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 per-tains 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.
Media inclusion
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) 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 vot-ing 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 cre-ated 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 per-sonalities and stakeholders have now changed their mind on the subject.5When the next repressive copyright law6was 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. Conver-gence may blur the boundaries between media and trigger the creation of mixed-media forms, but the economy of production of works in various mixed-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 propo-sal 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. Sur-veillance squads and fake injection providers may do business with the rights holders for a given medium, or use detection algorithms that are medium-speci-fic. 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 intermedi-aries, 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 be-yond 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
defining rights and obligations 81
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 in-frastructure 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. Pro-secution 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.
Mandatory or optional character of the inclusion of individual works 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 shar-ing of their digital works, usshar-ing 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 con-tributed 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 re-ceive 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 publish-ing contract: any author who wants a contract has to sign it. Almost every collect-ing 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 shar-ing, 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 situa-tion 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 socie-ties. 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.
defining rights and obligations 83
When does a work enter the non-market sharing sphere?
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 ap-plied only once the work is made public, not before. Similarly, the exchange of digital copies of a work in private correspondence does not constitute distri-bution 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 shar-ing, 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 distribu-tion at different times. For movies this sequencing between forms of dissemi-nation 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 se-quencing 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 re-main subject to the existing implementation of copyright law. It will be possible to sue producers and distributors of copies of these works for copyright infringe-ment. However, rights owners will not be allowed to impose the implementation of surveillance and control tools in the overall information infrastructure for this purpose.