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Reform, and the Proposal for the Digital Copyright Exchange

1 April 2012 - 31 October 2012

PI/s in Exeter: Professor James Griffin

Funding awarded: £ 1,275

Sponsor(s): The Society of Legal Scholars

About the research

In copyright law, publishers have been an extremely powerful group. They have influenced the scope and duration of copyright through lobbying, and numerous significant copyright judgments have been based around the competing interests of publishers. Through this, a norm has developed that licensing is generally a permissible activity so long as it does not fall afoul of the 'restraint of trade' doctrine.

However, in 2006 the Gowers Review of Intellectual Property found that the clearing costs for copyright were hurting the development of the music industry. In turn, partly in response to this, in May 2011 the Hargreaves Review recommended to the Government that the UK should establish a Digital Copyright Exchange (hereafter 'DCE'). The aim of this research is twofold: to establish what stakeholders would like to see from the DCE in terms of licensing, and to then question the degree to which this could alter the historical copyright balancing exercise.

Newspaper articles have already revealed that stakeholders have radically different ideas as to what the role of a DCE should be. Rights collecting societies and music publishers have emphasized the need for an easily operable licensing scheme to combine together their catalogues. Meanwhile, those who represent smaller publishers have emphasized that the system should be free and not lead to a two-tier copyright system. Journalists have argued that the DCE could undermine their independence, because it could provide them with a situation where they have to license works before commenting upon them.

The rise of the DCE raises a number of issues concerning the role of traditional publishers with the copyright balancing exercise. Publishers have traditionally been the most powerful group within the copyright regulatory system, and cases concerning balancing have often emphasized the interests of that group, because many cases are brought between publishers. A DCE might change that situation, as authors can make their works easily identifiable through it.

A DCE can also be involved in setting licensing rates, which may also make license-clearing easier to achieve for those who are less financially able. A change to the copyright balancing exercise could result in changes to the perceived rationality of law by the various stakeholders involved.