A bipolar system of copyright in the Internet environment (Presentation title)

A bipolar system of copyright in the Internet environment

By

Marinos PapadopoulosAttorney-at-Law J.D., M.Sc., Ph.D. (cand.)

PATSIS, PAPADOPOULOS, KAPONI & ASSOCIATES (Attorneys-at-Law)Founding Member & Member of BoD of Open Knowledge Foundation Greece

Legal Lead Creative Commons Greece

6th International Conference on Information Law & EthicsLifting Barriers to Empower the Future of Information Law and Ethics

University of MacedoniaThessaloniki, Greece, May 30-31, 2014

A levy/tax system for Copyright

Copyright in the digital environment should be replaced by a system of levies/tax

An alternative approach that gets artists paid while making file-sharing legal

A levy/tax system that resembles a lot the blanket licensing solution

Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

A levy/tax system for Copyright—various proposals

Prof. Neil Netanel: a non-commercial use levy

Prof. William Fisher III: an administrative compensation system

Prof. Jessica Litman: a sharing and hoarding system

Prof. Alexander Peukert: a bipolar Copyright system


A bipolar system for Copyright

Securing for the right-holder the freedom to choose among given options:

Option 1: the exclusive, proprietary exploitation of Copyright on the basis of DRM

Option 2: the participation in the levy/tax system which allows non-commercial file-sharing for a fee (levy/tax)

The bipolar system allows the rightholder to earn a levy/tax share by accepting certain privileges of users, i.e. the non-commercial use of works in file-sharing systems.

The bipolar Copyright system is an additional compensation mechanism to what is available today.


Scenarios in the bipolar system for Copyright

First Scenario: The choice of options is made at the time of first publication of the work.

Second Scenario: The choice of options is made after the time of first publication of the work—the rightholder withdraws the work from one system and releases it into the other after the first publication of the work.


First Scenario

Authors might want to opt for a levy/tax system which caters for the distribution of the work as a digital file in P2P networks once it has been registered as eligible for such a distribution.

It may be useful to unknown authors, artists and scientists, but also may sound an appealing option for the well-known and established creators who make the decision to release a single piece (sample, single etc) of their work via the levy/tax system while the main corpus of it will become available via DRM protection through the Copyright proprietary system.


Second Scenario

Works are channelled from one system to another after the time of their first publication.

Two Variants.


Second Scenario—Variant One

The creator of a work that is available in the market for proprietary exploitation and on the basis of DRM protection may opt for allowing the non-commercial use of his/her work via the P2P networks after said work is assessed to have fulfilled its commercial lifecycle.

The creator achieves in making additional revenue after the assumed fulfilment of the commercial lifecycle of the work in the market.


Second Scenario—Variant Two

The creator of a work released for non-commercial use via the P2P networks, decides to switch to proprietary exploitation of said work after its release via the P2P networks.

It could happen for a work which has already sparked great interest in the market as of its first publication for non-commercial use via the P2P networks.

Leverage on technology to deter users from further sharing in the levy/tax system.


The legal default in the bipolar system

Which system should become the legal default, i.e. the levy/tax system, a.k.a. the free non-commercial file-sharing status or the proprietary exploitation system enhanced with DRM, a.k.a. the option favouring exclusivity and enhanced with technical control means?

The opt-out or the opt-in system for the bipolar Copyright should be the legal default?

If the right holder had to opt out of the levy/tax system in order to enjoy full exclusivity, it could be argued that this model in Peukert’ proposal would establish a formality requirement and thus would not be compliant with article 5§2 of the Berne Convention according to which the employment and the exercise of the Copyright shall not be subject to any formality.


No conflict with International legal framework

The opt-in model for a levy/tax system does not seem to conflict with international treaties’ obligations. It does not limit the enjoyment or exercise of exclusive rights by Copyright law.

This model only gives the Copyright owner an incentive to accept lawful non-commercial file-sharing by providing a distribution channel where “compensation without control” but with monitoring of traffic that does not violate privacy rules and legislation can become a reality.


Funding the implementation of the bipolar system

The bipolar system presents probably as an easier option to fund its implementation compares to others such as the model of collective licensing proposed in 2003 by EFF.

The opt-in levy/tax model for legal non-commercial file-sharing and use does not depend upon the readiness of consumers to pay any subscription fee—there could be no such fee—but it leverages on the imposition upfront of an increased price tag for the purchase of products and services which are necessary to users for file-sharing activity and of which the value is increased by the same mere fact of their necessity for extended file-sharing.


Amend international law

Technology and private licensing alone, though they may provide for some temporary solutions to the vexing problems of Copyright, yet they cannot guarantee a solution at the public policy level be it at national or supranational levels.

International instruments, such as the Berne Convention, the WIPO treaties, and the InfoSoc Directive—to name a few—need to be amended in order to proceed on the assumption that national laws will take due care of the public interest and cater for a balanced regulated framework for Copyright in the technologically sophisticated Internet-networking online environment. International copyright law has to be considered in any discussion about the future of copyright in the digital network environment.


Thank you!

A bipolar system of copyright in the Internet environment

6th International Conference on Information Law & EthicsLifting Barriers to Empower the Future of Information Law

and EthicsUniversity of Macedonia

Thessaloniki, Greece, May 30-31, 2014
