The treatment of digital copyright works, with specific reference to the role of collecting societies and the online licensing of multimedia products
Digital technology facilitates the conversion of protected works into a single data format making the different categories of work virtually indistinguishable. This homogeneity of data also permits the display of different kinds of works on the same platform, a phenomenon widely known and incorrectly described as "multimedia". Until recently multimedia works were manufactured almost entirely in CD-ROM or floppy disc format, however, an increasing number of multimedia works are being produced as Internet software. This changes the technical as well as the legal nature of software products bringing them closer to the true meaning of "multimedia", which will become clearer later on. The technical convergence that made digitisation possible also created the Internet infrastructure, which would permit the instantaneous delivery of multimedia products. Unfortunately, the convergence of legal rules required for the effective administration of copyright is lagging behind technological convergence, and thereby impeding the development of the Information Society. For many years the development of multimedia products was held up by a 'marketing bottleneck', which increased the length of the product development life cycle. However, with the emergence of Internet technologies, especially the World Wide Web, this bottleneck has almost disappeared. The licensing of multimedia products has always been complex due to the different rules governing copyright in particular media and the large number of rights involved in multimedia compilations. These rights are currently administered by a bureaucratic system, run mostly by national collecting societies and publishing companies. One of the main consequences of this is that authorisation must be sought in respect of each copyright work used in a multimedia product, a process which is so complex and financially risky as to prevent the production of many multimedia products. Copying technologies that make reproduction of copyright works almost effortless, along with network technologies, which give almost instantaneous access to digitised copyright works, aggravate this situation. While collecting societies may regard the system of exclusive rights which prevails in Europe as a great achievement. Those in the emergent multimedia industry regard this as an obstacle, and are therefore calling for the introduction of compulsory licensing. Currently the Commission does not demand that the collective administration of rights become the rule, but is keen to centralise the administration of individual rights. Collective administration of rights may offer a more streamline approach to rights management, but may also restrict access to information, reinforce dominant positions, and erode the position of copyright law. The scope of implied licenses to copy digital works is at present uncertain, and the situation is not likely to improve with the introduction of collective licensing. Furthermore, the use of technical solutions in rights management tends to overly favour the owner at the expense of the user. This is because such systems enable owners to claim more rights than they are entitled to under copyright law. Collecting societies are not generally keen to make the works they administer available in digital form, and even when they do, digital rights are treated as a separate class of rights for which remuneration is payable. In these ways collective administration of works can both erode copyright law and deform it. If the collective administration of works for use in multimedia is to work, there needs to be a pragmatic treatment of digital data based upon a sound knowledge technical factors and a clearly structured licensing/pricing regime. Technical solutions will only work if a broad notion of fair use is applied, since the Internet could not be used legally even if effective management/payment systems were in place. Enforcement and jurisdiction on the Internet can only be effectively realised at an international level. It is therefore vital to reinforce pertinent Articles of the Berne Convention without also unduly favouring authors and publishers. The main aims of this thesis will be to identify the factors, which inhibit the effective administration of copyright in a digitised networked environment; to assess the role of collecting societies and publishing companies in the administration of copyright in the European Union; and to identify the avenues for convergence of copyright laws regarding different forms of digitised media. In order to achieve these aims there will be a review of copyright law applicable to digitised multimedia products distributed via the Internet, the ways in which infringement of digitised copyright works occur in a networked environment will be identified, and there will be an assessment of Community legislation applicable to multimedia products. Further, the interrelation between Community level legislation and national licensing laws must be identified, the effectiveness of existing institutions that administrate the licensing of multimedia products will be evaluated, and the collective solutions to the problems associated with the licensing of digitised multimedia products distributed in a networked environment will be identified.