Licensing the Cloud
Daniel Gervais

ALAI Congress
Kyoto, October 2012

The Cloud• Almost every bit of human culture, everysong, book, document and movie ever madewill be in the Cloud• Reduces the perceived need for individualcopies• General depository for both commercial andprivate content• Increasing amount of user-generated content

Regulatory Challenges• Mainframe -> Client/server– Both communication infrastructure– Separation of “content”/carrier• Cloud– Amalgamation paradigm– Service providers and content increasingly close

Cultural Challenges• Culture defined here as the store of meanings that wehave available to make sense of and critique our world– Think of meanings embedded in films, music, books, andnewer formats of cultural dissemination• At no point in history has there been a wider and more
open “store”• This should/could lead to more global or at least nongeographically bounded memes to emerge• Authors have access and are influenced by “foreign”
memes in a way that might make “foreignness” itself avery different notion

COPYRIGHT, YOU ASK?

Exclusiveright
Individual licensing

Private copying, education
etc.

“No” or transaction

The traditional view of economic rights

Exception

Exclusive
right
Individual licensing

Compulsory
licensingPrivate copying, education
etc.

“No” or transaction

The traditional view of economic rights

Exception

The traditional view (corrected)

Exclusive
Right(“No” ortransaction)

Use with
Remuneration

Exception

The traditional view (corrected)

Exclusive
Right(“No” ortransaction)

Use with
remuneration

Moral rights

Exception

The traditional view (corrected)

Exclusive
Right(“No” ortransaction)

Use With
Remuneration

Exception

The traditional view (completed)
Use with remuneration

Negotiation for
individual work

Negotiation forrepertory

No negotiation

Collective
management
Exclusiveright

Or simply $/¥Exception

Compulsory
licenseWittem compatible

What should be our“Guiding Assumption”?
• Should our guiding assumption be:– We say “No”
• Because all works may be commercially exploited andanything other than “no” interferes with normal
exploitation– In the Cloud, can and should “no” continue to be
the default?
• i.e., technological and normative inquiries– Should we maintain this assumption if a work is
out-of-print, not commercially published etc.?

Guiding assumption• Shouldn’t we assume that Authors wish tohave their works used?
• But that many of them want
– Attribution, and– Remuneration• Should our default be “no”, or “yes but”?

In other words• Should the priority be to maximize authorizeduses or minimize unauthorized uses

Lessons from File-sharing• The Internet is difficult to stop
– It was designed that way!

• “3 strikes”/graduated response has lowered
illegal activity– But much less than anticipated (France)– And it is driving certain users below the radar(DarkNet & Usenet accounts, cyberlockers, IP proxiesetc.)– By how much has it increased industry income?
– At what cost?

Learning from the Lessons• Each user may need a license– Should more unlicensed use will become norm?

• Revenue is up– Where institutional or other forms of licensing is available• Revenue is down
– When behavioral changes are required– Especially those that do not conform to “social norms”• The market does not work well for re-uses– UGC is huge licensing challenge (and raises fair use issues)– Collectives must cooperate or new licensing entities will emerge
from market forces– This is not easy to doCoase Theorem• “Transaction costs may lead to a different
allocation of rights”• Normatively, what allocation works best here?
– Saying “no” because one cannot say “yes” due totransaction costs– Or letting it be used for free (the current rule formost online uses)– Or something else?

The proposed view:
The collective model
Negotiation forindividual work

Educational materials No negotiation
YouTube and Reuse license (UGC)

ExclusiverightException
Use with remuneration

MostInternetusesMy “axiom”• Value on the internet is not created by scarcity(the traditional paradigm applicable to physicalembodiments of copyright works) but by the
number of connections between works and users
who value them most
• Huge long tail• Challenge for authors is to be found• Social sites are key; but how much
– Frictionless sharing/– Isn’t “sharing” deliberate act of self-actualization?

Conclusions• Collective management should grow fast
– But transparently and efficiently– Requires focused regulation• If CMOs fail, then the Internet as a market is likely to fail formany types of works and many authors– Especially professional authors• Yet the Internet is the largest and most efficient repositoryand distribution infrastructure ever made available• Collective management can greatly reduce transaction
costs• In many cases, “yes, but” is a better alternative to free than“no”

どうもありがとう