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.
– a significant level of voluntary sharing by authors of their own produc-tions for short texts, photographs, new multimedia and video formats, and music for some genres (techno, electro, for instance),
– a significant, and constantly growing, level of unauthorized sharing, by various means, of digital works in all media.
There is no evidence of a shrinking of the overall creative economy. However, it would be obtuse to deny that information technology and the Internet have introduced a radical change: the public is becoming a distributor of works in its own right. Some economic actors, whose traditional business models rely on having exclusive control over copying and distribution, need to partly re-think their modus operandi. This is particularly true for phonorecord publish-ers, and to a lesser extent for video publishers. It is important to realize that their activities represent only a relatively small share of the economy of the relevant media, and will only be affected partially. However, the role of these publishers goes beyond mere reproduction and distribution, and it would be a serious cultural loss if some of their other roles (such as editorial selection, support and promotion of artists) were to disappear. Some aspects of our Creative Contribution proposal are intended to help the re-invention of these roles in the new context. Nonetheless, the corresponding economic players will have to adapt significantly. Until now, some, in particular major phonor-ecord publishers, have clung to the fiction of retaining exclusive control of copies. The result has been a disastrous reduction of the volume of the mar-ket, while new economic players offered a growing variety of titles, but were starved of access to distribution and promotion channels. The recognition of a right to share will break this vicious circle, particularly if it is associated with a stronger competition policy in neighboring markets, such as concerts and the distribution of phonorecords.
11. Why would people buy something when they can get it for free?
This is exactly what record publishers said when music became an important part of radio broadcasting, in the 1920s. At the time, records had only a weak competitive advantage over radio: they were not better quality, and certainly could not boast better ergonomics, when records had to be changed every three minutes.4Their sole advantage resided in the possession of an item, and the ability to play it at a time of one’s choosing. On the other hand, radio had its own competitive advantage, as a discovery channel for new music one did not know, or for live concert broadcasts. Radio soon became the key pro-motion channel for records. With time, this generated undesirable concentra-tion effects, as radio staconcentra-tions were increasingly bribed or seduced into playing only a limited set of titles.5But before that, radio turned out to be a blessing for record publishing.
clarification and counter-arguments 161
Today’s situation is different, and people who sell digital contents will have to ensure their offer has a different value to users than what they can get from file sharing. This can take many forms, starting with a guaranteed level of quality, and the possession of the work in a particularly attractive form, or one that is easier to preserve in the long term than digital files. But commer-cial providers can also attract paying customers by helping them to locate contents of interest to them, by allowing them to communicate with other users with similar interests or to interact with artists, or by providing extra functionality (for instance synchronization with scores, or navigation func-tionality in a motion picture) or other forms of added value bonuses. Even without such added value, selling digital contents that are also accessible for free can work, in particular when you allow people to do what they want with them (in the non-commercial realm). Of course, the prices will have to be reasonable.
12. This will prevent us from reaching a commercial Eldorado.
Let us put ourselves in the mindset of an imaginary content industry entre-preneur. “What if we could sell contents at monopoly prices, and charge more for more desirable items. We could prevent people from copying works, and even make them pay for each usage. And all this with reduced costs of production and distribution: we would get immensely rich. This perspective is more attractive than the gold rush.”
Unfortunately, this Eldorado is unattractive for the rest of us. To reach it, the entrepreneur in question will have to trample on just about every human right and every freedom necessary to exercise those human rights: the right to privacy, the freedom of information and communication, the right to due process and a fair trial, the right to access to education and knowledge, and the freedom to use the technologies of one’s choice.6The society needed for the Eldorado of on-line content sellers to exist would bear a striking resem-blance to the worst dictatorship we know of, as far as our freedom to use the Internet and information technology is concerned (although the motivations for surveillance, control and repression would be different).
Of course, most of the players who are searching for commercial success do not want to do so at such an extreme cost. It was a refreshing experience when during the debates on the“three-strikes and you are out of the Inter-net” HADOPI law in France, some key figures from the French movie scene (producers, film-makers and actors) stood up and declared that they were not ready to stage a war against their public (Lettre aux spectateurs ci-toyens 2009). However, even a few more steps in the direction of this fabled Eldorado could already cause irreparable damage. It is not unrealistic to ima-gine that a dual society would arise, where less-informed consumers would be imprisoned in the Eldorado, while a small niche of free-thinking citizens
would enjoy the benefits of information and knowledge sharing, albeit in a degraded form and at no small legal risk.
This is certainly not what content industry entrepreneurs want: they want to earn money by serving the public, the artists and the quality of their produc-tions. We sincerely hope that their know-how will be used to make our im-perfect real world a little better.
13. Why do we need file sharing when we already have streaming and centralized download sites?
Benjamin Bayart, the president of an associative Internet Service Provider in France, answered this question (Fradin 2010, excerpt from our translation):
Some obvious conclusions from the analysis presented in the report [of the French government on Network neutrality] were not drawn by the re-port itself. For instance, it explains that traffic has moved from a decen-tralized P2P model, which does not lead to international imbalances, to centralized traffic on streaming platforms or Youtube-type sites. [The re-port] also mentions the [three-strikes] HADOPI [law]. However, it does not draw the obvious conclusion. Why is the share of P2P decreasing?
Because it is being attacked from all sides. It is the healthiest technology for a stable, strong and sustainable network growth without problems, and it is this precise technology that [existing policy] is trying to stop.
P2P distribution should be supported. It is the only [form of distribution]
that will counter dominant positions such as Apple’s Appstore. [If the cur-rent trend continues,] iTunes will in the end have a global monopoly on selling music. [...] Interpersonal exchange, directly from machine to ma-chine, without technical intermediary, is the basis of the Internet. [...] The same contents can be distributed in less than 15 seconds in P2P when it takes 20 to 30 minutes with a central server. P2P is currently the most efficient and rapid means of distributing contents without destabilizing or damaging the network, and it can exploit localization. For dogmatic, poli-tical and technically erroneous reasons, [some governments] have aimed at damaging the best functioning tool.
The principal effect of HADOPI is to displace BitTorrent downloads in favor of Megaupload or similar sites, i.e. to go from a smooth system which does not create problems in networks to a completely centralized system, which creates artificial congestion points that should not exist!
So yes, indeed, there has been a displacement from decentralized file sharing towards streaming and centralized downloads, but it is the product of a bad policy, and it is already creating problems that will no doubt serve as an ex-cuse to implement worse policy (attacks against network neutrality).
clarification and counter-arguments 163
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