There has been a lot of discussion recently about the new proposals sent out for comment by the Copyright Office about orphan works and mass digitization, and numerous library groups are drafting responses to the Notices of Inquiry as I write. Part of what the CO proposes in regard to mass digitization is an “extended collective licensing” scheme, which prompts the question in my title.
Before turning to that, however, let’s look a moment at the whole picture of what the CO is suggesting here. The proposals address the overall problem of orphan works. Unfortunately they do not do so by taking steps to reduce the number of orphan works or to make finding rights holders easier. Instead, they create significant new obstacles for users who want to make use of an orphan work. If you are looking to use just one or two works for which a rights holder cannot be determined, the CO wants you to go through a poorly-defined process of making a “reasonably diligent” search AND they will insist that you register your use. If this seems backwards, that is because it is. The goal here seems to be to discourage use, and hence new creation, by placing the onus on the user rather than the rights holder to make themselves known. The excuse for such lousy policy would probably be the prohibition of formalities in the Berne Convention, but other countries have adopted voluntary registries for rights holders. Our Copyright Office, however, has been blinded by staring into the brilliance of Hollywood for so long, and can only see copyright on their terms. Hence the necessity of burdening users who, we know, are significant threats to the “creativity” of the music and movie companies.
Alongside this proposal for how to deter use of individual orphan works is a grander scheme to deter mass digitization projects, called extended collective licensing. So what does “extended” mean in this context? A normal collective licensing scheme means that rights holders get together and create a collective organization to administer the rights that they own. Such organizations are usually inefficient and sometimes prone to corruption, but there is nothing inherently wrong with the idea behind them. They could, if done well, increase efficiency for both rights holders and users (that is, for new creators). When a collective licensing scheme is extended, however, it means that licenses are being sold for rights not held by any of the members of the collective society. That is the point about orphan works — a collective society representing the traditional content industries would sell licenses for the use of works for which they do not, by definition, hold the rights. They would collect licensing fees “on behalf” of the unknown owners. According to the proposed pilot, such a collecting agency would have an obligation to look for the correct rights holders in materials for which the collect fees, but there is no indication of how they would do this and no indication that a significant success rate could be achieved. After a certain period of time, of course, the money collected would belong to the usual suspects; they would reap where they did not sow.
So what does “extended” really mean here? If the situation were reversed, the content industries themselves would have a perfect word for it. They would call it theft, or piracy. Traditional rights holders love to use analogies with real property, claiming, ad nauseum, that downloading an unlicensed movie is equivalent to driving off in someone else’s car. Now they are proposing, through the Copyright Office, to sell other peoples’ property for their own benefit. Wouldn’t the “extended” analogy then be me trying to sell a car parked in front of my house, just because I do not know who the owner is? It seems that in this context, “extended” just means parasitic — claiming a unjust and undeserved benefit from someone else’s labor.
Economists, of course, have less harsh, but no less pejorative, terms for this sort of arrangement. One is “rent seeking,” which refers to efforts to gain a profit without making any reciprocal contribution to society by creating value. When a company records and distributes a song or an album, and collects money for it, that is a normal economic exchange — value for value. But when Warner Music Group continues to collect fees for the use of “Happy Birthday to You” long after any incentive for creativity is being fostered and, apparently, long after the rights have been abandoned, that is pure rent seeking — the pursuit of an undeserved profit without a normal exchange of value. ECL is a similar exercise in rent-seeking, asking, that is, to benefit from the labors of unknown others without the obligation to provide value in exchange.
Another economic term is relevant here — deadweight loss. Taxation is often held to be responsible for deadweight loss, when, because of taxes, it becomes too expensive to make or sell some good. In that situation, the manufacture will stop making the good, and society will lose all the potential benefits — no goods and no tax revenue. Deadweight loss. In the case of extended collective licensing, the risk of deadweight loss, and the analogy to a tax, is the same. ECL is a form of tax on using orphan works. The revenue from that tax will have no benefit in providing an incentive for further creation, because it will not go to the creators who made the works in the first place. But a requirement to pay such an unproductive tax will certainly deter many digitization projects that could make rare historic materials available for research, study and teaching. Thus productivity is lost without the benefits of an economic incentive. It is, truly, a lose-lose situation.