Tomás F. Serna
June 25, 2006
(…) “In certain cases of exceptions or limitations, rightholders should receive fair compensation to compensate them adequately for the use made of their protected works or other subject-matter. (…) The level of fair compensation should take full account of the degree of use of technological protection measures referred to in this Directive.” [ Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001.]
Fair enough, right?
In the EU, copyright levies find their justification in the need to balance the author’s exclusive rights upon use/reproduction, etc. of their works, with a certain set of ‘public interest’ exceptions and limitations to those exclusive author’s rights.
Currently these ‘public interest’ exceptions comprehend certain situations such as: (…) “specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage(…)”; (…) “broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair compensation“; (…) “reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation(…)”, etc.
So, author’s exclusive rights upon their works are one of the means by which they would be able to exercise a certain amount of control upon their distribution, (and supposedly income would be brought to them). On the other hand governments aim to foster a somewhat ‘free’ flow of culture and –one dares to assume…–, the cultural development of their citizens, and thus, a certain set of exceptions and limitations to said author’s rights are put in place, (“on condition that the rightholders receive fair compensation”).
So far, so good. At this level of abstraction, this scheme sounds reasonable enough.
On to copyright levies for ‘private use’. How do they work in the real world?
Manufacturers of certain ‘means’ by which works can be reproduced are obliged to pay a certain amount of money to the authors of the works that could be reproduced. Sets of rules are put in place in order to determine the exact amounts to be paid. Should manufacturers fail to comply with this payments scheme, distributors and/or resellers of these means are held liable –joint and several liability–, for this. Since all this works at assumptions levels, intellectual property rights organizations representing authors are entitled to such payments.
But lately, copyright levies seem to have abandoned their intended exceptional role as a source of additional income for authors, and are taking more and more the role as a main source of revenue for them, or, at least, for the organizations that supposedly represent them.
New technologies have brought new possibilities as well as new challenges for our incipient global knowledge-based economy. Copyright levies were the response to certain risks at a certain time in an analog world.
We now live in a digital world. And the digital world has its own responses to its own new challenges. ‘Digital Rights Management’ (DRM) technologies is the name that comprehend new techniques aimed at fighting piracy in the digital world.
But DRM work at such a level of certainty that might be inconvenient for certain organizations… For instance, when a song is sold at one of the iTunes Music Stores, DRM are applied so the music label can have a certain degree of safety regarding it’s property, but the exact number of copies sold are known at every precise given time.
In other words: The copyright levy system, working at the ‘assumptions’ level, provides much higher levels of revenue… but wait for it: not for the authors… but for the aforementioned kind of organizations that sort of ‘represent’ them.
Copyright levies might have been the only adequate response at the time. DRM, though not always effective, provide an adequate mean of intellectual property protection, and a much fairer scheme of retribution to the author of any identified given work.
But don’t take my word for it, the European Commission in its work program roadmap for 2006 regarding this policy area, states the following:
(…) “The Commission is concerned that copyright levies are being applied to digital equipment and media without due account being given to the impact on new technologies and equipment especially the availability and use of so called “digital rights management” technologies which can provide alternative ways of compensating right-holders.
Furthermore, there is a lack of transparency about the application, collection and distribution of the copyright levies to right-holders.
Unless this problem is addressed, it will hamper the move to a knowledge based economy and the fulfilment of the Lisbon Agenda goals.“
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