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2. Consume and Share

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which exclusivity has been relinquished and is to a large extent replaced by cooperative behaviour among the players, based on a combination of contractual arrangements and liability rules.^[1]

I submit that our societies may obtain a genuine competitive advantage in fostering innovation based on this third paradigm rather than in insisting on global acceptance of strong IP rights which have in part outlived their function; and that we should consider how to make the best of the new chances offered to us. Reforming old international IP conventions, which are to a large extent based on the assumption of exclusivity, including Berne and TRIPs, should be part of this larger job.^[2]

5. The 2010–2020 Digital Agenda for Europe

Of course, reforming international conventions takes time. In the past the EU has shown that it is able to take up the challenge of an economic crisis to explore new opportunities for innovation and growth. What are then the intermediate priorities? Which opportunities may we seize now in this regard, while the process leading to Copyright 2.0 and Berne 2.0 is — hopefully — kick-started?

A Digital Agenda for Europe indicates a number of current priorities that perfectly fit the broader approach I just advocated. First, orphan works should be brought into the fold of the EU digital libraries initiative by means of extended collective licenses.^[3] Under this mechanism, any right holder may at any time reveal herself and opt out of the regime. Opting out of an extended collective license scheme amounts to opting in to full copyright protection. In this perspective, the orphan works regime would be a good first experiment in the direction of requiring opt-in Copyright 1.0.

Second, collective rights management organisations (CRMOs) are aptly

↑ For examples of the working of this third paradigm see Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir and Colin R. Crossman, “Pathways Across the Valley of Death: Novel Intellectual Property Strategies for Accelerated Drug Discovery”, Yale Journal of Health Policy, Law, and Ethics, 8 (2008), 1–36 (in connection with drug discovery) and Jerome H. Reichman and Paul F. Uhlir, “A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment”, Law and Contemporary Problems, 66 (2003), 315–462.
↑ But see the refreshing remarks showing that exclusivity is not even today mandated either by Berne and by TRIPs in Geiger (2011), p. 544.
↑ See A Digital Agenda for Europe, pp. 6–7, 29–30. The literature on ECL is significantly growing: see Tarja Koskinen-Olsson, “Collective Management in the Nordic Countries”, in Collective Management of Copyright and Related Rights, ed. by Daniel Gervais (Kluwer Law International, 2006), pp. 257–81; and the literature quoted in Grassmuck (2009).

[1] For examples of the working of this third paradigm see Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir and Colin R. Crossman, “Pathways Across the Valley of Death: Novel Intellectual Property Strategies for Accelerated Drug Discovery”, Yale Journal of Health Policy, Law, and Ethics, 8 (2008), 1–36 (in connection with drug discovery) and Jerome H. Reichman and Paul F. Uhlir, “A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment”, Law and Contemporary Problems, 66 (2003), 315–462.

[2] But see the refreshing remarks showing that exclusivity is not even today mandated either by Berne and by TRIPs in Geiger (2011), p. 544.

[3] See A Digital Agenda for Europe, pp. 6–7, 29–30. The literature on ECL is significantly growing: see Tarja Koskinen-Olsson, “Collective Management in the Nordic Countries”, in Collective Management of Copyright and Related Rights, ed. by Daniel Gervais (Kluwer Law International, 2006), pp. 257–81; and the literature quoted in Grassmuck (2009).

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