How to delineate the non-market sharing of digital works between individuals?

The last part of this post has been modified in September 2015 to reflect the outcome of debates on the risk of undue interference by providers of means to sharing with the activities of sharing for their commercial benefit.

In the years to come, the delineation of a non-market sphere of sharing between individuals of digital works will be a key policy issue. Such a delineation is of course a condition of recognizing a right for individuals to share most likely in association with putting in place a new contributive financing. Up to now, the attention has been mostly on defining “non-market”. I defend here that it is no less important to stress the fact that sharing occurs “between individuals” if we want for the new right to deliver positive cultural effects and to be in good synergy with other facets of a thriving cultural economy.

Sharing between individuals is the act(s) by which a copy of a file is transmitted (by swapping storage devices, by making it available on a blog or on a P2P network, etc.) from a storage “under sovereign control of an individual” to a storage under sovereign control of another individual. “Under sovereign control of an individual” is obvious for a personal computer, a personal disk or a smartphone1. However this notion also extends to a remote storage on a server, when the storage space is under the control of the user and no one else, for instance for the storage space of an ISP subscriber or cloud storage when the provider has no control whatsoever on the contents of the storage.

Sharing is non-market if it does not give rise to any income, direct or indirect (for instance advertising revenue) for any of the two parties. The notion of income is to be interpreted strictly, as monetary income or barter against a marketable physical commodity. In contrast, to enter into possession of a file representing a digital work that can in other contexts be marketed is no case an income.

Finally, if one legalizes non-market sharing between individuals, providing means to such sharing, for instance operating a DC++ hub, an eMule server or a BitTorrent tracker, without centralizing the digital contents themselves and without associating advertising to downloads or viewing/listening/reading should be legal, as providing the means to a legal activity should be.

However, to prevent providers of means to sharing from using their power to orient sharing according to their economic interests, it is important to condition the legality of this activity to the absence of interference with the nature of sharing. For instance, it would not be authorized to favour some works or some users who share more demanded works.

In symmary, there are three criteria:

  • that sharing is non-market for all individuals involved,
  • that file transmission is decentralized (from individuals to individuals),
  • that there is no interference by providers of means with what is shared or the performance of sharing.

This post is also available in: French

  1. There are some caveats for the latter, where the device manufacturer or the telecom operator often retains some control on the device and its contents, cf. f.i. the iPhone of an iTunes Match subscriber. []

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