Re: Compulsory Licensing (Was: Lolita's copyright)

On Fri, 23 Oct 1998, Simon Minahan <sminahan[_at_]bigpond.com> wrote:
>
> 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.

The UK used to have a similar system of compulsory licensing for musical compositions but this has since been abandoned. Possible reasons for this are:

1. the recent introduction of moral rights legislation in the UK and the perceived incompatibility between moral rights and compulsory licensing (how does a court set about pricing "integrity" in the face of non-economic motives for refusing to licence?)
2. Alternatively, a public choice/interest group analysis of the law might lead one to think that this was because many publishers of musical compositions are now owned by recording companies.

> IMO the true issue is one of compensation for the use-as long as
> some "moral rights" are recognised.

I also think that moral rights should "trump" compulsory licensing clauses but the practicality of this arrangement (assuming one desires the protection of authors' interests and the introduction of price competition in the supply of any given work) depends upon at least two things (again):

1. The moral rights of authors being inalienable.
2. Author and producer being distinct agents, with distinct motives, so that the author is capable of negotiating with prospective licensees.

Otherwise moral rights will be used to pursue market power in much the same way that exclusive copyright protection operates today.

> 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?

This is a big question. I think it is highly likely that such a system would have distributional effects (in favour of consumers' short-term interests of having works at lower prices). Authors may not lose out, especially if lower prices lead to greater sales (and therefore more royalty income). However publishers (especially of highly successful works) will lose out as competitors enter the market.

Two questions (instead of two comments):

1. Why punish winners?
2. Do we really want more state intervention in the place of market transactions?

Apologies for the long posting, I got all excited.

Tom Gallagher
<thomas.gallagher[_at_]st-cross.oxford.ac.uk> Received on Fri Oct 23 1998 - 17:52:10 GMT