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The Digital Public Domain

 | 
Melanie Dulong de Rosnay
, 
Juan Carlos De Martin

II. Legal Framework

2. Consume and Share: Making Copyright Fit for the Digital Agenda

Marco Ricolfi

Texte intégral

  • 1 See European Commission, A Digital Agenda for Europe, Communication from the Commission to the Eur (...)
  • 2 In sketching out the broader picture, I draw on the final section of my paper ”Copyright Policies (...)

1As it often happens, the title of my chapter has an ambiguous ring to it. Are we trying to figure out which set of specific changes in copyright legislation would help to achieve the targets set by the specific policy document released by the EU Commission last year? Are we supposed to deal with a broad new vision of the role of copyright intended to foster the generation and dissemination of creativity in the new digital environment?1 And are we talking about EU Directives or the Berne Convention—about the short term or medium term? Well, perhaps the two dimensions, different as they are, may go hand in hand. It stands to reason that a few ideas about the future—what could and indeed should happen in the next five or ten years or so—may also help us in transacting the business of today and tomorrow. So let me start from the broader picture and come back to questions of more immediate concern in the final remarks.2

1. Creators and their public: from the long route to the short route

  • 3 See Lawrence Lessig, Remix: Making Art And Commerce Thrive In The Hybrid Economy (New York: Pengui (...)
  • 4 For additional references see Marco Ricolfi, ”Individual and Collective Management of Copyright in (...)

2The case is often made that copyright, as we have known it for three centuries (which after all is a brief parenthesis in the longue durée of the millennial history of information technology), may no longer be an appropriate tool for the needs of creators and society in a digital environment. What is the basis for this—arguably bold; but also quite widespread—argument?3 The reply is quite straightforward: in the last two decades or so, the social and technological basis of creation has been radically transformed. The time has come for us to be aware that, in our post-post-industrial age, the long route—which used to lead the work from its creator to the public by passing through different categories of businesses—is gradually being replaced by a short route, which puts creators and the public in direct contact. This development may be sketched as follows.4

  • 5 Such as the bohemian painter personally seeking out patrons in order to sell his paintings or the (...)

3In the analogue word, direct access to the market by creators was confined to a limited number of special cases.5 Otherwise, it could be taken for granted that the intermediation of business was necessary to bring works from creators to markets. In particular, books and records needed to be printed. For this purpose some kind of ”factory” was required to manufacture what in effect were fixed, stable, material or—as the expression now goes—”hard” copies of the work. In turn these hard copies needed to be stored, transported and distributed, before reaching the shelves on which the public would finally find them.

  • 6 See in this connection in W. R. Cornish, Intellectual Property: Patents, Copyright, Trade Marks an (...)

4It was difficult for creators to engage in all these steps; and this is why, as a rule, they preferred to resort to businesses to set up the characteristic trilateral relationship between creator, business and the public, which is typical of primary exploitation of copyrighted works.6 The kind of business that appeared to be indispensable for this purpose had features which the last two centuries made familiar. To begin with, it had to make substantial outlays to figure out whether there was a market for the work, and it had to invest and take large risks for the mass production of material copies of works and for their distribution. This was all done on a scale that increased in step with the extension of the markets. Publishers, film studios and record labels are appropriate cases in point. Radio and television came in to take care of so-called ”secondary” utilization of work. This was a long route to institute contact between the creator and the public; and business was a very valuable, indeed indispensable intermediary to achieve such a goal.

5In the digital environment all this dramatically changes. On the production side, perfect digital copies make ”factories” of physical, material copies of works redundant, at least in principle.7 What is particularly remarkable is that this same development is now reaching the movie industry. Until recently this sector of the entertainment business appeared to be the last bulwark in which capital-intensive business could be considered indispensable. But this is becoming less and less true as each day passes. Jean Cocteau predicted that the tools required for the creation of a movie would at some point in time become as cheap as paper and pencil; and digital technology may prove his vision right.8

  • 9 As noted by Benkler (2004), p. 277.
  • 10 As indeed aptly described by the decision of the US Supreme Court of 27 June 2005, Metro-Goldwin-M (...)

6On the distribution side, a similar if less visible process is taking place. Digital goods that are distributed through the Internet are light rather than heavy, and use up a limited amount of storage space. But even more so because the technological endowment held by the public at the receiving end has in the meantime deeply changed. Even In the past, the consumer had to make an investment in technology, by purchasing a radio or a television set, a record player or a tape recorder. Since the beginning of the digital age, the scale of a minimum unit of the technological endowment at the receiving end—for example, the memory of a PC—has started to be largely in excess of the average needs of the consumer;9 and as a rule each unit is interoperable with all the others. A similar analysis can be reiterated in connection with file-sharing. Whatever legal assessment we may pass of this practice, its ultimate technological ramifications cannot be in doubt.10 Here we have enormous excess capacity residing with the public at the receiving end; and this excess capacity can be mobilized to create distributive networks of extraordinary scale, scope and effectiveness.

  • 11 Both developments had been anticipated a number of years ago: see Eugene Volokh, ”Cheap Speech and (...)

7In this novel context, it would seem that the setting up of a relationship between creator and business no longer has the same compelling rationale it once had. Digital copies are (nearly) perfect; and can be duplicated at no cost at the receiving end. Therefore, in a number of situations both the ”factory” and the physical distribution chain are no longer indispensable.11 Creators can increasingly access markets without engaging in the trilateral relationship that used to be characteristic of dealings in copyright. Indeed, these technological determinants enable creators to make works directly available to the public. It is even more remarkable that an increasingly large number of members of the public are in turn grabbing the opportunity offered by the technology available at the receiving end and transforming themselves into producers and distributors of works.

  • 12 It may be questioned whether cloud computing (on which see Jonathan Zittrain, ”Lost in the Cloud”, (...)
  • 13 On the early beginnings of the phenomenon, when Stephen King set up a website to allow readers to (...)
  • 14 See Networked Publics, ed. by Kazys Varnelis (Cambridge, MA: MIT Press, 2008). For an early apprai (...)

8To make a long story short: both the production and distribution functions migrate from business to the public and there they can rely on excess resources available at each consumption unit. These, if individually of small scale, may be multiplied by very large numbers to provide almost infinite manufacturing and distribution capacity in a way that dwarfs past industry investments and makes them, to a large extent, redundant.12 The stage scenario is changing. Social sharing enters; business recedes. As a result, the long route from creators to the public may at some point become much shorter; and this is happening more and more all the time. Today creators set up their own websites and make books and music directly accessible to the public.13 Currently, user-generated content and social networks are growing exponentially:14 creators and their public are finally merging into each other.

2. The three requirements for a legislative agenda for the digital environment

9What are the implications of this upheaval for the legislative agenda? Of course, we do not know much about the future. So much is changing all the time, and so quickly, that it is impossible to make predictions about the future. Nevertheless we can anticipate with some confidence that production and distribution of works will continue to originate from two different segments. The first is based on business and markets; the other on the production and distribution mode, which is based on decentralized non-market decisions, often referred to as ”social sharing”. This latter group taking the ”short route”—currently encompassing the open content made available by Wikipedia and other wikis, websites offering free music and pictures, blogs, and the massive volumes of other user-generated content—will exponentially grow, dwarfing the market segment based on the ”long route”. These two components of creativity will not be mutually exclusive but will interact.

  • 15 A similar idea would appear to be shared by proponents of ”dual”, ”hybrid” or ”bipolar” systems of (...)

10This is why any agenda for law-making for the digital environment should meet at least three requirements. First, it should incorporate rules that are appropriate not only for the long route but also for the short route.15 Second, it should allow for the ”peaceful coexistence” of the two sets of rules, making them interoperable, in such a way that the continued existence and specific contribution of the two sectors is maximized. Third, obstacles inherited by the past that unduly inhibit the emergence of the short route should be gradually phased out in ways that should minimize the disruption of the workings of the old route.

3. Copyright 2.0: interests and rules

11Against this background, let us think for a moment about the set of rules which would appear to be appropriate to meet the demands of creators operating along the short route.

3.1 The interests

  • 16 Including revenue from product placement embedded in virally disseminated videos (as magisterially (...)

12In the market-based model it was essential for creators and even more so for businesses to control and restrict access to works, as the monopoly granted by expansive exclusive rights enabled them to charge whatever price the market would bear. However, this would not appear to be the goal of creators currently operating along the short route. The great majority of them, be it 9 out of 10 or 95 out of 100, do not make a living out of ”sales” of ”copies” of their works; they earn their livelihood in another activity or business and devote a portion—often a very large portion—of their spare time to creating. These activities may give them a bit of extra income, professional credit and recognition which may have positive spill-over effects in their main line or just fun (or a combination of the three). Even when the creators operating along the short route are professionally engaged in the creation of works, which is usually not the case, their business model is often based on income flows different from simply the sale of copies. There is a shift whereby even singers and songwriters increasingly rely on performances, tours, endorsements, merchandising and the like rather than sales of albums and tracks.16

  • 17 Paul Krugman, ”Bits, Band and Books”, The New York Times, 6 June 2008. This trend seems confirmed (...)

13This is the business model that the Grateful Dead pioneered, possibly taking a clue from open source software and IBM, and is currently expanding to an increasing number of businesses. Economist Paul Krugman made the case that the demise of reliance on an income based on ”hard” copies was being generalized and, making his case, quipped that in the long run we will all be the Grateful Dead.17 What is important for creators engaged along the short route is that their work can be disseminated as widely as possible, on two conditions: first, that the work is correctly attributed to them, and second, that the creators may, if they so choose, reserve the right to prevent third parties from making a commercial profit out of their work unless this is agreed to by the creator herself.

3.2 The rules

  • 18 The question of ”re-formalizing” copyright has come back into discussion in recent times. See Stef (...)

14If this is so, then what may currently be needed is a new kind of copyright, which we may, if you wish, label Copyright 2.0. I submit that the new system would have four basic features. Old copyright, or Copyright 1.0, would still be available; but it would have to be claimed for by the creator at the onset, for example by inserting the old copyright notice, ©, as the US did in the past, before accessing the Berne Convention.18 If no notice was given, Copyright 2.0 would apply; and this would give creators just one right, the right to attribution. The notice could also be added after creation, but then it would only have the effect of giving exclusivity against specified non-authorized uses (in particular: subsequent commercial uses). The Copyright 1.0 protection given by the original notice could be withdrawn, and perhaps it should be deemed withdrawn after a specified period of time (for example, the 14 years of the original copyright protection), unless an extension period (of another 14 years) is specifically requested.

15I confess that, a couple of years after first airing this proposal, I am now not sure that the four features I just described are exactly appropriate for the needs of our present society. The point I am making is that thinking along these lines at least allows us to conceptualize how the different sets of rules correspond to the specific needs of the people who create works along the long and short route. We assumed that Copyright 1.0 should survive; and we may anticipate that this is likely to be resorted to by creators (and businesses) choosing to operate along the long route. Indeed, the ultimate goal is not to displace old copyright, which seems to be alive and well in many situations, but to add to the menu a second possibility, Copyright 2.0, which should be better tailored to the characters of production and distribution of works prevailing in the current digital environment.

  • 19 In November 2009 the Creative Commons Monitor project calculated that more than 207 million webpag (...)

16This line of reasoning might also help us in asking the next question. Which set of rules would then operate in each given situation? Well, in some way I already replied to this question: creators should opt-in for Copyright 1.0 at the time of the original release of their work; otherwise the new and more flexible Copyright 2.0 would operate as a default set of provisions. I characterize this approach as ”Lessig by default” or, in a less personalized way, ”Creative Commons by default”. The idea behind the approach is that the very successful uptake of Creative Commons licenses and other copyleft licenses by creators operating along the short route shows that out there, in the digital prairies and wilderness, there is a very large number indeed of creators who prefer to reserve only some rights rather than all rights;19 and that the time has come for legal systems to recognize this by creating a regime in which downstream freedom is the rule and a system under which creators may have the option to reserve some rights or, if they like, all the old Copyright 1.0 rights.

4. The new international framework and the role of the European Union

  • 20 For a discussion, see Sprigman (2004).
  • 21 See Sam Ricketson, ”The Birth of the Berne Union”, Columbia-VLA Journal of Law and the Arts, 11 (1 (...)

17Of course, to go this way, one would have to change hundreds of laws and a few international conventions (including Berne and TRIPs).20 I do not know that this is an impossibility. I am among those who, at the beginning of the digital age, insisted that it was too early to legislate. However, I believe that the time has now come, and that the EU should take the lead in this regard, for a variety of reasons. First, because it has the legitimacy and the prestige to do it. The same states which are currently EU member states coincide to a large extent with the ones that originally conceived and put in place the Berne Convention;21 today they still have the cultural and international prestige required to take the initiative to adapt Berne to the digital environment. Taking up Copyright 2.0 is in the long-term interest not only of our society and of our culture but also of our economy. To argue the case in a detailed and comprehensive way, one would need multiple interdisciplinary volumes rather than this short essay. Let me therefore confine myself to two short—and admittedly a bit too assertive—points.

  • 22 On the origins of the American idea, swiftly taken up by European trade diplomacy, that the lack o (...)

18In the last three decades, much of IP policy in the developed world has turned around the idea that ratcheting up protection of IPRs is a good idea because it protects by strong property rights assets that typically belong to US and EU right-holders. The other idea is to expand enforcement standards abroad, with a view to boosting revenue generated by exports of IP-protected goods or by inflows of royalties dutifully paid by foreign users. This approach has been put at the basis of the Uruguay Round negotiations, which finally led to the adoption of the WTO and of its IP component, TRIPs.22 It was also quickly taken up by the EU and particularly so in connection with copyright-based products, as if our legacy of artistic creation could be a long lasting source of income flowing into Europe from the rest of the world until the long term of protection expires.

  • 23 Anecdotal evidence from nuclear plants and high speed trains.

19There are several grounds to believe that this strategy is both illusory and doomed. Here, leaving aside that it is easier to let the biblical camel pass through the needle’s eye than to persuade our developing neighbours that strong enforcement of our rights is in their interest, I will only mention the fact that the domestic economies of our business partners have finally reached such a size that their demands that we give them access to our technology and IP as a precondition to our obtaining access to their markets are increasingly successful.23

  • 24 As anticipated by Jerome H. Reichman, ”Legal Hybrids between the Patent and Copyright Paradigms”, (...)
  • 25 For examples of the working of this third paradigm see Arti K. Rai, Jerome H. Reichman, Paul F. Uh (...)

20While IP-based exclusivity protection would (unsurprisingly) appear not to assist our economies as much as our trade negotiators had hoped, I suggest that we would do better to place our bets on the third paradigm of innovation which seems to be emerging: distributed innovation through digital network driven cooperation. In the beginning innovation was the preserve of individuals; at a later stage the engine was to be found in organisations, be they the firms or research entities. Both modes required appropriation of the results of innovation by means of property rights over IP, to provide the incentives to creation. This has changed radically in the last few decades: while classical property rights-based IP protection has increasingly proved unequal to the new challenges of innovation,24 at the same time network driven innovation is seen to thrive in contexts in which exclusivity has been relinquished and is to a large extent replaced by cooperative behaviour among the players, based on a combination of contractual arrangements and liability rules.25

  • 26 But see the refreshing remarks showing that exclusivity is not even today mandated either by Berne (...)

21I submit that our societies may obtain a genuine competitive advantage in fostering innovation based on this third paradigm rather than in insisting on global acceptance of strong IP rights which have in part outlived their function; and that we should consider how to make the best of the new chances offered to us. Reforming old international IP conventions, which are to a large extent based on the assumption of exclusivity, including Berne and TRIPs, should be part of this larger job.26

5. The 2010–2020 Digital Agenda for Europe

22Of course, reforming international conventions takes time. In the past the EU has shown that it is able to take up the challenge of an economic crisis to explore new opportunities for innovation and growth. What are then the intermediate priorities? Which opportunities may we seize now in this regard, while the process leading to Copyright 2.0 and Berne 2.0 is—hopefully—kick-started?

  • 27 See A Digital Agenda for Europe, pp. 6–7, 29–30. The literature on ECL is significantly growing: s (...)

23A Digital Agenda for Europe indicates a number of current priorities that perfectly fit the broader approach I just advocated. First, orphan works should be brought into the fold of the EU digital libraries initiative by means of extended collective licenses.27 Under this mechanism, any right holder may at any time reveal herself and opt out of the regime. Opting out of an extended collective license scheme amounts to opting in to full copyright protection. In this perspective, the orphan works regime would be a good first experiment in the direction of requiring opt-in Copyright 1.0.

  • 28 Robert P. Merges, ”Contracting Into Liability Rules: Intellectual Property Rights and Collective R (...)
  • 29 A Digital Agenda for Europe, pp. 7–8.

24Second, collective rights management organisations (CRMOs) are aptly characterized as a fine example of contracting into liability.28 Individual property rights are pooled into a collecting society, which converts the full property right over the individual work into a pro-rata share of the claim to global compensation agreed in advance with users. What is required in the digital age is that would-be users are not required to go around, hat in hand, to all the twenty-seven EU CRMOs to get from each of them clearance for the service; and that cross-border pan European licensing takes off. The Digital Agenda is rightly looking into this as well.29

  • 30 Ibid., pp. 9–10. The specific copyright issue in the PSI Directive is whether the rules concerning (...)

25Third, public sector information is an essential input for the emergence of the third paradigm of innovation I just sketched out. Maps, geo-data, environmental data-sets, laws, regulations, case law and the like may be brought together across jurisdictions through digital networks and contribute to the emergence of new aggregated information products and services at a pan-European level. The current text of Directive 98/2003 still needs several upgrades to contribute to the goal; its revision is one more of the focal points of the Digital Agenda.30

26If we combine the three ”action plans”, we can see that, while certainly they do not amount—and do not intend to amount—to a roadmap to Berne 2.0, they bring together three components which are vital to reconciling IP and the new digital environment. CRMOs are called to overcome their national limitations to operate cross-border along the routes opened up by digital technology. Orphan works are seen as a possible area for a more flexible statutory license regime, unless their holders show up and opt out of it. The enormous wealth of data sets generated by public sector bodies engaged in their primary function is increasingly made available to the pioneers of the third innovation paradigm.

27Whether these test beds of legislative innovation are to take off in actual legislative innovation and coalesce into a normative environment which brings us closer to a reconciliation of copyright law and the digital environment, we do not know yet. I surely hope so.

Notes

1 See European Commission, A Digital Agenda for Europe, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM (2010) 245, Brussels (19 June 2010), available at http://ec.europa.eu/information_society/digital-agenda/documents/ digital-agenda-communication-en.pdf.

2 In sketching out the broader picture, I draw on the final section of my paper ”Copyright Policies for Digital Libraries in the Context of the i2010 Strategy”, presented at the first Communia conference, Louvain-la-Neuve, Belgium (1 July 2008).

3 See Lawrence Lessig, Remix: Making Art And Commerce Thrive In The Hybrid Economy (New York: Penguin, 2008); Volker Grassmuck, ”The World is Going Flat(-Rate): A Study Showing Copyright Exception for Legalizing File-Sharing Feasible as a Cease-Fire in the ‘War on Copyright’ Emerges”, Intellectual Property Watch, 11 May 2009, available at http://www.ip-watch.org/weblog/2009/05/11/the-world-is-going-flat-rate; Philippe Aigrain, Internet and Création: Comment Reconnaître les Échanges sur Internet en Finançant la Création (Cergy-Pontoise: In Libro Veritas, 2008); Yochai Benkler, ”Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production”, Yale Law Journal, 114 (2004), 273–358. A very open minded approach is also advocated by the speech made by WIPO’s Director General, Francis Gurry, ”The Future of Copyright”, Sydney (25 February 2011), available at http://www.wipo.int/about-wipo/en/dgo/ speeches/dg_blueskyconf_11.html. A theoretical framework to the re-orientation of the assessment of the rules concerning information products is arguably provided by the literature devoted to common pools resources and more specifically to its extension to knowledge and information commons; see in this connection Charlotte Hess and Elinor Ostrom, ”Introduction: An Overview of the Knowledge Commons”, in Understanding Knowledge as a Commons: From Theory to Practice, ed. by Charlotte Hess and Elinor Ostrom (Cambridge, MA: MIT Press, 2007), pp. 3–26.

4 For additional references see Marco Ricolfi, ”Individual and Collective Management of Copyright in a Digital Environment” in Copyright Law: A Handbook of Contemporary Research, ed. by Paul Torremans (Cheltenham: Edward Elgar, 2008), pp. 283-314 (pp. 285, 308–14).

5 Such as the bohemian painter personally seeking out patrons in order to sell his paintings or the wandering gipsy carrying around his violin.

6 See in this connection in W. R. Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (London: Sweet & Maxwell, 1996), p. 401.

7 It may be argued that this is true only for additional copies, the ones which can be costlessly multiplied after what we could call the initial embodiment, the prototype or the ”master” has been first created; and to this it may be added that, for the latter, the required investment still is huge. This objection has indeed been raised a number of times, for example by Paolo Auteri, ”Il paradigma tradizionale del diritto d’autore e la nuove tecnologie” in Proprietà digitale: diritti d’autore, nuove tecnologie e Digital Rights Management, ed. by M. L. Montagnani and M. Borghi (Milan: Egea, 2006); but the case becomes less and less defensible as the time passes. The role of software and of digital technology in the creation and initial fixation of music is increasing all the time; and their cost is decreasing in parallel.

8 See, for example, Open Source Cinema: http://www.opensourcecinema.org.

9 As noted by Benkler (2004), p. 277.

10 As indeed aptly described by the decision of the US Supreme Court of 27 June 2005, Metro-Goldwin-Mayer Studios Inc. et al. v. Grockster, Ltd. et al., 125 S. Ct. 2764 (2005). On the potential for distribution offered by open spectrum access see Lawrence Lessig, The Future of Ideas: The Fate of The Commons in a Connected World (New York: Vintage, 2002), pp. 78, 218, 240.

11 Both developments had been anticipated a number of years ago: see Eugene Volokh, ”Cheap Speech and What It Will Do”, Yale Law Journal, 104 (1995), 1805–50; and Ithielde Sola Pool, Technologies of Freedom (Cambridge, MA: Belknap, 1983), pp. 249–51.

12 It may be questioned whether cloud computing (on which see Jonathan Zittrain, ”Lost in the Cloud”, The New York Times, 20 July 2009; and the Expert Group Report, The Future of Cloud Computing: Opportunities for European Cloud Computing Beyond 2010, available at http://cordis.europa.eu/fp7/ict/ssai/docs/cloud-report-final.pdf) reinforces or calls into question the direction of this process: software-as-a-service, infrastructure-as-a-service and platform-as-a-service slim down the amount of technology which both businesses and the public require in order to generate and access content; and possibly announce the emergence of a new generation of powerful intermediaries.

13 On the early beginnings of the phenomenon, when Stephen King set up a website to allow readers to download his latest short story, ”Riding the Bullet”, at US $2.50 per download, see Jason Epstein, ”The Rattle of Pebbles”, The New York Review of Books, 27 April 2000, pp. 57–58.

14 See Networked Publics, ed. by Kazys Varnelis (Cambridge, MA: MIT Press, 2008). For an early appraisal see John Horrigan, ”Home Broadband Adoption 2006”, 28 May 2006, available at http://www.pewinternet.org/Reports/2006/Home-Broadband-Adoption-2006.aspx.

15 A similar idea would appear to be shared by proponents of ”dual”, ”hybrid” or ”bipolar” systems of protection which have been cropping up in the recent past. See Christoph Geiger, ”Promoting Creativity Through Copyright Limitations: Reflections on the Concept of Exclusivity in Copyright Law”, Vanderbilt Journal of Entertainment and Technology Law, 12 (2011), 515–48; and Alexander Peukert, ”A Bipolar Copyright System for the Digital Networks Environment”, Hastings Communications and Entertainment Law Journal, 28 (2005), 1–80. For a theoretical frame of reference, see Hess and Ostrom (2007).

16 Including revenue from product placement embedded in virally disseminated videos (as magisterially shown by Lady Gaga).

17 Paul Krugman, ”Bits, Band and Books”, The New York Times, 6 June 2008. This trend seems confirmed by the current behaviour of ”traditional” businesses, which are indeed seeking to obtain a share of these novel income streams: see John Gapper, ”The Music Labels Can Take a Punch”, The Financial Times, 3 July 2008, noting that labels have started ”to get a slice of the action from the artists’ other earnings, including live performances and merchandising”. Accordingly, ”Universal is taking a share of touring and merchandise revenue in 90 per cent of contracts it signs with new artists”.

18 The question of ”re-formalizing” copyright has come back into discussion in recent times. See Stef van Gompel, ”Formalities in the Digital Era: An Obstacle or Opportunity?”, in Global Copyright: Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace, ed. by Lionel Bently, Uma Suthersanen and Paul Torremans (Cheltenham: Edward Elgar, 2010), pp. 395–424; and Christopher Sprigman, ”Reform(aliz)ing Copyright”, Stanford Law Review, 57 (2004), 485–568. The idea of a copyright notice is being upgraded into the notion of global copyright registries. Today registration may become a precondition for protection, as state-of-the art technology enables the creation of global digital repositories. This gives security to the digital files that embody the works and to the identity of the person or entity claiming copyright. It also makes the corresponding filings user-friendly and inexpensive. If one were to consider that making registration into a global registry, rather than notice, a precondition for protection is too harsh a requirement, then registration might at least be required as a precondition of extension of protection.

19 In November 2009 the Creative Commons Monitor project calculated that more than 207 million webpages had been licensed under some Creative Commons Public License.

20 For a discussion, see Sprigman (2004).

21 See Sam Ricketson, ”The Birth of the Berne Union”, Columbia-VLA Journal of Law and the Arts, 11 (1986), 9-32.

22 On the origins of the American idea, swiftly taken up by European trade diplomacy, that the lack of global IP protection and enforcement amounts to a ”trade barrier” see Paul A. David, ”Intellectual Property Institutions and the Panda’s Thumb: Patents, Copyrights, and Trade Secrets in Economic Theory and History” in Global Dimensions of Intellectual Property Rights in Science and Technology, ed. by Mitchell B. Wallerstein, Mary Ellen Mogee and Roberta A. Schoen (Washington, DC: National Academy Press, 1993), pp. 19–62; and Global Business Regulation, ed. by John Braithwaite and Peter Drahos (Cambridge: Cambridge University Press, 2000), p. 61.

23 Anecdotal evidence from nuclear plants and high speed trains.

24 As anticipated by Jerome H. Reichman, ”Legal Hybrids between the Patent and Copyright Paradigms”, Columbia Law Review, 94 (1994), 2432–558. For a confirmation of the shortcomings of the classical approach in the new technological environment, see Michael A. Heller, ”The Tragedy of the Anticommons: Property in the Transition from Marx to Markets”, Harvard Law Review, 111 (1998), 622–88; and Michael A. Heller and Rebecca S. Eisenberg, ”Can Patents Deter Innovation? The Anticommons in Biomedical Research”, Science, 280 (1998), 698–701. For a review of the relevant literature, see Marco Ricolfi, ”Is There an Antitrust Antidote Against IP Overprotection within TRIPs?”, Marquette Intellectual Property Law Review, 10 (2006), 305–67.

25 For examples of the working of this third paradigm see Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir and Colin R. Crossman, ”Pathways Across the Valley of Death: Novel Intellectual Property Strategies for Accelerated Drug Discovery”, Yale Journal of Health Policy, Law, and Ethics, 8 (2008), 1–36 (in connection with drug discovery) and Jerome H. Reichman and Paul F. Uhlir, ”A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment”, Law and Contemporary Problems, 66 (2003), 315–462.

26 But see the refreshing remarks showing that exclusivity is not even today mandated either by Berne and by TRIPs in Geiger (2011), p. 544.

27 See A Digital Agenda for Europe, pp. 6–7, 29–30. The literature on ECL is significantly growing: see Tarja Koskinen-Olsson, ”Collective Management in the Nordic Countries”, in Collective Management of Copyright and Related Rights, ed. by Daniel Gervais (Kluwer Law International, 2006), pp. 257–81; and the literature quoted in Grassmuck (2009).

28 Robert P. Merges, ”Contracting Into Liability Rules: Intellectual Property Rights and Collective Rights Organisations”, California Law Review, 84 (1996), 1293–393.

29 A Digital Agenda for Europe, pp. 7–8.

30 Ibid., pp. 9–10. The specific copyright issue in the PSI Directive is whether the rules concerning government IP right may help or hinder the process, as illustrated in detail by Estelle Derclaye, ”Does the Directive on the Re-use of Public Sector Information Affect the State’s Database Sui Generis Right?”, in Knowledge Rights: Legal, Societal and Related Technological Aspects ed. by J. Gaster, E. Schweighofer and P. Sint (Austrian Computer Society, 2008), pp. 137–69.

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