55. The Structure, Function, and Operations of Intellectual Property Service Providers
B. Methods of Operation (continued)
Basic Services
The primary function of an intellectual property management organization is to Wll an intermediary role between rightsholders and users in the administration, access, and procurement of intellectual property. While each provider fulfills this function in its own unique way, there are six basic tasks that all providers must undertake to function as a useful intermediary:
1. Compiling a repertoire of select materials (e.g., images, journals, musical compositions, illustrations) for use by various communities. These repertoires may be centrally located on- or offsite, or may be located at the rightsholders’ site.
2. Organizing and documenting the intellectual properties in the repertoires to facilitate internal management, to allow identification and retrieval of works based on varying criteria, and to offer appropriate descriptor information for external inquiries.
3. Developing procedures for permitting use of the intellectual property in the repertoire (e.g., licensing, online access permissions, pay-per-use, etc.)
4. Distributing intellectual property or directing the user to the appropriate place for procuring the intellectual property.
5. Securing payment (e.g., fees, subscriptions, usage charges) in return for services offered.
6. Monitoring usage of works in the repertoire.
In performing these basic functions, service providers have developed a wealth of specific services that are attractive to both rightsholders and users. Technical assistance is among the most highly valued of all services, particularly when the intellectual property is managed and distributed electronically. Technical services include offerings such as scanning images, text, graphics, and other data sources for use in the service provider’s database, data formatting, and Web site development. For users, these services may also include converting digital (or even conventional analog) images into different formats for use in specific applications.
Data enhancement services form another category of offerings. Captioning, indexing, cataloging, editing, and data standardization are included here, as are security procedures like watermarking and encryption for providers that also distribute intellectual properties and want to protect their use on electronic networks. The enhancements that service providers add to the works in their repertoires often increase the value and usefulness of the intellectual property, and rightsholders frequently request the enhancements for their own internal use. Service providers may comply with such requests by offering the enhancements (often copies of a digital image or record) to the rightsholder at no charge, or at a reduced fee.
Providers also offer usage monitoring and surveillance services. Usage information and statistics are necessary for internal bookkeeping, identifying new markets and commonly used intellectual properties, determining the frequency in types of usage, and calculating royalties. Monitoring methodologies are often a compromise between resource expenditure and the need to derive accurate usage statistics from a variety of sources. The music industry monitors performing rights usage by means of an elaborate system of surveys, samplings, logs, and projections. The process is complex and frequently criticized for being unfair and inexact, but it evolved from a need to establish a workable monitoring methodology that would not consume all the resources of the collective.21
Providers with less complex monitoring needs may allow users to "self-monitor" within an honor system, or may require the user to implement a monitoring strategy that is subject to audit by the service provider. Electronic monitoring technologies, which hold the promise of more accurate tracking capabilities, are now appearing on the market. SESAC is using a state-of-the-art system that identifies, using a digital pattern recognition system, any song in the SESAC repertoire whenever it is played on the radio.22 BMI has developed a Web robot that monitors the use of music from the BMI repertoire in cyberspace.23 Digimarc™, a digital watermark technology company, now offers a Web spider that tracks watermarked digital images across the Internet.24
Some intellectual property management organizations provide legal services as one of their offerings, although the need for legal services varies depending on the provider’s policy on infringements. Larger organizations have fully staffed legal departments that actively seek out and pursue infringements all the way to and including litigation. Others rely on the occasional services of an outside law firm to issue "cease and desist" warnings, but do not enter into litigation. Some providers may choose not to pursue infringements because of resource limitations, or because they have chosen to leave this option to the discretion of individual rightsholders. Other providers will pursue infringements only if they take place against a group of their rightsholders. And some service providers find that it is unnecessary to pursue infringements because the incidence in their industry is relatively infrequent and can usually be stopped with a telephone call or a letter.
Providers that diligently pursue large-scale infringements often do so to educate rather than litigate. A high-profile infringement case presents a rare opportunity to reach a large group of users, and to curtail infringements that are at risk of becoming tolerated because "everyone does it." But most providers pursue infringement cases judiciously. They can tie up the financial and administrative resources of an organization, create a public relations fiasco (as was the case of ASCAP v. the Girl Scouts of America),25 or result in a ruling that runs counter to the provider’s intent.
Education and advocacy also form a core area of service provider offerings. Organizations representing professional memberships such as photographers, writers, or artists frequently have advocacy programs to monitor copyright legislation and its impact on their constituencies. Educational programs include copyright awareness training, membership outreach, and training on issues specific to rightsholders’ and users’ interests.
Providers affiliated with a membership organization may offer personal member benefits such as insurance (ASCAP offers musical instrument insurance at a reduced rate, for example), professional career services, and personal Web site development. Some will act as agents for an artist, photographer, illustrator, or others seeking special assignments, or for users who are seeking content that is not available in the provider’s database.
Management Traditions by Genre