Licensing is the Flawed “Silver Bullet” to Copyright Problems

In one sense, we were glad to see Michel Barnier, a member of the European Commission responsible for Internal Market and Service, acknowledge last week at a speech in Brussels that European copyright doctrine should mesh with the realities of today’s Internet. We will no doubt see reams of analysis in the coming days and weeks, but even a cursory look at his remarks shows a troubling reliance on licensing as the silver bullet that will solve most problems.

While Barnier insisted that he is “determined to ensure that copyright is not among the obstacles” to a dynamic and open Internet, his failure to adequately consider limitations and exceptions would actually cement copyright as just such an obstacle.

Indeed, limitations and exceptions to copyright have a very important role to play. Without them, many fundamental uses of copyrighted material would simply not be possible. Consider digital preservation and archiving, user-generated content, parody and satire, Internet search and data mining. It’s hard to see how a myopic reliance on licensing wouldn’t hobble these kinds of activities with a mess of permissions and fees.

Barnier’s logic is porous when he suggests that financial interests will guide the way in this licensing panacea. He seems to think that if you are building on someone else’s work, there will naturally be profit involved somewhere along the line, and so this profit should be shared. What this overlooks, of course, is the massive scale of online creativity that has nothing to do with money. Just think about the routine sharing and mash-up projects on social networks like Facebook and Twitter, with their often casual reworkings of existing material, and you begin to get the idea.

Barnier’s speech suggests that instead of looking at copyright reform with an open attitude on problems and solutions, the Commission could instead revisit the Copyright Directive with a preemptive conclusion that licensing schemes are the only road to a prosperous Internet.