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The Public Domain Manifesto is available at http://publicdomainmanifesto.org/ and the presentation slides are also on slideshare.

This work is licensed under a Creative Commons Attribution 3.0 Unported License.

Abstract:

The main change we would like to see in EU law is to require collecting societies in the EU to operate in a non-exclusive capacity, allowing musicians to retain their rights and for them to be able to do their own licenses. This is how collecting societies have operated in the USA for over 60 years and has not negatively impacted their ability to collect in efficient ways in their main competence area. In other words, I would like to see a weakening of the monopoly power of the national collecting societies, to allow competition.

More information:

Magnatune's main business is selling music licenses to business for various uses, such as for independent films, TV ads, web sites, and music feeds to restaurants and stores. Currently, most collecting societies (except in the USA) are exclusive and do not let musicians do their own deals (ie, make a direct sale themselves).

For instance, a UK musician belonging to PRS cannot grant a license to a UK restaurant to play their music. The UK Restaurant would still need to pay PRS.

In the USA the situation is different, and the collecting societies are non-exclusive, because the collecting societies were sued as monopolies and are required under the "consent decree" settlement to be allow musicians to do their own deals.

In practice what this means is that when a European customer approaches us, we:
1) can license them any music that not with any collecting society
2) can license them any music from a USA musician
3) can *not* license them any music from outside the USA, if the musician belongs to a collecting society.

This has two negative consequences for Europe:
1) licensing businesses following the Magnatune business model cannot exist in Europe, because the exclusive (monopoly) collecting society system is effectively a "restraint of trade" prohibiting any competition with the national monopoly collecting society
2) European musicians belonging to a collecting society are at an economic disadvantage to USA musicians, because they cannot sell their music for public space usage, except to the USA. USA musicians belonging to a USA collecting society can sell their music for public space usage globally.

The main change I would like to see in EU law is to require collecting societies in the EU to operate in a non-exclusive capacity, allowing musicians to retain their rights and for them to be able to do their own licenses. This is how collecting societies have operated in the USA for over 60 years and has not negatively impacted their ability to collect in efficient ways in their main competence area. In other words, I would like to see a weakening of the monopoly power of the national collecting societies, to allow competition.

Here is a paragraph explaining the regime under which the American collecting societies function under (from http://www.musicdish.com/mag/index.php3?id=3825)
Licensing 80 percent of all music performed on the radio, ASCAP attracted its first antitrust suit from the Antitrust Division in 1934. The Department contended that ASCAP dominated the radio industry and should be dissolved. The case became dormant after the government received a continuance after a two-week trial. In 1941, the Department sued both ASCAP and BMI on the principal ground that their blanket licenses, which were their sole offerings, were in restraint of trade. Consent Decrees quickly followed that specified, among other things, that licensing practices must be non-exclusive and that licenses and individual members/affiliates should be allowed to directly contract with one another.

This work is licensed under a Creative Commons Attribution 3.0 Unported License.

Abstract:

My contribution to the challenge of finding alternative remuneration systems in an electronic environment is from the perspective of science and education, in particular in publicly funded organizations.
With a few exceptions, authors in science do not receive any direct monetary reward for works published in a commercial journal (indirectly, of course, they profit from their work, because publications that are well received by the scientific community further their personal career, with often financial consequences).
Actually, in this situation there is no need for individual financial remuneration, because scientists are as a rule already remunerated by their salaries. In science, the dominating incentive for doing research and for publishing is recognition by the scientific community, not monetary benefits. The official copyright assumption that new knowledge will only be produced and published if creators are guaranteed financial compensation for their work is unfounded in science.
This is a generally accepted and common sense view in science. What is not common sense so far is that knowledge produced in science and in public environments, which is financed by the public, needs to be considered a commons. A commons cannot be private property – it is owned by society as a whole, knowledge objects in science are res communes. The traditional concept of property as res privatae should be replaced by the concept of a common property. This is true for many natural commons such as the air, water or natural resources but it is also true for immaterial commons such as knowledge.
Neither authors nor exploiters (publishing companies or content providers on the Internet) should be granted exclusive property or exploitation rights. Let there be no misunderstanding, authors must be guaranteed legal protection for their moral rights (Persönlichkeitsrechte/personal rights – as they are called in German). Their remuneration is the recognition of their scholarship and attribution of authorship.
Again, there be no misunderstanding, scientific knowledge, even when considered a commons should not be excluded from private commercial exploitation. But commercial exploitation needs to be organized in new ways. Today, exploiters are allowed to treat scientific knowledge as res nullius. It can be privately absorbed and made into a private good without any compensation to the public, who is the genuine owner of publicly funded research. Compensation as an alternative form of remuneration can be accomplished in many ways. Firstly, any exploitation of scientific work can only be accepted when the commercially published version provides evidence of significant value-added effects compared to the plain original text, the author´s version. This value-added effect is a special kind of remuneration. Secondly, knowledge, that has been transformed into information products should be made publicly available according to the open access paradigm, concomitant with the commercial publication (or after a short embargo time – six months, for instance). This is considered the green road to open access. Thirdly, if exploiters insist on their private commercial rights for published products (and if authors accept these contractual agreements), there should be compensation for the public, preferably, but not necessarily, in financial terms. The current system should be completely reversed. It is not the public who should pay, via libraries or directly on retail markets, for the use of published scientific material (by buying the products or by paying royalties), but it is the publishing industry who should pay financial compensation to the public for being allowed to exploit publicly funded research.

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I Dream of Dodos - Why Collecting Societies Should Play a Major Role in "Alternative Compensation Systems" and Why They Should Be Saved From Extinction

Abstract:

“Alternative Remuneration/Compensation Systems” are the trendy center of the latest copyright-debates. If all ideological ballast is cast aside, two major questions remain: “How does the user get the content” and “How does the creator get the money”.
Users are increasingly adept at getting the content they want and it would be hightly unfair to claim that they would not want to pay for it. However it seems that technology is on their side and creators are left out in the rain, getting no or not enough money for their work. Over the last decades the entities which have made sure that creators get their money were the collecting societies (CS). These CS have established a global network specialized on the licensing of creative content and distribution of remuneration. Not only is it important to realize the strengths and weaknesses of current remuneration/compensation systems it is also mandatory to acknowledge the importance of CS for any future systems. For this, at least the European CS-system has to be modernised and harmonised. CS should be used for the documentation and allocation of the use of content as well as for the distribution of the earned money to the right-holders based on fixed rules. The key points for an “alternative” or simply overhauled system based on CS are transparency and credibility. This can be obtained by European harmonisation and governmental supervision of the CS-system.

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Abstract:

Common sense tells us that road users need rules, signs and controls, lest they cause accidents. City planner Hans Mondermann, counter-intuitively, did away with all of them and created a "shared space" where participants negotiate their movements ad hoc, at eye level. Common sense tells us a number of things about money and creditors that banker Muhammad Yunus turned on its head. Common sense tells us that software is a high-investment, high-profit good that needs to be protected. Richard Stallman started to give his software away. All three were called crazy in their times. All changed the world and the way we think about it.

If shared space, shared money and shared code work so well why not shared culture? The current copyright regime is built on Mark Stefik's dictum "It's unfortunate but people are dishonest." On the contrary, people prove time and again their willingness to pay creators, if, that is, they are not treated as thieves but as partners. In many forums a new social contract between authors and audiences is being negotiated. It is made up of many elements, including a lump-sum-payed permission to file-sharing. "If you tread people as idiots, they will start behaving as idiots." (Mondermann) Conversely, if we start treating each other as partners in an arrangement where we collectively provide creators whose works we enjoy and share with each other with decent working and living conditions to create them, we will behave accordingly. What is needed is a shift from received common sense to commons sense.

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Abstract:

We report results from a large recent study of the public domain in the European Union. Based on a combination of catalogue and survey data we provide figures for the "size" of the public domain extending across a variety of media. In addition, combining our size figures with material on price, sales and usage we have obtained estimates of the overall "value of the public domain". Our work provides one of the first quantitative estimates of the `size' and 'value' of the public domain in any jurisdiction and also has direct relevance to current policy questions such as term extension and archive digitization.

This work is licensed under a Creative Commons Attribution 3.0 Unported License.

Abstract:

Setting the scene:

The presentation is based upon the results of an original exploratory empirical study about:
what forms of intellectual property (IP) appropriation mechanisms do firms engage in, taking into account both proprietary IP (patents, copyright) and non proprietary IP (open source, non-patented innovations);
what kind of strategic value (related to finance, innovation, strategic relationships, competitive advantage & market positioning) do firms seek when they exchange these different forms of IP through different governance forms (selling, buying, licensing, etc.);
what obstacles (related to IP search, transparency, contract negotiation and enforcement issues, as well as regulation) do firms encounter when attempting to create value through the exchange of IP.
whether there is a relationship between the value firms seek or the experienced obstacles, and the type of IP marketplaces (patents, copyrights, open source, or no protection) firms participate in, or the governance structures (such as licensing in or out, cross-licensing, pooling, etc. in the case of patents) they apply.

Pilot case studies have been realized on three sectors where the problem of the extent to which IPR should be enforced has been particularly debated. This allows us to derive some general implications from our findings. The sectors of investigation include ICT (software and hardware) firms and public research organizations in the UK, as wel as pharmaceutical firms in Germany.

The survey data that contribute towards the data analysis of this paper are obtained through a large scale questionnaire. This research is forming part of the EU 6th Framework Project U-KNOW (Understanding the relationship between knowledge and competitiveness in the enlarging European Union) which is an EU Specific Targeted Research Project (STRP) where Birgitte Andersen was a work package coordinator of "An IPR Regime in Support of a Knowledge Based Economy".

Contribution:

With respect to IP activity, we find that most firms in all three sectors exchange IP rather than just holding it, and that most firms exchange more than one type of IP, usually including non-proprietary IP (open source, non-patented innovations), either exclusively or in combination with proprietary IP (patents, copyright). The exchange of product and process innovations that are not formally protected involves a high share of firms in all three sectors and generates a relatively higher number of transactions. Consequently, better understanding of the processes of value creation through IP governance requires us to understand how firms engage in different forms of IP transactions, including paying attention to the exchange of product and process innovations that are not formally protected. In all sectors, different models of value creation from IP exchange coexist, with size (in ICT firms and public research organizations) and research intensity and size (in pharmaceutical firms) seemingly associated with different models.

With respect to value creation, we find that firms create value by applying all forms of IP: firms use both proprietary and non-proprietary IP exchanges in the context of their innovation strategies, in order to gain competitive advantage and to build strategic relationships, as well as for financial gain. At the same time, firms strategically use specific IP governance structures (buying, selling, licensing, and so on) in order to seek specific benefits. These results suggest that non-proprietary IP appropriation mechanisms are used because they confer specific benefits, rather than because of lack of awareness of the potential and usefulness of patents and copyright.

With respect to obstacles experienced by firms during the value creation processes, we find that firms encounter many obstacles when exchanging all kinds of IP. Some obstacles depend on the institutions regulating the marketplace (search obstacles; some transparency problems such as lack of clarity in IPR documents); others depend on the behaviour of agents in the marketplace (opportunistic behaviour, different practices of firms); others depend on the nature of knowledge exchanged, which is often characterized by uncertainty, tacitness, serendipity, and hence makes it difficult to assess its novelty and economic value. Comparatively few firms indicate problems due to fragmented or too restrictive excessive regulations. Therefore, removing the obstacles to value creation through IP exchange is not simply a matter of tightening rules, but may require actions at different levels (at the level of the patent office, of the industry, of the overall legislative framework). Some obstacles may even be impossible to eliminate, such as the difficulty in assessing the value of new knowledge. Furthermore, because obstacles are very often governance-specific, interventions directed at removing some of them should not be “one size fits all” but tailored to specific forms of IP and to specific types of transactions.

Overall, as firms create value from participation in the exchange of several forms of IP, often at the same time, it would be important to promote a legislative framework that allows different models of value creation from IP to coexist.