Another Copyright Collecting Society?

Jennifer Wilson (Twitterer, AIMIA executive and former Head of Innovation at ninemsn) has authored The Digital Deadlock: How clearance and copyright issues are keeping Australian content offline, a white paper under the auspices of the AFTRS Centre for Screen Business and the Screenrights copyright collecting society. 

 The 23pp paper identifies several options in response to "problems faced by screen content producers in getting to grips with the digital world as a place to distribute product, generate audience and find new revenue sources". Wilson offers the conventional wisdom that "our ways of thinking about copyright have failed to keep pace with this new digital landscape, and that they are a hindrance rather than a help" to producers, the creative industries (industries that are apparently different to producers) and "more importantly to consumers (and, by extension, to the public good)".  What is wrong? Wilson's answer is that

In essence, the task of clearing rights is so onerous and so expensive that it acts as a heavy deterrent to producers. Most people involved in screen content are in the business because they love it, but they still need to be able to see a return on their investment. While it might seem that digitising our content for posterity is costless, simple and straightforward, it really is none of those things. Many screen content producers, production houses and broadcasters admit that they have old film footage that is being left to deteriorate. When asked why they don't make it available in a digital format, they all give the same response: The issues involved in clearing those rights are so problematic that the investment of time and money is simply not worthwhile.

The answer seems to be a new collecting society, abeit one wrapped in a fashionable peer to peer blanket. The options outlined by the white paper fall into three groups. The first group, for a 'media levy' (echoes of the 1980s Blank Tape Levy, despatched in Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; [1993] HCA 10) and overseas digital media levies, encompasses -

+ a levy on all recordable media or devices - to be paid into a fund to be distributed to rights holders under a collection society arrangement  + a levy at the ISP level based on packet sniffing the data and charged by the ISP, with revenue paid to an independent copyright collecting society for distribution to rights holders

The second group, for an "industry-based collection society", is -

+ the "Industry" should voluntarily create a collection society "(similar to, APRA and AMCOS)" which would collect fees "(from all collection means)" and distribute the monies proportionally to rights holders. + the "music industry should be encouraged to enter into a collective scheme for the granting of rights", a suggestion that I suspect reflects the history of disagreement between the film and music industries (or between film and music industry executives and associated service providers) + if such a scheme is "not voluntarily established it should be legislated" and a collecting society "similar to Screenrights created to manage collection and distribution

The IP atheists in the Productivity Commission and Treasury will presumably howl with delight at that suggestion and then ask whether it would be simpler to let Screenrights (or one of the larger collecting societies) handle the task. The third group comprises an "independently-managed" and "industry supported P2P network". Operation of the network would feature "a low fee for subscribers to access all content, with "the body" also acting as collecting society for rights holders. 

 One response is that in the classic 'Collectivisation of Copyright Exploitation: Competition Issues' by Jill McKeogh and Stephen Teece in (1994) 17(1) UNSW Law Journal 259-284. 

The authors concluded that

here is clearly a potential for anti-competitive effects arising from the activities of copyright collecting societies. It is also clear, however, that they are necessary to allow copyright owners a realistic method of enjoying the benefits of their copyright. If the plethora of statutorily created copyrights are to have some kind of meaningful value as proprietary rights, they must be enforceable, and the practicalities of this require some kind of collectivisation. The general approach taken to such problems has been to recognise their existence and to restrain blatant abuses of competition law, while continuing to permit the existence and operation of collecting societies which inevitably wield considerable market power ... the public also benefits if copyright is available as an enforceable and valuable property right, as creativity will thereby be encouraged. This view may be somewhat naive; in the Australian context it must be noted that the rights to very many, if not most, of the works exploited by copyright collecting societies belong to a few large, often foreign-dominated or multi-national corporations; their interests do not coincide with those of the Australian public.

We might be circumspect about privileging one industry (or group of interests) over another; indeed question whether some rights clearance problems are self-inflicted (and avoided by investment in new creativity rather than reuse of existing content, the approach advocated by one artist who says "create your own cute rodent rather than appropriating Mickey").