Cultural Preservation: Fear of Drowning in a Licensing Swamp
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Description
Although little empirical evidence exists as to what legal regime would best incentivize the creation of expressive works, the system we have adopted quite universally relies on giving authors and their assigns comprehensive, long-lasting control over their original works. Because this system is increasingly reinforced by a restrictive international regime of treaties and trade agreements, deviations downward in a national legal system away from current high levels of protection are largely foreclosed. With a few exceptions (most notable the collective administration of music performing rights and, in the United States, compulsory licensing of compositions for sound recording), bargaining to use copyrighted works is an individualized process where the availability and price of a license are uncertain ex ante, and the cost of negotiation alone can quickly exceed the benefits that either side could anticipate from the bargain. Copyright shares these problems with the patent system, but as discussions in this volume about patent pools, sharing norms, and other strategies to avoid what Heller and Eisenberg have termed the ‘tragedy of the anticommons’ illustrate, forms of cooperative behavior that promote the use of innovations have more readily emerged in the field of patents than in copyrights. One can only speculate on why this might be so. Perhaps one reason is that patents typically do not stand alone; a patented innovation often cannot be put to productive use unless it can be combined with innovations that have been patented by other players. Even when the number of patents that must be coordinated for a project is large, enlightened self-interest seems to push individual owners to find ways around the bargaining issues because, at the end of the day, it is the only choice if owners want to enjoy potential market rewards. In contrast, the expression in copyrighted works typically has market value without needing to be combined with expression belonging to large numbers of others. As a result, the need for complex coordination to exploit the value protected by copyright does not resonate in the same way with copyright owners. Some important exceptions exist of course, and a limited number of statutory mechanisms to deal with them have developed. Aspects of the work for hire doctrine, for example, deal with a subset of works created out of multiple contributions by statutorily assigning ownership in all the pieces to a single controlling entity or individual. In other cases, individual owners have voluntarily engaged in coordinated rights management, not to combine works, but to facilitate individual licensing of so-called small uses of their work in a way that is cost-effective. But—excluding the Google Book Search Library Project (Google Library), where a scheme for massive licensing of works copyrighted under US law came out of a class action law suit and the resulting settlement agreement (which at press time has yet to be approved by the court)—if the interest in achieving coordination is driven more by public demand than self-interest internal to the copyright-owning community, adequate mechanisms to further such coordination are unlikely to exist. As a result, socially valuable uses of existing works go unmade because the traditional route to obtaining permissions for uses involving many, many works is licensing them one by one. Those who wish to provide benefits for end users—be they libraries, cultural institutions, or even commercial providers—are likely to find the time, expense, and frustration of trying to navigate the permission process an insurmountable barrier to success. Recognition of the scale of the difficulties face by those who want permission to make innovative uses of large numbers of copyrighted works is fairly recent, and solutions difficult to achieve. The example this Chapter will focus on is the problem faced by libraries, cultural institutions, and other organizations worldwide that want to engage in long-terms digital preservation of texts, music, and other cultural expression. I choose this issue because preservation is of great value, but tends not to attract much public attention. But it is, of course, only a single example of the multiplicity of possible downstream uses of copyrighted works, offering large positive externalities that are unlikely to be realized unless come compromise can be found that takes the burden of individuated negotiations off the shoulders of innovative intermediaries who want both to serve the public interest and respect the incentive system that copyright represents. Think, for instance, of the formation of digital libraries searchable by readers working in the stacks or from their desks at home. Or the creation of electronic educational and cultural databases that can pull together scattered works bearing on specialized topics. Or the development of software and linkages through which users can gain electronic access to particularized works that exist, physically, only in remote locations around the world. Even the creation of traditional analog catalogues and reference works is hampered by the barrier of permission-gathering. As things now stand, anyone who needs permissions to use all or parts of large numbers of copyrighted works will quickly find herself lost in a licensing swamp. Many a socially valuable project has drifted into that swamp, never to re-emerge. It is a situation that, in the long run, does not benefit the copyright owner, the would-be downstream user, or the public.
Source Publication
Working within the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society
Source Editors/Authors
Rochelle C. Dreyfuss, Harry First, Diane L. Zimmerman
Publication Date
2010
Recommended Citation
Zimmerman, Diane L., "Cultural Preservation: Fear of Drowning in a Licensing Swamp" (2010). Faculty Chapters. 1454.
https://gretchen.law.nyu.edu/fac-chapt/1454
