About André Beemsterboer: Mr. Beemsterboer is director of CEDAR. CEDAR stands for the center for services for the management of copyright and related rights. CEDAR offers facilitative services to holders and licensees of copyrights and neighbouring rights, including the collection and distribution of licence and other fees, advice and a one-stop shop for multimedia producers. Seven Dutch collecting societies are clients of CEDAR. You can contact him via the CEDAR website at: http://www.cedar.nl

INDICARE: Mr. Beemsterboer, supposed I am an author and member of a collecting society, and I decide to switch from collective rights management to individual rights management, using DRM. Am I free to do so, or does the collecting society also has to have a word in this?

A. Beemsterboer: If you are member of a collecting society, you will usually have to consult with the collecting society first before managing your rights individually. Of course, this also depends on the kind of collecting society, the category of works and the kind of relationship between collecting societies and authors. With some collecting societies, authors have the possibility to keep some rights and manage them individually, with others not.

In general my feeling is that collecting societies should create a possibility for individual authors to have categories of exploitation which they would like to do themselves. We should be aware, however, and I already know that this is not a popular subject, that there are still major user groups that take disadvantage of authors. They pressure authors who manage their own rights, to give away a licence at unfavourable conditions, or even for free. In principal, collecting societies have developed as safe havens for individual authors. Authors should be aware of the fact that if they step out and manage their rights individually this can have advantages, but it can be also dangerous for them.

INDICARE: If I decided instead to use a Creative Commons (CC) licence, would you warn me, too?

A. Beemsterboer: I think that CC is very good as a principle. I do not think that CC is an important instrument for usage on a large scale. One of my points of criticism is that CC creates the feeling that no authorisation is needed at all. And I don't agree with that. Also with CC, you still need authorisation from the owner, because also with CC, the author still wants to maintain a certain degree of control over how his work is distributed, and that his name is mentioned. This means that there are certain licensing conditions in the CC that need to be maintained and monitored. To put it very bluntly, the only difference between a collecting society and the collective use of CCs is money. With one, you get money, with the other not. CC lacks a monitoring mechanism. Who is going to check whether the licensing conditions are met, and who is going to pay for the costs of monitoring? The author?

INDICARE: I see. Let us return to DRM. I currently have the impression that is often not even the author who would like to use DRM, but the music publishers or producers.

A. Beemsterboer: That is correct. In many cases it is the record company or the producer who will invest in DRM, not so much the author. Actually, I do not believe that the individual author is willing to deal with multi-usage of his works through DRM. What authors want to do is to create, to write, to paint or to photograph. Rightsholders are not in the business of using DRMs for the administration of their rights. That is why they created collectives.

INDICARE: One could go even one step further and claim that there are situations in which the use of DRM is not in the interests of authors at all. I am thinking, for example, of the case of the new CD from Beastie Boys "The Five Boroughs" that was distributed by EMI with DRM protection. The result was that Beastie Boys received angry criticism from their fans, and judging from the discussions on their site they probably lost a number of dedicated fans, too.

A. Beemsterboer: I agree with you on that.

INDICARE: Then let me ask you this: suppose, an author comes to you and tells you that he does not wish that DRMs are used to protect his work. He asks you to, please, consider this when you make a licence deal with a producer or record company. What will you answer him?

A. Beemsterboer: If an author would say that he does not want individual users to be hunted down for illegal use that is fine. But I would ask the author why? If we do not hunt down the first illegal user, we will be confronted with many more illegal users in a month’s time. I am not going to say that I will hunt users down and shoot them. But collecting societies can only maintain their position if they have the possibility to say that if something goes wrong we have the right to sue. If we did not have any power at all, collecting societies would not exist. Also authors have to accept the principle of copyright, which is: if I have created something I am the one to decide what to do with it. In the end, it is the author who must decide what others can do with his work. If he wants everybody to use his work as long as his name his under it, that is fine. But how will the author control that his individual conditions of usage are met?

INDICARE: On the other hand, this still does not solve the problem of the author that he risks imbalances between his interests in not using DRM, and the interests of record companies or producers in using DRM.

A. Beemsterboer: There is certainly an interesting relationship between record companies, producers, broadcasters, who are rightsholders themselves, and between the creative author and the collecting societies. It has always been a very feeble balance between the three parties. DRMs and the internationalisation of the distribution of entertainment products will have a major influence on that delicate balance. And I am absolutely positive that there will be an imbalance for a certain period. After that a new balance will be found. This balance will involve the same players, but they might have changed roles. Some of these newly found balances will go to the detriment of the structure of some collecting societies, but also to the detriment of the position of some of the major publishers, bigger record companies and film producers. I think they will loose influence in certain markets and in certain areas; authors, or rather: groups of authors, will gain. And collecting societies have a role to play there. Otherwise, authors will turn away from collecting societies because they feel that collecting societies belong to the old world.

INDICARE: Could you go a bit more in detail what you mean when you say that the balance will change?

A. Beemsterboer: One of the elements of the changing balance is that for certain usages, there will not be a collective that represents the whole world repertoire. The repertoire will be split up, and groups of authors will manage it. This means that the ones who want to use the music will be confronted with many different parties and different rates. In the future, there will be more differentiation for certain works and certain forms of usage. Contents will be produced and marketed in a different way. It is going to be a fascinating time.

INDICARE: This means: more collective societies offering more differentiated services?

A. Beemsterboer: Yes. Of course, there is the risk that the variety of all these different platforms will be inefficient. But because the collectives will use DRM and other technologies, their services will be easy to access and the works easy to license.

INDICARE: This is interesting. So far, the discussion of collective and individual licensing concentrated primarily on the question of what will it be in the future: DRM or collecting societies. You seem to suggest that there will be a third option: collecting societies using DRM?

A. Beemsterboer: That is exactly what I think. In my view, collecting societies need to develop new services. The basic service now is the collective management of large portions of repertoire for big users. If collecting societies want to stay alive in the future, they will need more flexible services. Let us take the case that someone comes to me and says that he wants to develop a website with this logo, with audiovisual content, a background and news articles. Usually, he would need to go to several addresses to do that. What I want to do as a collecting society is to be a broker in licenses. And in order to be a broker in licences I need DRM so that I am able to identify works and identify rightsholders. This does not mean that authors would necessarily have to assign exclusive rights to the collecting society. Instead, the author could give the collecting society a mandate to play the broker role. The broker role will be in the future an additional role for collecting societies, next to the existing basic services. If collecting societies do not develop this broker role, authors will go away and do it themselves. Or they will organise themselves in other collectives.

INDICARE: In other words, collecting societies would act as a sort of intermediary between the author and the market?

A. Beemsterboer: Yes, next to anybody else who wants to play the same role, like distribution companies or authors themselves.

INDICARE: Is this already the reality, will it become the reality or are we talking science fiction?

A. Beemsterboer: It is not a reality yet, but we are also not talking science fiction. At the moment, we are developing that broker role. In the course of next year, the first products should be on the market. Collecting societies will then offer not only licensing services, they will extend their range of activities and take also the role of, for example, a distributor of digital content. One can imagine this like a portal or a platform for authors to meet with users: authors can join the portal and use its distribution infrastructure. They can also decide to commission collecting societies to collect the money for them, or to use DRM, or to maintain their moral rights, or to negotiate for them. Rightsholders can then choose from a whole range of services.

INDICARE: Have you already decided on a particular DRM? Will you choose an open or a proprietary standard?

A. Beemsterboer: Not yet. But I also do not want to be bombarded with all kinds of different systems and software packages. I will seek the advice from an expert without being brainwashed for two hours about all kinds of software.

It is also too early for me to say whether I will choose an open or a proprietary standard. Of course, I will use the DRM technology that will ensure that the market coverage is high enough, and that the licensing conditions for using that technology are fair.

INDICARE: If collecting societies embrace, as you say, DRM, do you see a future role for collecting societies in standardisation, or in making DRM solutions more acceptable to consumers?

A. Beemsterboer: No. I, as collecting society and future licence broker, will not develop DRM solutions by myself; this is not my core business. And I do not have the money for that because the money that I have to invest is the money from authors. I will use the existing technology as it is provided by the market.

INDICARE: Still, the problem remains that at present many consumers are reluctant to accept DRM protected products and services. The lack of acceptance has various reasons, beginning with the lack of interoperability solutions, the position of consumers if they want to make private copies, or when they conclude contracts about the use of digital content. For record companies or producers who want to use DRM the lack of acceptance is a problem. If collecting societies step into the role of a distributor and user of DRM, will this problem not become the problem of collecting societies, too?

A. Beemsterboer: I would like to make a distinction here. Protection of consumer interests and using DRM technology for efficient licensing are, in my opinion, two separate subjects. I also distinguish two types of consumers. Institutional or commercial users, and private users. There will be different set of rules for each of them. For the rest, I have not yet any deeper knowledge of the legal position of consumers. I see their legal position as a problem. This is an issue that needs to be tackled. It already is being tackled to some extent by collecting societies, but even more by the industry, the distributors and the ones who maintain the infrastructure.

INDICARE: There have been a number of cases in France and in Belgium where consumers complained that the usage of DRM prevents them from listening to CDs or DVDs in car radios, or from making copies for their personal use. Are you aware of these cases?

A. Beemsterboer: Yes. And what I think is that as long as the consumer knows from the start what he is buying and what he can do with that product then there is no problem. If the consumer goes to a website to download music under a DRM system which will not allow him to make more copies, and this is a condition that is clearly marked when he is buying the product, there is no case. In this respect I agree with the statement from the Dutch minister of Justice during a debate about the implementation of the directive. He said that the main issue at stake in the French and Belgium cases was product liability. If I go to sell a car without a motor and that is mentioned clearly, no one can complain later that the car does not drive away. The same is the case with a CD that is DRM protected. I do not see any reason to prohibit that, as long as the consumer is aware that he is buying a CD which he cannot copy.

INDICARE: If you wanted to buy a CD by your favourite band and it was electronically copy protected, would you still buy it?

A. Beemsterboer: No, I wouldn't. And if all consumers did not buy the record, then the artist and the record producer would say: 'My god, what are we doing? We are not selling any records any more.'

It is the other way round: the consumer must make the producer and the distributor of the record aware that the market wants a product that can be copied for private use. It is up to the consumer to say what he wants. And it is up to the producer, the distributor and the creator to say: 'I am not going to do that.' or: 'Of course, you are right.' If I was a producer or creator I would try to find out what the consumer wants, and then decide whether I can deliver that or not, and if it is strategically wise to do that or not. In my view a record producer should sell records with a limited possibility for copies. Only then he will sell products that fit the consumer demand.

INDICARE: Would it be, in your opinion, an acceptable option for a record distributor to offer more differentiated pricing models, i.e. to sell a record at a lower price and without the possibility of making copies, as well as at a higher price with unlimited copy-ability?

A. Beemsterboer: Exactly. That will be the future.

INDICARE: As a final question, I would like to ask your opinion about an alternative proposal to solve the private copying dilemma. Some scholars and cyber right activists suggest the introduction of a so called broadband content flatrate. The idea is to compensate rightsholders for the downloading of their works in p2p networks. This idea was brought up, for example, in the Berlin declaration, which was also signed by Lawrence Lessig.

A. Beemsterboer: I do not believe in free access for everybody. I think that the private copying regulation as we have it now is a poor alternative for individual exploitation by the author. Still, it is a fair alternative. Abolishing all manageable individual exploitations is in my view the end of creation. Also, investors will not be willing to invest in large creative products any more, if they get in return just some basic fee from some institution as a sort of tax compensation for the fact that the works are being used. An investor wants to be able to say that he first will sell the product to cinemas, then half a year later to the video market, then to the DVD market, and one year later to a broadcaster. With the flatrate proposal there is no segmentation of marketing. It does not fit the way digital content is marketed. And it will endanger the development of creative content.

INDICARE: This is a remarkable statement, considering that the flatrate was proposed in order to stimulate creation and wide-spread use of works.

A. Beemsterboer: The flatrate could work in certain areas where the author is not dependent on the income from his works, for instance in the case of scientific authors. They are scientists and they want their works to be distributed as widely as possible. They also want their works to be copied because this will promote their status as scientists. For them the Berlin declaration could work.

INDICARE: I will pass this on to my colleagues from the institute. Mr. Beemsterboer, thank you very much for taking the time and for giving us this interview.

The following background material does not appear in alphabetical order as usual. Here we prefer to refer first to the webpage of our interview partner's organization, and then to the CC site, the site of the Berlin declaration, and the latest EC consultation on collective rights management.

Status: first posted 14/12/04; included in INDICARE Monitor Vol. 1, No 6/7, 17 December 2004; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=62