{"id":25628,"date":"2020-07-06T14:32:25","date_gmt":"2020-07-06T18:32:25","guid":{"rendered":"http:\/\/cfif.org\/v\/freedom_line_blog\/?p=25628"},"modified":"2020-07-06T14:32:25","modified_gmt":"2020-07-06T18:32:25","slug":"blanket-licensing-a-collectivist-bureaucratic-one-size-fits-all-deprivation-of-property-rights-proposal","status":"publish","type":"post","link":"https:\/\/cfif.org\/v\/freedom_line_blog\/25628\/blanket-licensing-a-collectivist-bureaucratic-one-size-fits-all-deprivation-of-property-rights-proposal\/","title":{"rendered":"\u201cBlanket Licensing\u201d \u2013 a Collectivist, Bureaucratic, One-Size-Fits-All Deprivation of Property Rights Proposal"},"content":{"rendered":"

America\u2019s legacy of unparalleled copyright protections<\/a> and free market orientation has cultivated a music industry unrivaled in today\u2019s world or throughout human history.<\/p>\n

From the first days of the phonograph, through the jazz age, through the rock era, through disco, through country, through hip-hop and every other popular musical iteration since its advent, it\u2019s not by accident that we lead the world in the same manner in which we lead in such industries as cinema and television programming.\u00a0 We can thank our nation\u2019s emphasis on strong copyright protections.<\/p>\n

Unfortunately, that reality doesn\u2019t deter some activists from periodically advocating a more collectivist, top-down governmental reordering of the music industry in a way that would deprive artists and creators of their property rights.\u00a0 Some advocates simply will not relent in their unceasing and misguided campaign to undermine copyright protections that have provided the wellspring for U.S. musical preeminence.\u00a0 They seek to replace strong copyright protections and the freedom of market participants to mutually negotiate, ultimately to consumers\u2019 obvious benefit, and replace them with a government-determined rate and a one-size-fits-all bureaucratic approach that eliminates market participants\u2019 autonomy.<\/p>\n

As just the latest example, British activist Cory Doctorow<\/a> of the Electronic Freedom Foundation (EFF) now proposes a \u201cblanket licensing\u201d idea under which anyone wishing to offer music to pubic audiences would be required to open an account with a collecting society.\u00a0 His heavily bureaucratic proposal would curtail the ability of copyright owners to negotiate royalties as they see fit with internet music platforms.<\/p>\n

In an era of endless musical genres and methods to access them according to one\u2019s preference, how does imposing such a collectivist, centralized, one-size-fits-all regime make sense?<\/p>\n

The obvious answer is that it doesn\u2019t.<\/p>\n

Doctorow\u2019s proposal betrays a fundamental flaw by misconceptualizing the nature of copyright itself by misstating \u201ccopyright\u2019s real purpose:\u00a0 spurring creativity and innovation.\u201d<\/p>\n

While Doctorow can be forgiven for his unfamiliarity with American constitutional principles, and while the utilitarian goal of creativity and innovation is indeed a primary feature of copyright and other intellectual property (IP) protections, that\u2019s an inaccurate and incomplete statement of its \u201creal purpose.\u201d\u00a0 Rather, copyright through common law and American constitutional history is valued as a natural property right of the creator, as we at CFIF articulated in our policy manual entitled \u201dThe Constitutional and Historical Foundations of Copyright Protection\u201d<\/a>:<\/p>\n

The Copyright Clause in the U.S. Constitution and the pre-existing rights it secures both arose from a long intellectual and historical tradition that reflected both the importance of economic incentives (the utilitarian argument) and the notion that individuals have an inherent and inviolable right to the fruits of their own labor.\u00a0 As the Supreme Court has explained, \u2018[t]he economic philosophy behind the clause empowering Congress to grant patents and copyrights\u2019 is the conviction that:\u00a0 \u2018(1) encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in \u201cScience and the useful Arts\u201d\u2019 and (2) \u2018[s]acrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.\u2019\u00a0 Mazer v. Stein<\/em>, 347 U.S. 201, 219 (1954).\u00a0 Another early decision emphasized that only through copyright protection \u2018can we protect intellectual property, the labors of the mind, productions and interests as much a man\u2019s own, and as much the fruit of his honest industry, as the wheat he cultivates or the flocks he rears.\u2019\u00a0 Davoll v. Brown<\/em>, 7 F.Cas. 197, 199 (D. Mass. 1845).\u201d
\n<\/em><\/p><\/blockquote>\n

Accordingly, Doctorow\u2019s proposal violates the central concept that copyright holders possess a natural right to their creations.\u00a0 Even ignoring the natural right foundation of copyright, however, no other system of copyright protection has resulted in greater utility than our own, given America\u2019s uniquely prolific music industry as noted above.<\/p>\n

In addition to violating the fundamental rights of copyright owners to mutually bargain with music platforms, Seth Cooper of the Free State Foundation cogently summarizes<\/a> how EFF\u2019s proposal doesn\u2019t accord with the obvious realities of today\u2019s music marketplace:<\/p>\n

[T]he EFF plan sidesteps the fact that there are several major Internet music service providers and numerous smaller providers.\u00a0 Popular interactive (or \u2018on-demand\u2019) streaming music providers include Spotify, Tidal, Apple Music, Amazon Music, and Google Play Music.\u00a0 Popular webcasters include Pandora, iHeartRadio, and Deezer.\u00a0 And there are many others.\u00a0 SoundExchange reported that some 3,600 webcasting services were operating in 2019.<\/p>\n

Importantly, consumer choices also include nationwide satellite radio broadcaster Sirius XM and local AM\/FM radio broadcasters.\u00a0 Indeed, radio broadcasts are widely available through apps on smartphones and other devices.\u00a0 Additional choices include digital downloads from major Internet music service providers as well as independent and individual artist websites.\u00a0 CDs and vinyl records are also available at retail.<\/p>\n

Given the number of competitors and platform choices, it is highly unlikely that Internet music services possess market power \u2013 or the ability to charge consumers above-market prices and otherwise engage in anti-competitive conduct.\u00a0 There\u2019s no showing of market power here and so the case for government intervention falls apart.\u201d\u00a0
\n<\/em><\/p><\/blockquote>\n

Accordingly, the EFF proposal contravenes fundamental concepts of copyright protections, it proposes to reorder a music marketplace that continues to function well for all of its stakeholders and it clashes with contemporary market realities.<\/p>\n

We currently enjoy a functional market with innumerable market participants, and copyright owners across the spectrum possess the freedom to negotiate with a wide variety of potential distributors.\u00a0 EFF\u2019s proposal nevertheless aims to strip creators of the property rights they currently enjoy without justification.\u00a0 The market simply isn\u2019t broken.\u00a0 Supporters of EFF\u2019s proposal curiously assert that today\u2019s market is corrupted by monopolies, but as Mr. Cooper sets forth nicely above, a broad global spectrum of potential avenues exist for consumers to freely access as they prefer.<\/p>\n

Accordingly, the notion that we should upend a market in which consumers can access an ever-greater variety of music at low cost is an untenable one.<\/p>\n

A better option would be for Congress to expand copyright holders\u2019 protections to the sphere of terrestrial radio via the Ask Musicians for Music Act (AMFM Act)<\/a>, to extend what we know works, rather than foolishly venture into demonstrably defective novel proposals.<\/p>\n","protected":false},"excerpt":{"rendered":"

America\u2019s legacy of unparalleled copyright protections and free market orientation has cultivated a music industry unrivaled in today\u2019s world or throughout human history. From the first days of the phonograph, through the jazz age, through the rock era, through disco, through country, through hip-hop and every other popular musical iteration since its advent, it\u2019s not […]<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[5115,5114,3983,5111,2871,2872,4672],"class_list":["post-25628","post","type-post","status-publish","format-standard","hentry","category-posts","tag-amfm-act","tag-blanket-licensing","tag-copyright","tag-eff","tag-intellectual-property","tag-ip","tag-music"],"_links":{"self":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/25628","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/comments?post=25628"}],"version-history":[{"count":1,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/25628\/revisions"}],"predecessor-version":[{"id":25629,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/25628\/revisions\/25629"}],"wp:attachment":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/media?parent=25628"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/categories?post=25628"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/tags?post=25628"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}