooper, R., and Lynch, R. 2012. Copyright works: streamlining copyright licensing for the digital age, supra 3, Appendices.
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, ibid., 12; Hooper, R., and Lynch, R. 2012. Copyright works: streamlining copyright licensing for the digital age, supra 3 at 14 and 24 – see www.gettyimages.co.uk (last accessed 14 June 2012).
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, ibid., 13.
Consumer Focus. 2010. Time to change the tune, supra 9, Gowers, A. 2006. Gowers review of intellectual property, supra 9, 3.29.
This debate does not concern orphan works per se, but actions of enforcement groups acting on behalf of authors and collecting societies.
Vaidhyanathan, S. 2003. Copyrights and copywrongs: the rise of intellectual property and how it threatens creativity, supra 35.
Davies, G., Garnett, K., and Harbottle, G. (eds), Copinger and Skone James on copyright, 15th ed., supra 33 at 28-45.
Hooper, R., and Lynch, R. 2012. Copyright works: streamlining copyright licensing for the digital age, supra 3 at 10.
Davies, G., Garnett, K., and Harbottle, G. (eds), Copinger and Skone James on copyright, 15th ed., supra 33 at 28-45.
Ferrill, E., and Moyer, E. 2005. A survey of digital watermarking, supra 17. See also Aughton, S., Audio watermarks add new DRM to Blu-ray and HD DVD. PC Pro supra 17; see discussion in MGM v Grokster, 518 F.Supp.2d 1197 (CD Cal., 2007).
Leach, A. Judge Orders O2 to name suspected smut burglars: Ben Dover wins battle to halt backdoor leakage at http://www.theregister.co.uk/2012/03/27/golden_eye_wins_telefonica_court_victory/ (last accessed 15 June 2012). See Golden Eye (International) Ltd and others v Telefonica UK Ltd [2012] EWHC 723 (Ch) [note: appeal outstanding at the time of writing, October 2012].
Art 2, Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised in Paris on July 24, 1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986) [The 1979 amended version does not appear in UNTS or ILM, but the 1971 Paris revision is available at 1161 UNTS 30 (1971)].
Trade Marks (Relative Grounds) Order 2007, SI 1976/2007.
Designers Guild v Williams [2001] 1 WLR 2416.
It is worth noting though that attempts at such an interface in relation to the exemptions clause within Art 6(4) of the Information Society Directive were not particularly successful – Gowers, A. 2006. Gowers review of intellectual property, supra 9, 73. ‘As yet, no-one has filed a complete notice of complaint, yet both the Consumer Project on Technology (CPT), an IP research body, and the RNIB told the APIG committee that this process is “slow and cumbersome”.’
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, supra 2, 18–22 – ‘However, a working digital copyright exchange could reduce copyright infringement by making it much easier for prospective rights users to find out, from an authoritative source, who owns what rights and pay the owners accordingly’ at 20.
http://www.gettyimages.co.uk/ (accessed on 12 June 2012). Supra 44.
Consumer Focus. 2010. Time to change the tune, supra 9 at pp. 6–7.
See infra p. 3.
Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, supra 2, 20. The second report does not consider these issues but towards the end there is a comment that ‘There must be a sensible balance between the rights and requirements of licensors and of licensees, of producers and of consumers, a balance that is beneficial to both parties leading to further and sustained growth and innovation in the UK creative and internet industries.’ Hooper, R. and Lynch, R. 2012. Copyright works: streamlining copyright licensing for the digital age, supra 3 at 37.
Gowers, A. 2006. Gowers review of intellectual property, supra 9, 69–72; Hargreaves, I. 2011. Digital opportunity: a review of intellectual property and growth, supra 1, Chapter 4; Hooper, R. 2012. Rights and wrongs: is copyright licensing fit for purpose in the digital age? The first report of the Digital Copyright Exchange feasibility study, ibid., Chapter 6.
Brandeis, L. 1916. The living law. Illinois Law Review 10: 461; Ehrlich, E. 1936. Fundamental principles of the sociology of law. Cambridge, MA: Harvard University Press.
See infra pp. 3–4.
Habermas, J. 1984, 1987. Theory of communicative action (Volumes I & II) trans. T. McCarthy. Boston: Polity Press – with a particular emphasis on the discussion regarding the lifeworld in Volume II at 332. For the application of this to copyright see Griffin, J. 2013. The making of a new copyright economy, IPQ 69.
Supra 62.