What About Creating A Digital Transmission Right

Bennett Lincoff has been proposing a different kind of solution to the music industry’s online woes for quite some time. Last year, he did a great job picking apart some of the major problems with Jim Griffin’s Choruss plan (which, again, we’ve been told was supposed to launch in January, but we’re still unfamiliar with any universities — let alone the tens of thousands of students — who have signed up for it). However, we haven’t really looked at Lincoff’s own proposal.

Reader SteelWolf sent in a copy of Lincoff’s proposal that was sent to the Canadian government during its open copyright consultation last year. On the whole — of the various proposals out there, Lincoff’s might be classified as one of the “least bad” solutions, but that’s a lot different than it being a good proposal.

The basic idea of the proposal is that a new right would need to be created under copyright law, the digital transmission right, that would replace the mishmash of copyright rights that currently cover online music (generally reproduction, distribution and performance rights). Basically, this transmission right would cover any and all music transmissions online and any license fee would be paid by the transmitter, not the transmittee. Thus, anyone could download or stream any music they want on their computer with no penalties at all and no need to secure a license. However, you would not then be able to share (transmit) that same music to someone else without a license. But this wouldn’t matter so much (the theory goes), because a large service provider could pay for the transmission rights, absolving the individuals. In other words, with such a system, in theory, The Pirate Bay or a Napster could pay the transmission rights, and users would be free to both download and upload via those services. The theory is, of course, that it would be worthwhile for those sites to pay because they would get many other benefits from all the users flocking to them for sharing:

This “digital transmission right” would be a new right, not an additional right. It would replace the parties’ now-existing reproduction, public performance and distribution rights (and, where applicable, the making available right and the right of communication to the public). These would no longer have separate or independent existence for purposes of digital transmissions of sound recordings or the musical works embodied in them.

The only act that would require a license, or payment of a license fee, would be the digital transmission of recorded music. Every transmission that is not subject to exemption would require authorization. This does not mean that separate payment would be due for each transmission of each recording; only that, regardless how license fees may be calculated, all non-exempt transmissions would require authorization.

Licenses would be made available unconstrained by the concerns that have driven the industry’s failed campaign to salvage its sales-based revenue model. The determinative consideration would be whether or not recordings had been digitally transmitted, not whether transmissions result in sales, promote sales, or cause sales of recordings to be lost.

Licenses would be issued without regard to whether recordings are streamed, downloaded, or transmitted by some means not yet devised; whether music programming is interactive or non-interactive, or contains this, that or another recording; whether the service accepts user-generated content, operates as a P2P or social network, or otherwise retransmits or further transmits recordings that originate from other sites or services. The number of copies necessary to effect transmissions and the type of transmission technology used would not affect the availability of a license.

There are a lot of other details, and Lincoff has clearly put a lot of thought into the proposal and tried to cover many of the bases that people would likely critique. Compared to our current system, it certainly sounds like it makes more sense. He definitely does an excellent job describing that the only real problem is one of the industry’s own making in still thinking entirely in the context of the old way that music was “sold.” But the proposal still has a variety of problems. First, it’s incredibly complex and not easy to understand. This is, of course, also true with existing copyright law. But replacing one super complex system with another one isn’t necessarily a great thing either — especially if that level of complexity isn’t needed.

Second — and this is my really big problem with it — is that it still involves a huge and totally unnecessary bureaucratic nightmare in the middle that represents tremendous economic and societal waste in terms of managing the licenses, monitoring the usage and the transmissions of content and collecting and distributing the money. It’s bureaucracy that isn’t needed. We’re already seeing over and over and over again that if you take out the unnecessary bureaucracy, artists can create business models that are much more direct, whether directly between the artist and the fan who wants to buy something or between an organization representing the artist. This is a much more efficient system, whereby there are plenty of opportunities to pay artists for various scarcities, rather than making up a totally unnecessary license for an abundant good which the market has already decided should be priced at zero.

As soon as you set up this bureaucratic structure, what really happens is that much of the money that could have gone directly to the artists (or to the artists’ business partners) goes instead into the massive overhead required to keep the “collection society” working in the middle. This isn’t a solution that helps musicians. It’s a solution that helps bureaucratic middlemen.

As SteelWolf notes in his submission:

Personally I find these kinds of plans to be dangerous as they promote the idea that there is some kind of a “solution” that allows content creators to retain control over digital files as they propagate across the internet. These are not solutions, they are handwaving to obscure the fact that the economy has changed so that absolute control over content is neither possible nor necessary. The voluntary aspect of licensing promotes the idea that negotiating uses and fees with rights-holders is somehow the “morally correct” way to proceed, never once considering the idea that our culture may have moved beyond that construct.

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