Compulsory Licensing (Was: Lolita's copyright)

We have a system of compulsory licensing in Australia (as do many jurisdictions) in relation to musical compositions-but not recordings. I find the division arbitrary and, possibly, cynical. It seems engineered to the benefit of recording companies-they may source appropriate material at will but their derivative product is sacrosanct. There is, IMHO, no logical basis for the difference in treatment of one version of the right in musical works and the other.

Moreover, in the age of sampling and post post-modernism, the requirement to obtain a licence might be said to be a real impediment to the creation of "new" works - which I regard much of sampling to be. While it is true that in practice many artists are licensed to use other recordings or parts thereof-why should it be necessary? And in literature after Joyce and Elliot, how can the practice of appropriation and allusion be denied as a legitimate form of creative expression? Or is it only legitimate if the appropriated works are in the public domain.

The rationale for copyright is, allegedly, incentive to creation - the carrot being monopoly rights. But surely a guarantee of financial reward and some protection of attribution and integrity is reward enough. IMO the true issue is one of compensation for the use-as long as some "moral rights" are recognised. Collecting societies are well established and seem to work OK in relation to compositions and performance of recordings, for instance. While common law jurisdictions have an ingrained (it seems) resistance to introducing moral rights into their codes, it seems much of the basis for that goes if it is coupled with a compulsory licence system that remunerates the source creators.

So it seems to me the system could be viably extended to works in general. This of course makes developers, particularly of software, reel in horror. I have seen international clients turn green at the gills at the very idea. Is that justified or just greed?

Of course practical difficulties would arise with issues such as an overlap between fair use quotation and use requiring licence and royalties-particularly in literature. But fair use is inherently fuzzy and the jurisprudence developed in that area would seem capable of accommodating a comprehensible and viable co-existence of the two types of appropriation.

Here endeth the rave.

Simon Minahan
<sminahan[_at_]bigpond.com> Received on Fri Oct 23 1998 - 00:44:26 GMT