Chapter 6: Defining rights and obligations
Implementing a new form of mutualized financing of creative activities and recognizing the non-market sharing of digital works is not something one can do at the drop of a hat. An in-depth debate between stakeholders, experts, policy-makers and the public is needed to work through the details. For this debate to be possible, a structured proposal consistent with the new approach presented in the previous chapter must be on the table. We now proceed to detail its key components: to which works will the right to share apply and when? Which types of users will be concerned? What will be the rights and obligations of users? How should the amount of the contribution be determined? Some issues that regard institutional and technical implementation (the devils in the details) will be left for discussion in the next part of this book.
Our proposal addresses both the reward of creators for the usage of existing works, and the provision of funds towards the production of new works, or the maintenance of a suitable environment for works to be created and disseminated in. Some authors have proposed financing of artists and projects only, dropping the reward aspect entirely. This model was proposed as early as 2002 at the Blur Workshop on Power at Play in Digital Art and Culture organized at the Banff Center for the Arts, and subsequently elaborated by James Love [Love 2002], now director of Knowledge Ecology International.1 Users have to pay a monthly contribution, which is allocated using a competitive intermediaries model, where various organizations compete to attract funds from Internet users, on the basis of the re-distribution policies they publicize. The Blur/Banff proposal was subsequently elaborated to make it more secure against rigging by persons who would agree to cross-allocate the collected sums to each other [Toner 2008]. Francis Muguet2 [Muguet 2008] designed a “global sponsorship” scheme where a flat-rate contribution by Internet subscribers would be allocated on the sole basis of individual preferences, users deciding (for instance on a monthly basis) to allocate parts of their contribution to various artists and artistic projects. To answer critics who pointed out that it is difficult for individuals to make such decisions at the level of individual artists and projects, Muguet and other promoters of global sponsorship added a provision enabling people to delegate this decision, which would be similar to the “competitive intermediaries” model.
We consider competitive intermediaries to be a key instrument to give individuals direct power over the allocation of funds towards the production of new works, or to organizations that contribute to a better environment for creative activity, the dissemination of works or the recognition of their quality. However, it would be a serious mistake, in our opinion, to renounce rewarding the usage of existing works, or to use explicit decisions of allocation for that purpose. Usage of works is more serendipitous and more diverse than the memory we have of it and than our conscious preferences. It would be a cultural loss to abandon ex-post usage-based rewards.
Internet usage in the non-market sphere is an extraordinary tool for the discovery of new works, precisely because it is not hindered by monetary transactions or decisions on how to allocate funds. If someone is asked to list all the music titles they listened to the last month, or even all the movies they saw or the texts they read, they will typically recall only a very limited proportion of them. For Internet-based media, where works are even more numerous (short videos, photographs, blogs), our memory is even more challenged. This means that explicit decisions or phone polls are not suitable for rewarding the usage of works. Despite this, a live experiment is still being conducted in France today, where phone polls are one of the sources of information for the distribution of the funds levied on blank carriers. This distribution key is as concentrated on a few works (probably those that are heavily promoted) as radio broadcasting.3 One of the challenges for the implementation of our proposal will be to find ways of recording the real-life diversity of access to and usage of works. We describe a possible way to address this challenge in chapter 10.
For the time being, let us just note that we plan to use the product of a flat-rate contribution both for rewarding the usage of existing works, and as one of the means to enable the production of new works in a satisfactory environment for creative and cultural practice.
Which works to include
Our first task is to decide on the range of works falling under the remit of the proposed device, i.e. which will benefit from the re-distribution of its proceeds, and officially become freely sharable in the non-market sphere. This choice pertains to:
- which types of media are included;
- whether including a particular work in a particular media is mandatory or optional;
- under which conditions an individual work falling in the above categories is considered to have been published and hence is included.
As we already mentioned, many proponents of flat-rate-based legalization of file sharing designed their proposals for musical and moving image contents only. William Fisher [Fisher 2004, p. 251] estimated that the device could later be expanded, and possibly adjusted, to apply to electronic books and games.
On 20 December 2005, the French parliament took everyone by surprise by voting an amendment to the Loi sur le droit d’auteur et les droits voisins dans la société de l’information (DADVSI4), which was then under discussion. The amendment created a flat-rate-based blanket license (licence globale) for non-commercial file sharing. It addressed moving image and musical contents. The cinema interest groups and their spokespersons in various political parties immediately clamored that this would be the death of the French cinematographic industry. After a few months of a polemic which was more vaudeville than constructive debate, a new vote was held, which overturned the original. For many, the idea that blanket licensing was ill-adapted to the needs of film, video and TV production became an accepted fact. It is worth noting that a number of movie and audiovisual personalities and stakeholders have now changed their mind on the subject.5 When the next repressive copyright law6 was debated in 2009, the French Socialist Party tabled an amendment based on the “creative contribution”, which would have legalized file sharing, but only for music. Does it make sense to do it only for one medium?
It does, to some extent, but not really. There is nothing fundamental to prevent us from applying the principles stated above to a particular medium only. Convergence may blur the boundaries between media and trigger the creation of mixed-media forms, but the economy of production of works in various media remains pretty specific. The production of video games is very different from that of books, for instance. However, only a very small part of the benefits of our proposal would be reaped if it was applied to one medium only. Information technology and the Internet are not broken in media segments; there are devices specialized for a given medium (to a certain degree), such as music players, but they work in conjunction with universal computers and are not at all the only devices used to access “their” medium. Innovation in one medium derives inspiration and re-uses ideas from other media. From the point of view of “intellectual property” rights (IPR) enforcement, the Internet is even less “separable” into separate media. Surveillance squads and fake injection providers may do business with the rights holders for a given medium, or use detection algorithms that are medium-specific. However, it is the IPR industry as a whole that pushes for three-strike laws7 and for compulsory filtering of the Internet to prevent access to sites that play a role in file sharing. Their attacks on the mere conduit safe harbor of intermediaries, and their efforts to negotiate criminal sanctions for IPR infringements in international trade agreements without democratic involvement of parliaments are the joint work of the entire industry, and often encompass domains well beyond media and culture.
A one-medium recognition of non-market sharing is unlikely to stop the war on sharing and its cortege of harmful effects. Fundamental rights such as freedom of expression and communication or the right to privacy would remain at risk and the maturation of ethics, good practice and supporting technology for cultural exchange would still be delayed. In [Aigrain 2008], we analyzed the conditions under which a recognition of sharing and associated financing could be applied to some media only and still produce sufficiently positive results. We listed the following conditions:
- Rights holders for media which are not included must recognize that the infrastructure of the Internet and digital tools are a common good. They should not be allowed to skew this infrastructure to fit the needs of the proprietary model which they wish to preserve, which relies on the scarcity of copies. They would be free to continue to use access control, usage restriction tools or watermarking for their own works, but only provided they do not hinder the use of any other works. None of these tools should become compulsory over the entire information infrastructure just to serve the interests of those who chose to opt out of the Creative Contribution.
- Similarly, they should agree that copyright cannot be enforced at the expense of other, fundamental rights, and that only a judicial procedure can establish that an infringement occurred and lead to the corresponding sanctions. Prosecution can only occur after infringement has been established.
If it was straightforward to obtain agreement to these conditions, this book would be unnecessary. Rather than dealing with the consequences of some media being excluded, it is probably easier to convince a wide range of creative players in each medium to endorse a scheme such as our Creative Contribution. Our proposal is designed to facilitate endorsement by various media communities. The definition of the digital cultural commons it incorporates is crafted so as to ensure a better synergy between digital commons and commercial offers inside and outside the digital sphere. Specific media may raise specific issues, as we will see in the next chapter when discussing the case of books, but all deserve the benefit of a rich cultural commons.
Can each author or creator choose whether to allow his or her works to be shared? This is the case at present: creators are already free to authorize the sharing of their digital works, using Creative Commons licenses for instance. For some types of contents, such as photographs, blogs (including sound and video blogs) and scientific publications, this scheme has been endorsed widely. But there is an important difference: currently, authors and artists who already choose to grant the right to share do not get any direct benefit from having contributed to the cultural commons. One of the key provisions of our proposal is to give them the benefit of a reward for their contribution, should they desire it.8
Many authors will welcome the potential reward which the proposed Creative Contribution would enable them to get from activities for which, today, they receive no direct benefit. Some might express legitimate doubts over the amount they would receive and the degree to which other sources of income would be affected. However, it is not from creators that we expect the strongest opposition. Even in countries where copyright is rooted in the right of the author, it is the producers, collecting societies and distributors who actually have power over how these rights will be used. Here is a typical example: the French DADVSI law of 2006 endowed the author with the exclusive right to authorize or forbid the application of DRM to his or her works. The only practical effect of this provision was to make the authorization of DRM a standard clause in every media publishing contract: any author who wants a contract has to sign it. Almost every collecting society in Europe forbids its members to use Creative Commons licenses (even the By-NC-ND version, which forbids commercial uses and derivative works). In other words, if they want to grant the right to non-commercial sharing, creators currently have to renounce all commercial usage revenues, including those which fall under statutory licenses such as radio broadcasting of music. Consequently, some US companies such as Magnatune now run a successful business by enabling European musicians to circumvent this abusive power at least partially. Thus, we prefer to allow the entire class of creators to endorse the Creative Contribution or not, after public debate, rather than promoting a situation where each individual must make a decision, given that the latter cannot be shielded from the unequal balance of power between them and publishers or collecting societies.
There is another, arguably much more compelling argument to reject work by work or author by author options: an optional system would lead to complete legal uncertainty for users, with huge transaction costs. The Creative Contribution would no longer represent a foundation for an enlarged cultural commons, it would become just another way to manage exclusive rights, making an already cluttered legal landscape even more complex.
Of course, a proposal for mandatory inclusion would have to be consistent with copyright law. If – as is likely – it is considered an exception or limitation, it will have to pass the three-step test. As discussed above, this is difficult only if one adopts a fundamentalist approach to exclusive rights. It is worth noting that the schemes that contribute most author rights and copyright revenues today would also be considered illegal under such an approach. We will cover the third step of the test (“does not unreasonably prejudice the legitimate interests of the author”) when discussing the rate of the contribution. Again, to be consistent, this third step should also apply to the positions of the majors and many collecting societies. When they oppose the Creative Contribution and other similar mechanisms, they are the ones who are unreasonably prejudicing the legitimate interests of the authors they are supposed to serve and represent.
In principle, the recognition of non-market sharing of digital works encompasses all works that have been the object of digital distribution to the public, whatever its nature (free or paying). However, this principle must be qualified:
- The mechanism must not hinder the author’s liberty to determine when they make a work available to the public for the first time: it is automatically applied only once the work is made public, not before. Similarly, the exchange of digital copies of a work in private correspondence does not constitute distribution to the public in the above sense: the recipient of a digital copy of a non-published work received as private correspondence cannot share it with others under the Creative Contribution.
- Only a form of distribution which actually makes a work reach the public in digital form counts. For example, showing a film in theaters would not authorize its cam-cording and later exchange, no more than playing a piece of music during a concert would allow the audience to record it for later sharing, or the paper publication of a book its scanning and transmission to others. This saves an essential element of media chronology: the possibility to schedule the public performance, analogic distribution and digital distribution at different times. For movies this sequencing between forms of dissemination of a work currently plays a significant role in the creative economy, in particular where it is defined by law, such as in France. For books, such sequencing might facilitate the transition to an era of digital books. Of course, authors and artists would remain free to authorize these acts if they wish to do so, but this would be outside the scope of the Creative Contribution.
The circulation of works which are not public in the sense of the above will remain subject to the existing implementation of copyright law. It will be possible to sue producers and distributors of copies of these works for copyright infringement. However, rights owners will not be allowed to impose the implementation of surveillance and control tools in the overall information infrastructure for this purpose.
Aside from the limitation to non-market exchanges, we have not so far defined the rights that the mechanism we propose would give to Internet users, nor the associated obligations. In terms of rights, one can envisage two approaches:
- restrict them to reproduction and communication to the public: each and everyone can receive works, send them and make them available to others (and of course read, view and listen to them, etc...)
- also include remix rights to produce modified works based on the works included in the mechanism.
The first option tends to restrict the activities of Internet users to the access, interactive perception, recommendation and redistribution of works. It has the preference of those who fear that authorizing reuse in non-market sharing would face challenges in countries where moral rights are considered important. One can also argue that the key obstacles to the recognition of the right to share arise from the wish of media companies to maintain or install a monopoly on the reproduction and distribution of digital works. Once this obstacle is removed, the diverse feelings of authors regarding modifications of their works will not block the exploration of new paths.
However, legal constraints have been proven to be far from incompatible with authorizing remixes: in practice, many legal provisions authorize transformations (such as the insertion of advertising in movies) whose effect on the integrity of works is far from negligible. Even countries with a strong moral right tradition such as France are submitted to the Directive on Satellite Broadcasting and Cable9 which de facto transmits the exercise of all rights to collecting societies and distributors. William Fisher’s initial proposals for a flat-rate-based legalization of sharing [Fisher 2004] included remix rights, but commentators pointed that it would subject the proposal to criticism in moral rights countries, so he later proposed to let authors choose whether to authorize derivative works and remixes or not. Creators would be able to lift restrictions on derivative works through use of adequate licenses – for instance those Creative Commons licenses authorizing modifications,10 possibly with conditions. They could also condition such acts to explicit authorization or even payment. This would create a competition between more liberal and more restrictive models, but minimal rights to share would always be granted.
Authorizing remixes is motivated by their key role in non-market collaboration, enabling the creation of new works (annotated versions, reuse in new creative works, etc.). Of course, the remix rights would be associated with an obligation to indicate sources and properly signal modifications and their authors. This second option would avoid some problems that might arise if non-commercial remix rights are not granted. For instance, some might claim that advertising inserts are an integral part of a work, and that it is forbidden to remove them in sharing. One clearly needs to reject such claims, whatever business model protection reasons may underlie them. Some people tear off ad pages from magazines before reading them or giving them to others, and it should remain possible to do likewise in the digital world.
There is an impact of allowing remixes on reward systems: a flaw in William Fisher initial proposal was that it planned for the reward system to track changes in the form of relative shares of reward to be given to various contributors. This was clearly a source of damaging complexity for the reward system. A simpler approach would consider a remix as a new work, eligible for its own rewards. This means that the remix would have to meet a standard of originality in order to prevent the opportunistic relabeling of works as being a remix in order to reap undue rewards. This is a source of another form of complexity, this time not for the reward system but for verifications and possible oppositions or litigations.
We consider that the choice between the two options cannot be made without an additional debate and exploration of its modes of implementation. Finally, media criticism should not be blocked on the basis of the non-authorization of modifications. The recognition of a right to share is by no means the end of the debate on the scope of user rights, and fair use rights or exceptions are no less needed in an environment where sharing is recognized.
- They must respect the right to attribution of works to their authors, as expressed in the Bern Convention. This right has a validity that goes well beyond copyright in the narrow sense of control over copies. In practice, the experience of voluntary sharing under Creative Commons licenses or other free licenses has shown that when the right to share is granted, the attribution of works to their authors is at least as well respected as in proprietary management. The Web culture of metadata, linking and referencing favors the respect of attribution. Even in non-authorized sharing, the ID3 metadata associated to mp3 files, for instance, is much more readily available than the industry-defined identifiers such as those in CD record publishing.
- Users must also abstain from removing or tampering with the unique identifiers included in files representing works, which are used for the collection of data needed to reward creators. The principal motivation for such removal or tampering would be to replace one identifier by another in order to obtain a financial reward by fraud. Cryptographic integrity checks enable the prevention and efficient prosecution of such fraud, but need specific adaptation to the case where derivative works are authorized.11
When an activity is legitimate and legal, providing means to do it must also be legal, whether it is done free-of-charge or against payment. As any infrastructural commons, the commons of non-market sharing will need services that maintain them, ensure they are functioning efficiently, help users to filter or locate contents of interest, ensure long-term conservation, collect statistics about sharing beyond those that are needed to reward creators, or protect the privacy of users. Some of these services will be provided by community efforts at no cost. Others might take the form of paying services. The definition of these useful, lawful services assisting non-market sharing is not a trivial task, however. If the idea is to recognize non-market sharing, commercial ventures should not be able to disguise themselves as providers of means to non-market sharing between individuals, when in reality they would do commercial usage of the works themselves, or of the attention time of users during access to works on a site. This is best illustrated by examples:
- Any service that does not give access directly to works, but only points users to where and how they can obtain them from other individuals, should be recognized as legal, whether it is free-of-charge and advertising-free, or not. For example, the original implementations of Napster or trackers such as the Pirate Bay would both be legal, provided they respect user privacy, of course.
- Services which use advertising or subscription to give access to contents directly, whether for download or streaming, are clearly excluded from the benefit of the right to non-market sharing. They would need to negotiate commercial licenses for the corresponding reproduction, communication and making available (in Europe) rights. Whether one decides to submit these rights to a collective or statutory licensing is another decision.12
Between these 2 cases, some limit situations deserve to be studied and debated in detail and are beyond the scope of this book. What about a blogger who posts an article giving access to a video or musical recording and receives some advertising income using technology such as AdSense?
Another important question is that of libraries. Bruno Blasselle [Blasselle 2008] recounts that, in the late Middle Ages, the birth of universities led to an increase in the demand of copies of texts, bound as codices. This led to the development of copy craftsmanship outside monasteries, with specialized craftsmen: copiers, binders, illuminators. With this multiplication of copies went a multiplication of errors, then unavoidable in texts that were often copies of copies. To prevent such errors, repositories were created, where a faithful reference copy was stored: the exemplar. However, the exemplar was not bound as a codex: it remained divided in folios or pieces. What for? At the time, the aim was not to prevent copies from being made, but instead to encourage them. However, copying was a slow process. To speed up the production of copies, separate folios could be lent to different copiers: while one copied the first folio, the others could copy other parts of a text.13 These repositories of exemplars are the forerunner of an important role for the libraries of the future.
In future, will book and media libraries give access to everyone on the Internet to reference copies of all published works, including those still covered by copyright and commercially distributed? It will certainly be the case one day: part of the role of legal deposit libraries or reference libraries will be to “seed” a reference copy, in the sense of the BitTorrent protocol or – most probably – one of its successors, that is to initiate the chain by which milliards of people can, if they so desire, have access to these works. Openly accessible archives and repositories play this role today in scientific publishing.
However, this will not necessarily happen immediately for domains where public or not-for-profit funding plays a more limited role in investment for the creation of new works. One can imagine a transition period where the role of libraries will be focused on the public domain in the widest sense as suggested by Robert Darnton [Darnton 2011]. Giving access – under completely free reuse terms – to digitized public domain14 documents is already an immense task, essential to the rooting of our culture in its heritage. Giving access to orphan works and out-of-print works, which represent the vast majority of works covered by copyright for books and a significant share for other media, is also an essential rescue task. There is no sense in charging fees for access to orphan works, so the latter should become usable under collective licensing without compensation by users, but a guarantee state fund is needed to protect users against the possible claims of rights holders who re-appear after a work has been made available. To enable the republication of out-of-print works, the best approach is to make sure that, after a short moratorium period, the associated rights are transferred back from the publishers to the authors. Many publishing contracts have such clauses, but they must become a legal obligation.
If the Creative Contribution grants a right to non-market sharing between individuals, an open debate will be needed on the status of non-profit organizations, and in particular educative and memory institutions. It would be paradoxical if the recognition of a new non-market sphere restricted the role of existing non-market organizations. If the Creative Contribution is limited to sharing between individuals, it must be complemented by a strong fair use doctrine, or by exceptions for research, education, libraries and archives.
- 1. See http://www.keionline.org.
- 2. Francis Muguet’s sudden death in 2009 was a great loss.
- 3. Music radio broadcasting has very little diversity in France, due to the dominant position of a few radio networks.
- 4. Transposition in French law of the 2001/20/CE European Directive on Copyright and Neighbouring Rights in the Information Society.
- 5. In particular the aforementioned Pour le cinéma group, see http://pourlecinema.over-blog.fr/.
- 6. Loi n°2009-669 du 12 juin 2009 favorisant la diffusion et la protection de la création sur internet.
- 7. Three warnings of infringement, and you are out of the Internet.
- 8. The benefit of the financial reward is optional.
- 9. Council Directive 93/83/EEC. Whereas 28 reads: Whereas, in order to ensure that the smooth operation of contractual arrangements is not called into question by the intervention of outsiders holding rights in individual parts of the programme, provision should be made, through the obligation to have recourse to a collecting society, for the exclusive collective exercise of the authorization right to the extent that this is required by the special features of cable retransmission; whereas the authorization right as such remains intact and only the exercise of this right is regulated to some extent, so that the right to authorize a cable retransmission can still be assigned; whereas this Directive does not affect the exercise of moral rights. The last sentence is an interesting example of Newspeak: it should read “in practice, the exercise of moral rights by authors will be made de facto impossible beyond the simple refusal to have one’s work transmitted by satellite (or even satellite and broadcast in the case of a simultaneous transmission)”.
- 10. A debate exists within the Creative Commons communities on how to handle moral rights in CC licenses that authorize modifications. The present licenses for the French jurisdiction do not waive moral rights: they can’t according to the theoretical inalienability of moral rights. This leads to a degree of legal uncertainty for the user (if he or she intends to create a derivative work). But this uncertainty is limited, provided the user respects a few ground rules, as the practical implementation of moral rights in courts pays much attention to the original intention of authors, and this intention is not ambiguous: an author who authorizes modifications to a work ... knows the work can be modified.
- 11. See chapter 10.
- 12. It could be a useful complement to the Creative Contribution, see chapter 5.
- 13. Part of this paragraph was published earlier on the author’s blog, see http://paigrain.debatpublic.net/?p=1629&lp_lang_view=en.
- 14. Documents that were never the object of copyright or whose copyright is extinct.