It is important to note the complexity of licensing and collective copyright management in the light of evolving end-user environments. Campaigns against piracy, for example, place the onus of protecting creators' rights on users' individual behaviour. However, the reality is more complex than that. Users respond to prices, availability and what they regard as fair in terms of conditions of usage of cultural content. A partially dysfunctional licensing system, together with the lack of know-how and resources to develop pan-European systems of licensing, the disadvantaged position of weaker, that is smaller, repertoires in an unregulated cultural market and predatory behaviour of key actors towards creators in the chain of production, create unfavourable conditions for the sustenance of content of cultural diversity. The argument that the market 'finds its rhythm' based on supply and demand is highly problematic when the conditions for the availability of music works do not allow for a wide provision of content across the broadest possible territorial coverage, not because of technological but because of structural impediments.
DRM as a mechanism of controlling final users' behaviour over content ultimately punishes those users who have purchased digital and physical copies, but does not seem to deter those who have not from using other means to access content. Collecting societies here may not have a central role to play, as DRM, applied through technological restrictions, is controlled by music publishers. However, earlier in the preparation of 'content bundles' licensed in multi-territory terms, collecting societies can play an important role in advising their members and in taking a leading position to make more and more diverse content available.
The EU has entered the field of collective rights management with delay and only, it seems, as an afterthought of intellectual property legislation. It remains to be seen whether the new Directive on collective rights management will correct some of its most challenging aspects in music and in particular to what extent cultural diversity will be served. Some positive change towards more transparency in the operations of collective management organisations is welcome, as are some measures that support right-holders' rights. However, it is not clear whether these provisions will enhance cultural diversity in Europe in the area of music production and circulation. First, evaluations of the possibility for more cultural diversity are not overly optimistic. In the past few decades, Europe has seen concerted efforts in the cultural policy field to promote cultural diversity as an economic necessity, through which more jobs in the cultural industry will ensure a flourishing sector, as well as a political aim in that European integration is inherently connected to the diversity of European nations and peoples. Perhaps nowhere else than in sounds, music, songs and audio material generally is this diversity to be found, as audio products are ubiquitously used in all social, cultural and commercial situations, from radio to films, from events to shopping and so on. At the moment, the 2014 Directive does not seem to provide those tools that would allow smaller and specialised repertoires to find larger audiences and cross borders with cost-effective solutions.
Distributive corrective aims have not been prioritised in considering creators in precarious conditions of employment and revenue generation, nor in considering end-users of music and cultural content. The Directive has also maintained a limited and unenlightened view of cultural citizens, and their rights to access and use culture and information, and refers to them only in their roles as consumers.
- 1. Law 23/2006, http://www.boe.es/boe/dias/2006/07/08/pdfs/A25561-25572.pdf (accessed 7 May 2013), 25561-25572.
- 2. Law 2009-66, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTE XT000020735432&fastPos=3&fastReqId=1896908772&categorieLien=id&old Action=rechTexte (accessed 2 February 2014).
- 3. For a brief account of arguments for and against copyright enforcement in the digital age see the entertaining - but informative - dialogue on copyright by Rosenthal and Hanson (2007).