The Landscape of Collective Management Schemes
Gervais, Daniel J.
I see a bright future for collective management as a model. Each country and each CMO will be different and United States CMOs will likely have fewer collectivized elements than their foreign counterparts. But beyond those differences, a business model of “yes” maps well over mass uses for many types of commercial content and the difficult excludability of online published content. This should appeal to authors but also to those who commercially exploit their works. CMOs could help corral users of commercial content into a paid and structured form of access. Once stable financial flows have been established or restored, contracts and law and in some cases light DRMs can provide support to target recalcitrant users. Users and commercial rights holders can meet, and authors would benefit from the added transparency. The question is whether CMOs can be the matchmaker. I hasten to add that I am not suggesting a “fared use” world. Free uses must remain, both because that is what some authors want and because fair uses are essential. However, litigation against individual users is not optimal and thus fair use should be partially factored into rates for mass access to commercial content. This would not prevent an acknowledgment that certain uses remain outside the scope of those contractual umbrellas, and new test cases will be needed. A license covering some fair uses need not lead to a payment, as some uses can be licensed but “zero-rated.” There are obvious normative issues at play, and it is not just about the proper boundaries of property rights. There are legitimate questions concerning access and culture, and this debate should not detract from a duty to consider their substantive merit. Empirically, the continued growth of collective management over the past decade lends support to the view that online access to a repertory for mass noncommercial uses should be a major way forward. At this juncture, my sense is that the best workable option is to do this collectively, not letting each right holder build its own system... Our landscape horizon is the computing Cloud, by which I mean that copyright content will progressively reside not on individual computers, but on servers that users will access from any device. Moving content to the Cloud is likely to reinforce collective or repertory-based licensing models, that is, access to “everything.” Will it also reinforce possibilities of control and exclusion?