Copyright Collectives: Good Solution But for Which Problem?

Ariel Katz is an Associate Professor at the Faculty of Law of the University of Toronto. Ariel holds the Innovation Chair in Electronic Commerce and is the Director of the Centre for Innovation Law and Policy of the University of Toronto.

With the Public Copyright Consultations moving full steam ahead, various stake-holders raise proposals for expanding the scope of collective administration of copyright.  This trend is not new.  Over the past two decades or so, collective administration of copyright has been touted as a solution to many of the ills of the copyright system and to many of the legal challenges brought about by the encounter between copyrights and the digital realm. It has been viewed as the magic bullet that bridges the unfortunate trade-off between incentive and access; a mechanism that allows both rewarding creators and unfettered access to works. And indeed, while not at all a new phenomenon – music performing rights have been administered collectively in many countries for most of the 20th century – collective administration has recently proliferated across many other areas of copyright, often with enthusiasm. 

I have recently completed a paper that offers a less enthusiastic account of this trend. The paper examines several types of collective administration and argues that with rare exceptions, the various justifications for collective administration are too weak to justify departure from the competitive paradigm that underlies market economies. It suggests that in most cases collusion and rent-seeking mainly drive the formation of copyright collectives, and suspects that only rarely such rent-seeking may be justified as a matter of policy, either as a way to improve the incentives to create socially valuable works or on distributional grounds. 

I presented an earlier draft of the paper at the NYU Engelberg Center’s 2007 conference at La Pietra, Florence, and the revised version will appear as a book chapter in a forthcoming book: Working Within the Boundaries of Intellectual Property Law (Harry First, Rochelle Dreyfuss, and Diane Zimmerman, eds., Oxford University Press).  The paper can be freely downloaded from here.