Collective Management of Copyright: Solution or Sacrifice?

The Kernochan Center at Columbia University Law School is hosting its annual symposium today in NYC on the timely issue of collective management of copyright.

Non-IP lawyers may be scratching their heads after reading that sentence.  What, after all, is collective management of copyright?  Daniel Gervais, the opening keynote speaker, starts the conference by answering that question, as he has in much of his terrific scholarship (including his edited book on Collective Management of Copyright; see ch. 1, up to page 28).  Collective management, Gervais tells us, is a way to make the copyright system work in a complex world of many stakeholders.  A collective management organization (CMO) aggregates a series of rights held in private hands and then issues licenses on a broad, common basis to users.  The historical uses of this approach date back to the 1700s in France, when dramatic works began to be managed on a collective basis.  More recently, also in Europe, many CMOs have emerged to manage rights in a range of settings.  We also see collective management in the music business in the United States.

The reason that I’m particularly interested in collective management of copyrights right now has to do with books and other materials collected and distributed by libraries.  I am working, along with other colleagues, on the nascent idea of a Digital Public Library of America.  We are exploring how we might develop a way to make much more in the way of digitized works available broadly, through online or physical libraries, in a public-spirited way that ensures also that authors and other creators continue to get paid for their work.   The proposed Google Books Search Settlement, pending before Judge Chin in federal court here in New York, would be another example of a privately-orchestrated collective management system for books.  Our DPLA idea might well take the form of a collective management arrangement with tiered access to different sorts of data.

To answer the question posed by the conference title: I think collective management of copyright is generally speaking a useful solution to problems of fragmentation, scale, and complexity in a digital era.  These schemes are not perfect, and nor do they represent a panacea.  My view is that well-designed collective management schemes may well provide the best way to serve the shared interests of creators, publishers, and the public in the context of libraries and otherwise.  I am eager to work with others to explore how a collective management arrangement might help to establish a DPLA.

As a side note, we are releasing today a wiki where anyone can join in the effort of developing this idea.  For instance, see the page devoted to the track dealing with Legal Issues, seeded by Prof. Pam Samuelson of Berkeley Law and her team.

And thanks and congratulations to June Besek, Pippa Loengard, Prof. Jane Ginsburg, and their team and students at Columbia for this helpful and impressive conference.

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