Collective Rights Licensing at the ISP Level
The International Association of Entertainment Lawyers (the IAEL)
The International Association of Entertainment Lawyers – the IAEL, founded in 1977, fulfills a unique role for lawyers throughout the world involved in the entertainment industry. It provides a specialist, international forum for the sharing of knowledge and experience of legal and commercial issues of critical interest and concern to the growth of the entertainment industries. The Association counts among its members some of the world’s leading entertainment attorneys, but remains distinctly personal and informal in style.
Each year the IAEL publishes a book on a topic of international concern in the entertainment business. The 2010 book is about collective licensing at the ISP level. This idea has gained momentum as revenues have declined in the media distribution businesses as a result of the transition from physical to digital distribution. We chose this topic because we were struck by how often collective licensing has been discussed recently as the “solution” to media’s sea change to digital distribution, and by how little has been discussed about how it would work. This book is about exactly that, and attempts to answer the following question:
If a collective licensing scheme were introduced to pay for uncompensated consumption of media on the internet, how would it work, and how would it be implemented on a worldwide basis?
As lawyers, we would be asked to work out the kinks and implement any system that is adopted. As a result, we feel that the answer to this question is of critical concern to anyone who wishes to discuss ISP licensing seriously. This book attempts to answer the question in the context of the historical and legal underpinnings of the law in each region in the world. We believe that discussing the idea in the context of how such a licensing fee would be implemented in each territory is the best way to determine whether the idea has practical applicability in any territory.
The book is organized as follows:
COUNTRY UPDATES: This section draws upon the help of the world’s leading entertainment lawyers to answer the question of whether, and how collective rights licensing at the ISP level would work in each jurisdiction in the world.
OPINIONS: This section contains the opinions of thoughtful people from inside and outside the affected businesses regarding the various proposals for collective licensing and the problems it is supposed to solve.
The book is meant to be a reference for anyone who wishes to get a lay of the land in particular territories to determine how these regulations will affect business they wish to transact there. We suggest that you read the sections about the territories where you transact business, or wish to do so. We have created a blog to continue this discussion on an ongoing basis, and suggest you sign up for alerts regarding updates in your the territories of interest.
What is Collective Licensing at the ISP Level?
The basic idea is that a fee for use and sharing of media accessed on the internet should be applied at the point of access, the mobile or internet service provider, or ISP. The money collected would be distributed to the rights holders who own and have the right to license the media accessed on the internet.
Although there have been many proposals for how to implement a collective licensing system, most people gravitate to two basic approaches. The first approach is a government-mandated public right to collect money at the ISP level to be distributed to rights holders to compensate for free internet media consumption. The second approach is a voluntary system in which rights holders would sign a covenant not to sue for copyright infringement for file or stream sharing any individual user who opts-in to pay licensing fees for content they access on the internet.
We are purposely circumspect in our description of these basic concepts, because there are many different approaches and the book and blog are meant to be an open forum to discuss the good and bad of collective licensing — and other ideas applied to the problem presented. We feel very strongly that it is through open and honest debate that the most workable ideas can emerge.
We are ambitious in our goals for this book. If collective licensing is not practically workable, we want to end the discussion right here. If, however, ideas emerge which can form the basis for a way forward, which preserves free and uninhibited use of the internet, but fairly compensates rights holders, we want to continue that discussion.