A bipolar copyright system for the digital network environment

Abstract

The article describes a future copyright system for the Internet according to which the copyright owner is free to choose between exclusive exploitation on the basis of digital rights management and a business model where users may lawfully share the work for non-commercial purposes in peer-to-peer networks in exchange for an indirect payment through a levy or tax. This model is derived from an analysis of current proposals pleading for an adoption of levies or taxes in the digital network environment. The article explains that all of these currently discussed models violate international treaties on copyright (the Berne Convention, the TRIPS Agreement, the WCT), because they fail to acknowledge that these treaties mandate exclusive rights and anti-circumvention provisions as the statutory default in national copyright law. However, national copyright law would be compliant with these treaties if it left exclusive rights plus anticircumvention rules intact but gave copyright owners an incentive to opt for compensation without control by establishing a levy or tax system that was only available for those right holders who voluntarily registered their works for this alternative compensation system. As the article shows, such a bipolar copyright system (exclusivity on the one hand, a levy or tax system on the other) would address most of the concerns articulated by copyright pessimists without denying authors the right to decide about the use of their work on the Internet. Most importantly, it could be implemented immediately without having to amend international copyright law.