There needs to be a comprehensive revision of the provisions that relate to the administration of copyright licensing, royalties and enforcement. I propose that a joint public/private administrative body made up of representatives of all competing interest, including the public, be established and authorized to, among other powers, issue licenses; negotiate, set and administer royalties; and adopt rules and regulations to carry out these purposes.
Judge Mriam Hall Patel
While Utopian in nature -- and with no discernible constituency beyond Patel -- the proposal is hardly on anyone's docket right now. But anyone looking for a diplomatic way forward that would protect rights holders without punishing their customers could do much worse that heed the advice of this particular jurist.
Patel has had seven years to think about what's wrong with the music business and the digital landscape she helped create with her landmark Napster decision, in which she ruled that the peer-to-peer service ”knowingly encourage[ed] and assist[ed]” the exchange of copyrighted music to the economic detriment of the record industry, a finding which ultimately spelled its doom as a free and free-wheeling service.
Part of the problem just won't go away, like the ease with which any recording can be digitized and shared with an infinite number of others -- like Patel's speech, which I bootlegged and saved as an MP3.
“It was not surprising that the notion of free music caught on," Patel said at Fordham. “What is surprising is how the industry seemed to be caught so short. While it was fumbling the new ways to distribute digital music at a profit in the new age, savvy innovators were moving full speed ahead. Sadly, it is the artists and composers who have been the most neglected in this matter."
But legislation is not the answer, she has concluded. “Our copyright laws have become a patchwork of amendments that are adopted as emergencies arise" and as lobbyists representing various interests push legislation. Simply put, the system is too complex and doesn't properly address music's present -- let alone its future.
Judge Patel's recommendations:
The new body needs to be a mix of public and private entities with all parties represented. It cannot be a purely governmental body because that is not likely to instill confidence in the public.
All copyrighted music would be part of this system and subject to a compulsory license, with possible opt-out provisions for certain rights holders.
Congress should abolish all current compulsory licenses and adopt a blanket licensing system. (Such a system may have allowed Napster to continue operating, assuming it could afford to pay labels under the compulsory licensing scheme.)
The body would administer all royalty payments and would replace all current systems for doing so.
An independent arm would arbitrate royalty disputes using music databases that allow arbitration to be done with speed and precision lacking in the current system.
Manufacturers and developers would need approval from this body before introducing an application or device capable of recording, distributing or copying music to consumers. The body would include technology experts to aid in making those decisions quickly -- Patel described this as “sort of like the FDA, but much faster."
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