14. You are going to reward pornography.
There are several answers to this criticism, which will appeal to different peo-ple and possibly be followed in different countries:
– So what? The copyright system already does, and this was not held against it.
– For the same reason that copyright is less used by the pornographic econ-omy than by other forms of contents, the share of rewards or support to pornography from the Creative Contribution will be less than the real share of its use. The main reason for this is that authors and producers of pornographic works will be less inclined to register within the system, because it might expose tax evasion practices or other shady aspects of their business. Another equally important reason will be that usage of pornography will be measured less completely, and fewer preferences for support to its production will be expressed, because users are likely to be reluctant to provide such data (even within a system that guarantees ano-nymity).
– Finally, countries can put in place policies that disavow rewards and sup-port for the production of pornography. There are drawbacks to such policies, especially for funds which are not public money. They will be seen by some as hostile to freedom of expression and access to informa-tion. Others will point out that the definition of what is or is not porno-graphy is imprecise. However, there are established policies which already implement such negative or positive discrimination in the support of cul-tural products. For instance, film and video collecting societies in coun-tries such as Germany preferentially allocate production support to some types of contents (such as documentaries) and disfavor others.7
ben-efit, through the Creative Contribution rewards, from having their contents made available on the Internet, will remove this limitation.
Classical or collaborative news media players, which presently use a combi-nation of subscriptions, docombi-nations, advertising income and, in some cases, public support, will have a new income channel, which will help them achieve sustainability. The many music or video self-production or co-pro-duction organizations which target omni-directional income channels (con-certs, radio, TV, film, use in live performance or advertising, etc.) will also gain an additional source of income or support.
Some music labels such as the French Believe8 will face a more complex situation, as they presently target sales of digital contents almost exclusively.
However, they can adapt their business to the new situation. Digital sales to end-users are compatible with the right to share, if they are properly posi-tioned and complemented with an added value. Magnatune is in an inter-mediate situation: it already has a large share of non-commercially shared music, and develops licensing for commercial use, but it also makes digital sales to individual users.
16. It is incompatible with grassroots intermediaries and participative production.
Grassroots intermediaries and participative production organizations will benefit greatly from the Creative Contribution on the production side, draw-ing on an immensely extended base of potential contributors. They will also benefit indirectly from rewards, as artists will have an increased interest in involving themselves in participative endeavors mobilizing Internet users.
Fernando Anitelli’s O Teatro Mágico music and dance group in Brazil is a living exploration of the synergy between sharing and participatory rewards. This Creative Commons label has sold more than 300,000 albums in Brazil and is also involved in Trama Virtual, an organization funded by companies to re-ward music shared on the Internet. Users send use or appreciation clues, and the money collected from the sponsors is distributed according to these user indications. Trama Virtual illustrates the difficulties experienced by voluntary participatory rewards in terms of scale: if the sums collected are too small in comparison to the number of groups that show up for rewards, the whole system distributes rewards only to a small number of artists or suffers from heavy transaction costs. With a Creative Contribution system in place, Trama Virtual would function at the required scale, but of course, this would mean that users contribute not just clues but also money, in addition to what they are already spending on buying albums and concert tickets. O Teatro Mágico probably does not need it, but other groups in Trama Virtual do.
Organizations such as Flattr9propose to put in place a form of bottom-up organized Creative Contribution among a voluntary community (of both ar-tists and users). Flattr is play on words between flat-rate and flatter. It collects a
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monthly flat rate and redistributes it to the producers of works which are signed up to it, according to use data collected from members using a small software package (a simple button that users click to indicate appreciation of a work when accessing or using it). Will Flattr suffer because users will feel they have already paid for culture in general? In our opinion, this will not be the case, because Flattr has specific assets: it is intrinsically global in scope and can mobilize specific communities of interests, i.e. it can become a parti-cipative intermediary for specific groups. Finally, one would not trust the col-lection and distribution of sums on the scale of society to a private firm, but it would be possible for intermediaries such as Flattr to be providers of certified and auditable usage data for rewards. This would create an additional incen-tive for users to be members.
17. This is a new tax for the benefit of a few.
The Creative Contribution is not a tax, but rather a statutory payment. Many people see these two things as the same, but there is a key difference: the collected sums do not become part of the budget of a government. They are intended for one specific purpose and are managed by a specific organiza-tion. We have designed this organization to be under the control of the con-tributors: this is why we described it as a mutualized financing scheme.
Now, is this statutory payment for the benefit of a few? It is designed to be for the benefit of many in some ways, and the benefit of all in others. We could say that all will benefit, because all will have the right to non-market sharing, but that would not be fair: one does not buy a right, one just gets it. However, all will benefit from the richness of contents that can be shared on the Inter-net. Truly all: when the right to share is recognized, the existence of legiti-mate intermediaries will make sharing easy enough.
That is not the complete answer, of course. Most people supporting this ob-jection worry that significant rewards would only go to a few. But what are we it comparing to? It may be a few, but it will be many more than those who currently receive significant rewards from copyright. This may not be enough for everyone’s taste, but at least it is your taste that will decide who gets re-wards. And finally, less-than-proportional reward functions can be used to tune the spread of the distribution of rewards.
18. The Creative Contribution will consolidate the poor governance of collecting so-cieties.
Volker Grassmuck, one of the key proponents of the Kulturflatrate in Ger-many, was reported by (Cronin 2010) to have said:“‘Mafia’ is a widely used epithet for music collecting societies in many countries. The arcane area of collecting societies draws much public interest and anger.” There is a key contradiction, inherent in our present situation: collective management is
needed more than ever in the Internet age, because it is the only way to have an efficient, large-scale allocation of funds, without associating transactions costs to usage, but its present face is not attractive. The existing forms of collective management grew out of associations of co-opted authors defend-ing their own interests. They were then developed by persons who were sin-cerely committed to culture and the arts, but have turned themselves into organizations that serve interests often quite remote from the full creative ecosystem. Publishers, heirs of right holders, investors who have managed to get copyright assigned to them, and a few best-selling artists control their governance, which is often characterized by censal voting.10For these organi-zations, self-propagation and pursuing management interests are often high-er on the agenda than the inthigh-erests of culture as a whole.
We need to move away from this misgovernance, but we should not throw the baby out with the bath water. Our approach is to create brand new orga-nizations, with a new governance basis, and to trust the key distribution func-tions only to them. They will handle the minimal criteria for the registration of works, the measurement of usage, the calculation of rewards for works, the collection of user preferences for support to production and the environ-ment of creation, the organization of decision-making on how rewards are to be split between media, and the reporting to the public. The existing collect-ing societies will then have a choice. Either they must accept playcollect-ing by the rules of a reformed system, amend their governance, accept caring for all creators and contributors and not just their members, as a few already have in various countries (SPEDIDAM and, for a period, ADAMI in France, and more timidly STIM in Sweden11). Or they will continue to oppose these pro-posals, as most collecting societies have done, often to the point of support-ing the most repressive approaches to file sharsupport-ing. In this latter case, even the financial management of individual rewards will have to be conducted by a new organization.
19. In the name of commons, you are monetizing the non-market.
No, we aren’t, but the difference is a subtle one. We are financing the condi-tions of existence of a specific form of cultural commons. In a world where access to conditions of living and resources for production are monetized, commons can exist only if those who maintain and enrich them have ade-quate financial resources. The key differences between monetizing the non-market as described by Jeremy Rifkin in the Age of Access (Rifkin 2001) and our proposal lies in:
– the absence of transaction and control in the path of usage, – the empowerment of users.
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Social public goods and commons in modern societies are always financed by collective means. Publicly run schools are built by paid contractors, and tea-chers receive a salary. Elinor Ostrom, who received the 2009 Nobel Prize in Economics for her studies of commons governance, has stressed that the management of resources by user communities was a key approach to gov-erning commons. The true question is“is our proposal the right approach to finance cultural commons in the Internet age?” We certainly did our best to define one of the ways of doing it.
20. This will not stop the war against sharing.
This criticism was expressed by anti-capitalist thinkers. They consider the war against sharing as the essence of capitalism and doubt it would stop just because of the recognition of a domain of non-market sharing of digital works between individuals. Our ambition is more modest. We just intend to make sure that some essential capabilities are not taken away from people, and we trust that they will exert them in an empowering manner.
21. This will undermine other sources of income for creators, such as salary and fees.
This is a very legitimate concern. Each time a new form of delayed income is created, investors and employers may use it to put pressure on immediate wages and other forms of payment. This concern does not mean we should abstain, but vigilance is required.
12 From proposal to reality
It is time to reflect on whether and how the proposals developed in this book can attract a critical mass of support. The last few years have seen a subtle but signifi-cant evolution. Proposals for a flat-rate financing of culture and the recognition of file sharing first arose as a reaction against repressive laws. Geographically, they followed the world-wide dissemination of these laws, which was co-ordinated by a few interest groups such as the International Chamber of Commerce or special-ized media interest groups.1Flat-rate proposals were made in response to DRM anti-circumvention laws, then to “three-strikes and you are out of the Internet”
laws, and now to the present generation of laws requiring the compulsory filter-ing of sites. This process is still at work, but another agenda is developfilter-ing: the financing of sharing-compatible digital creativity is seen as a goal in and of itself.
This approach was present from the start, but less visible. In this concluding chapter, we outline the trajectories along which this autonomous agenda is un-folding. These paths will cross and part, blend and diversify, with unpredictable results. But they all have a role to play in laying the foundations for a sustainable digital cultural ecosystem, and making it a reality.