A bipolar system of copyright in the Internet environment
By
Marinos Papadopoulos
Attorney-at-Law J.D., M.Sc., Ph.D. (cand.)
PATSIS, PAPADOPOULOS, KAPONI & ASSOCIATES (Attorneys-at-Law)
Founding Member & Member of BoD of Open Knowledge Foundation Greece
Legal Lead Creative Commons Greece
6th International Conference on Information Law & Ethics
Lifting Barriers to Empower the Future of Information Law and Ethics
University of Macedonia
Thessaloniki, Greece, May 30-31, 2014

A levy/tax system for Copyright
 Copyright in the digital environment should be replaced by a
system of levies/tax
 An alternative approach that gets artists paid while making file-
sharing legal
 A levy/tax system that resembles a lot the blanket licensing
solution
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

A levy/tax system for Copyright—various proposals
 Prof. Neil Netanel: a non-commercial use levy
 Prof. William Fisher III: an administrative compensation system
 Prof. Jessica Litman: a sharing and hoarding system
 Prof. Alexander Peukert: a bipolar Copyright system
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

A bipolar system for Copyright
 Securing for the right-holder the freedom to choose among given
options:
 Option 1: the exclusive, proprietary exploitation of Copyright on
the basis of DRM
 Option 2: the participation in the levy/tax system which allows
non-commercial file-sharing for a fee (levy/tax)
 The bipolar system allows the rightholder to earn a levy/tax
share by accepting certain privileges of users, i.e. the non-
commercial use of works in file-sharing systems.
 The bipolar Copyright system is an additional compensation
mechanism to what is available today.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

Scenarios in the bipolar system for Copyright
 First Scenario: The choice of options is made at the time of first
publication of the work.
 Second Scenario: The choice of options is made after the time of
first publication of the work—the rightholder withdraws the work
from one system and releases it into the other after the first
publication of the work.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

First Scenario
 Authors might want to opt for a levy/tax system which caters for
the distribution of the work as a digital file in P2P networks once it
has been registered as eligible for such a distribution.
 It may be useful to unknown authors, artists and scientists, but
also may sound an appealing option for the well-known and
established creators who make the decision to release a single piece
(sample, single etc) of their work via the levy/tax system while the
main corpus of it will become available via DRM protection
through the Copyright proprietary system.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

Second Scenario
 Works are channelled from one system to another after the time
of their first publication.
 Two Variants.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

Second Scenario—Variant One
 The creator of a work that is available in the market for
proprietary exploitation and on the basis of DRM protection may
opt for allowing the non-commercial use of his/her work via the
P2P networks after said work is assessed to have fulfilled its
commercial lifecycle.
 The creator achieves in making additional revenue after the
assumed fulfilment of the commercial lifecycle of the work in the
market.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

Second Scenario—Variant Two
 The creator of a work released for non-commercial use via the
P2P networks, decides to switch to proprietary exploitation of said
work after its release via the P2P networks.
 It could happen for a work which has already sparked great
interest in the market as of its first publication for non-commercial
use via the P2P networks.
 Leverage on technology to deter users from further sharing in the
levy/tax system.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

The legal default in the bipolar system
 Which system should become the legal default, i.e. the levy/tax
system, a.k.a. the free non-commercial file-sharing status or the
proprietary exploitation system enhanced with DRM, a.k.a. the
option favouring exclusivity and enhanced with technical control
means?
 The opt-out or the opt-in system for the bipolar Copyright should
be the legal default?
 If the right holder had to opt out of the levy/tax system in order
to enjoy full exclusivity, it could be argued that this model in
Peukert’ proposal would establish a formality requirement and thus
would not be compliant with article 5§2 of the Berne Convention
according to which the employment and the exercise of the
Copyright shall not be subject to any formality.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

No conflict with International legal framework
 The opt-in model for a levy/tax system does not seem to conflict
with international treaties’ obligations. It does not limit the
enjoyment or exercise of exclusive rights by Copyright law.
 This model only gives the Copyright owner an incentive to
accept lawful non-commercial file-sharing by providing a
distribution channel where “compensation without control” but
with monitoring of traffic that does not violate privacy rules and
legislation can become a reality.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

Funding the implementation of the bipolar system
 The bipolar system presents probably as an easier option to fund
its implementation compares to others such as the model of
collective licensing proposed in 2003 by EFF.
 The opt-in levy/tax model for legal non-commercial file-sharing
and use does not depend upon the readiness of consumers to pay
any subscription fee—there could be no such fee—but it leverages
on the imposition upfront of an increased price tag for the purchase
of products and services which are necessary to users for file-
sharing activity and of which the value is increased by the same
mere fact of their necessity for extended file-sharing.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

Amend international law
 Technology and private licensing alone, though they may
provide for some temporary solutions to the vexing problems of
Copyright, yet they cannot guarantee a solution at the public policy
level be it at national or supranational levels.
International instruments, such as the Berne Convention, the
WIPO treaties, and the InfoSoc Directive—to name a few—need to
be amended in order to proceed on the assumption that national
laws will take due care of the public interest and cater for a
balanced regulated framework for Copyright in the technologically
sophisticated Internet-networking online environment. International
copyright law has to be considered in any discussion about the
future of copyright in the digital network environment.
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece

Thank you!
A bipolar system of copyright in the Internet environment
6th International Conference on Information Law & Ethics
Lifting Barriers to Empower the Future of Information Law and Ethics
University of Macedonia
Thessaloniki, Greece, May 30-31, 2014
Marinos Papadopoulos | 6th ICIL 2014, May 30-31, 2014, Greece