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In Sharing and Stealing, a copyright paper now in draft for comment, Wayne State law professor Jessica Litman favors a more efficient way of compensating musicians.

Litman, author of Digital Copyright and one of the country’s most respected authorities on digital intellectual property, compares the vibrancy of fact-exchange on the Net (facts per se aren’t copyright protected) with the barriers inhibiting mass enjoyment of digital music (protected).

She would like the law to require copyright owners to identify their works in special ways if they wanted copyright protection under a traditional approach rather than through payment via an otherwise compulsory licensing plan.

Not that she is anti-creator. Just the reverse! Among other things, she notes that current laws and the rigid practices of the recording studios already limit the options available to creators. Quite correctly she observes:

The proposals to enact a new license to permit peer-to-peer file sharing and compensate creators through a levy, tax, or uniform royalty have inspired heated philosophical and economic debates over the flaws in any compulsory or collective licensing system. The objections tend to ignore the fact that composers and performers of music currently receive most of their income through a combination of standardized, compulsory and collective licenses administered by intermediaries (music publishers, record companies, performing rights societies) in return for payment. From the vantage point of music creators, replacing the theoretical control they enjoy under the copyright law with an enforceable promise of payment makes them no worse off, and makes most of them better off.

The intermediaries who hold control over musical works and recordings are also in it for the money, and one might expect them to be delighted to hand over their control in return for more cash. Not a bit of it. The current dominant forces in the music and recording business may no longer need record pressing plants, CD burning plants, warehouses and trucks to distribute music, but they have a huge stake in ensuring that digital distributors be limited to those who used to rely on record pressing plants, CD burning plants, warehouses and trucks. They rest of us, however, don

 
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