A Copyfighter’s Musings

With the EFF releasing its P2P white paper on voluntary collective licensing, I think it’s time we started talking terminology. There are a lot of acronyms associated with various copyright policy solutions, many of which are distinct but used interchangeably.  So let’s try to sort them out together.  Here’re some that I’ve picked up on – let me know what I’m missing and what I’ve got wrong.

Compulsory licensing refers to any situation in which, by statute or other governmentally mandated means, a copyright holder must license a particular right to anyone at a given rate.  Current examples include the covers and webcasting license.  Proposed examples for the online downloads market include mandated versions of the terms below, as well as the non-discriminatory licensing provisions in Rep. Boucher’s MOCA.  The latter is similar to aspects of Professor Fisher’s “public utility” model.

Collective licensing, if taken at its broadest meaning, can mean any time one agency is designated to setup and manage licensing arrangements, and then collect royalties for any copyright holders who want to become members.  It is most often used in relation to blanket licensing, where the agency licenses all the rights it has been assigned as one package.  For instance, ASCAP, BMI, and SESAC license the right to publicly perform for all artists in their catalogs.  They may license to anyone willing to pay at a given rate, and they can be forced to do so (e.g., ASCAP and BMI’s consent decree).
Variations on that theme: It could license to absolutely anyone (individuals, P2P providers, ISPs, etc.), but one could conceive of blanket licenses that are only offered to certain entities.  The payment for the license can vary – it could be a percentage of revenue or a flat fee.  As far as the pay-out, ASCAP and BMI count the frequency of use, but one could conceivably pay out in some other manner.
The EFF’s plan is collective, blanket licensing in a fairly conventional sense – one agency licenses to anyone and pays out by frequency.

Alternative Compensation System implements a manner of collective licensing, with some differences, particularly in the mandatory model. It is connected most directly with the models presented by Professor Fisher. In the voluntary version, an artist/copyright holder co-op would offer individuals a subscription to license certain rights – as presented by Professor Fisher, this is the entire bundle of rights, for non-commercial or commercial use, though one can imagine variations with less rights.  Content distributors, like webcasters or download sites, participate without having to pay fees so long as they counted and reported frequency of use/downloading; rather, individuals would pay the fees and thus the services would be authorized to let them download.
The mandatory model would differ in the following ways. First, rather than a co-op, the government would create or designate a particular agency.  Second, the revenue would be generated through taxes, not through licensing fees.

What smells like these but does not actually fit the categories?  P2P service Wippit and Napster 2.0’s deal with Penn State.  In both cases, people are getting all-you-can-eat access to a catalog, so the practical result is similar to some extent.  But the licensing arrangements are negotiated with each copyright holder individually, and those terms only apply to that negotiation.  Like in the EFF’s voluntary collective licensing or Fisher’s voluntary co-op, you have to sign up with a single entity to get access; however, that does not buy you licenses to perform certain activities on any P2P or downloading site of your choice.

Filed by Derek Slater at 11:36 pm under General news
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