Re: droit de suite

On 04/11/2000, Lance Purple <lpurple[_at_]netcom.com> wrote:
>
> On Mon, 10 Apr 2000, Tyler T. Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > On 04/06/2000, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
> > > [...]
> > > I do not agree with the approach of copyright which criminalizes
> > > the action of copying regardless of the consequences but will be
> > > open to an approach where a portion (up to 10%) of the wealth as
> > > generated from the sales of the intellectual works should be
> > > returned to the works' creators for a number of years (up to 50
> > > years -- from the moment when a work is fixed).
> >
> > The scheme you propose IS a kind of copyright; it's just very
> > different from the one we have. [If you want to call it something
> > else, you can, but it's only a semantic distinction.] You propose
> > a compulsory license scheme for all uses of all copyrighted works.
> > That may solve many First Amendment problems; but it isn't consistent
> > with the free market approach of capitalism in general. In addition,
> > it would create enormous enforcement problems; and the problem of
> > proper "attribution" would become almost as complicated as copyright
> > itself.
>
> How so? Isn't this pretty much the situation for recorded music?
> You pay ASCAP or BMI some money, and you're free to broadcast or
> otherwise playback the work in public. You can even make and sell
> derivative works ("covers") under compulsory license. None of the
> problems you list seem to apply, and the music recording industry
> has been extremely successful to date; whereas there are no BookTV
> channels, coin-operated book readers, or glitzy award-shows for
> literary works...

First of all, I didn't say the problems were insurmountable; the point of the post was that Mr. Riolo doesn't seem to actually want to abolish copyright (as he claimed), he only wants to change it.

Second, you are ignoring the long history of problems with ASCAP and BMI that led to this point. Both were sued for antitrust violations, and both operate under consent decrees that require them to accept new artists on a non-discriminatory basis. The very reason ASCAP and BMI are necessary is to handle the enforcment problems that arise from multiple, diffuse uses. As for the compulsory license, there are royal battles every few years when the Librarian of Congress has to set the royalty rate for the "covers." Finally, even if you adopt a compulsory license, you still have the question of whether a new work infringes an old one; its just that remedies are limited to damages, not an injunction.

> I'd also point out that, without compulsory licensing, we likely
> would never have heard of the Beatles. I doubt that Buddy Holly's
> lawyers would've let a scruffy leather-clad Liverpool nightclub act
> called "Johnny and the Moon-Dogs" cover Mr. Holly's works otherwise.

I didn't say I disagreed with compulsory licenses in general, or in the particular context of music. I only said that basing the entire copyright system on compulsory licenses instead of negotiated ones was inconsistent with the American tradition, and that it would not necessarily make things any simpler.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Apr 12 2000 - 22:40:20 GMT