1. Which media are covered by the Creative Contribution?
All media covered by copyright or author rights except software and copy-rightable databases. The case of scientific publications is undecided. Note that this definition aims at ensuring that the rewards or support are granted only to original work. It should not be interpreted as implying that the copy-right is the basis for the rewards.
2. What about non-copyrightable material such as data, facts, news and other ma-terial that is in the public domain?
Nobody can claim rewards for public domain material. However, projects whose aim is to make the public domain more accessible, and/or freely reu-sable, are legitimate recipients of the Creative Contribution, as they are part of the environment of creation.
3. Why are software, copyrightable databases and possibly scientific publications not included?
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Because other solutions are already established or being explored in these domains.1
Our first duty in these domains is to abstain from creating further obstacles to the free access to published knowledge. In this regard, the European Di-rective on the Legal Protection of Databases2 must be repealed. Then, in some cases, new financing models are needed to permit some types of soft-ware innovation to take place in the commons or to make useful editorial functions sustainable in scientific publishing. Specific approaches are already being explored in these domains. Finally, competition policy to prevent dis-crimination against free/open source software is also important.
We chose to limit the scope of the Creative Contribution to informative, pub-lic expression or creative works because it seemed to us that the existing ap-proaches might be disrupted if it encompassed software, databases and scientific publications.
If this position is reconsidered, it is possible, in principle, to include software and copyrightable databases in the Creative Contribution, but the global amount of the contribution and the definition of what is a work would need to be adapted. Specific work would also be needed on usage measures.
Finally, the exclusion of scientific publications may create difficulties, as they are not necessarily easy to distinguish from other types of publications. This may call for further debate, as their inclusion in the Creative Contribution would not necessitate an adaptation to our proposal. The decision may de-pend on whether one considers scientific publications to be read principally by the scientific community or by a wider public.
4. Which works are covered?
Any work in any medium included in the scheme, which has been distributed or made accessible in digital form to individual users, free-of-charge or against payment.
5. Why is digitizing of analog works or performances not included?
The world of freely sharable digital works has great promise and has already empowered each of us, but analog distribution remains of value, and the two will likely co-exist for some time. Expanding on Marco Ricolfi’s copyright 2.0 idea (Ricolfi 2009), we propose to treat them as separate, in order to facilitate the transition. This amounts to maintaining one critical form of media chron-ology, separating analog distribution or performance from digital distribu-tion. One can also describe it as recognizing an exclusive divulgation right for the author to authorize digital distribution, which the freedom of non-market sharing does not override.
It means that one will not be able to use the right to share to digitize and distribute orphan works or“out of print” works. As these represent a very
important share of our culture, other means of recovering this heritage must be explored. For orphan works, one possibility is collective licensing, without compensation, but with a guarantee fund set aside to compensate any right holders who may re-appear, and thus to provide legal security for users. For
“out of print” works, decent publishing contracts already include a clause, which returns all rights to the author if the publisher refuses to re-publish their works on a given (and brief) time scale, and this clause could be made compulsory.
6. Is modification of works permitted?
We consider that an additional debate is necessary to decide if non-commer-cial“remix” rights should be included or only the modifications that are per-mitted in Creative Commons No Derivative Works licenses:“such modifica-tions as are technically necessary to exercise the rights in other media and formats”.3The arguments for each of the options are detailed on page 85. If the choice is made of authorizing modifications, some adaptation is needed in the reward system. The simplicity of the reward system should be pre-served, meaning that derivative works that meet originality standards are eli-gible for rewards in their own standing. This means that registering a deriva-tive work is a statement of originality and can be challenged by the original authors. Of course, if authorized, modifications must be properly labeled.
7. How is the total amount of rewards split for various media?
A debate must be held to decide if the usage data will be collected and rewards distributed medium per medium, or if all can be managed in one basket. Our view is that a medium per medium approach is initially more credible. Our all-media-encompassing analysis in chapter 7 is useful for esti-mating the global amount of rewards needed. However, the definition of a work and usage patterns differ so much across different media that we con-sider it difficult, at least for the time being, to distribute rewards by mixing works of all media in one basket. This means that the global amount of re-wards will have to be split into shares for various media. Of course, one would like to have an objective basis for doing so, but as we remarked in chapter 7, there is no clear ground truth basis for this split. Neither the total amount of information shared on-line (in bits) nor the time devoted to usage of works in each medium are reasonable choices. Using the existing share of each medium in the present economy does not make much more sense.
One possible approach would be to use Internet user preferences expressed on a yearly basis (each person would allocate so many percent for written works, so many for music and other sound recordings, so many for video, etc.). However, some degree of certainty regarding the sums likely to be allo-cated to each medium is highly desirable. We have thus proposed that the
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distribution among media should be decided by a policy governance mecha-nism outlined in chapter 9.
8. What is the main scheme for measuring usage in each medium?
We propose to obtain usage data from a voluntary subset of Internet users.
When some components of the media industry attempt to enforce the mon-itoring of unauthorized acts by members of the public, they naturally encoun-ter fierce resistance. As a result, it is hard for the industry to imagine that the public might be willing to cooperate in any form of usage measurement.
However, a fair and efficient distribution of the collected sums is in the inter-est of Internet users, who are likely to be the binter-est allies in this task.
Of course, there will be attempts to obtain abusive rewards, either through fraud or through efforts to bias measurements. Chapter 10 details a system that is reasonably robust, aiming at making fraud detectable or not the worth the effort. This system uses additional sources of information to complement the data provided by the sample of voluntary users.
9. Who decides who gets support for production projects?
The subscribers to broadband Internet who pay the Creative Contribution will allocate support to production. To make this choice easier and more efficient, we propose using a competitive intermediary model, where users allocate funds to intermediaries that compete to attract them, based on their policies or projects. These intermediaries can be participative financing organiza-tions, participative production firms, including ones for large individual proj-ects, or even public funds for the arts, culture and media, when their statute authorizes them to receive external funds from individuals. The choice would be made on a yearly basis. It may be advisable to limit the maximum percen-tage that a given user may allocate to a single organization, as suggested by (Muguet 2008). To be included in the list of possible recipients, intermedi-aries will need to satisfy some transparency and democratic governance con-ditions. Of course, compliance with these conditions will need to be moni-tored, and Internet users can also contribute to this effort.