Recently, CISAC hosted the World Copyright Summit in Washington,DC. Having been to my share of intellectual property conferences, I didn't expect to hear anything new or interesting. And while some panels did indeed beat the dead horse dead, a few panels and speeches presented new ideas and perspectives. Mark Heller, a Columbia Law School professor, introduced us to the term "copyright gridlock."
Heller stated that too much ownership of something, even copyright, creates "gridlock". In other words, when something is divided into lots of parts, each of which is privately owned by many different parties, this thing will not be utilized to its full potential because the various parties will pursue their own interests. This, he argues, prevents wealth and innovation.
Heller used the following examples to illustrate his point: 1) The Martin Luther King documentary, "Eyes on the Prize" could not be performed because the movie makers could not identify all the rights holders and get the necessary licenses; 2) a drug company with an alzheimers drug isn't able to navigate the patent rights to get all the necessary licenses so it shelves the drug; 3) the airwaves not being utilized because of thousands of owners; and 4) increased air travel delays because land owners near airports are not willing to sell which prevents the construction of new runways.
Heller says that the new economy is all about "assembling ownership." Copyright owners, he contends, will actually negotiate better deals when they approach the situation from the perspective of all the copyright interests working together to get a good deal that in turn benefits the public.
To that end, he suggests copyright owners do the following to reduce the "gridlock"; 1) take steps to make sure that copyright owners are easily identified because users generally want to pay for use; and 2) should rethink voluntary vs. compulsory licensing.
So, all in all, a very interesting presentation. It certainly provided a different perspective on copyright ownership, licensing, the public interest, and the balance between all the interests. It really shifted the focus off the rights of the content owners to control use of their works to more of their responsibility as a collective whole to work together for the benefit of the public. As a result, wealth and innovation will grow. Copyright and patents will become less and less important to owners and the process of marketing and producing will be more important.
Okay- I agree that it behooves copyright owners to work together to create the easiest possible ways to license their works. But, as the questions to Mr. Heller show, this theory is not without its flaws.
As one audience member pointed out, Mr. Heller's theory is a a very simple view of the costs involved. His examples didn't take into account the costs of what would happen without the gridlock. That gridlock, in a sense, may have a value in that it balances the interests and without which the result may be less desirable than the gridlock. What is the cost of the new economy of "assembling ownership"? What impact would compulsory licensing have on content owners and the incentive to create?
Another audience member questioned the position that "copyright gridlock" actually exists since there has been a massive increase in the availability of entertainment content that can be accessed and downloaded legally. Mr. Heller's response that the measure shouldn't be the quantity of content available but rather if the content available is what consumers actually want didn't work for me. I can't think of anyone who hasn't been able to find the entertainment content they want online- even the most obscure genre or niche.
In the end, I appreciated Mr. Heller's position that content owners should try to collaborate as much possible, within the boundaries of anti-trust and consent decree restrictions, to license content quickly and easily. However, broad spectrum compulsory licensing is not the solution for "gridlock". Taking away property owner's ability to negotiate terms and rates that are in their best interest will instead act as a disincentive to innovate. We need to keep the road open for individual creators and innovators to pursue business models that work for them.