How should we frame and serve cultural rights in the digital age ?

This post gives the core of what I said in the panel on « Legalizing file-sharing: an idea whose time has come – or gone? » in the Information Influx conference organized to celebrate the 25 years of IViR, the Institute of Information Law in Amsterdam on 4 July 2014. The panel brought together 4 people who worked on schemes to permit the legalization of file sharing and remuneration for creators of works that are shared: Neil Netanel, Alexander Peukert, Sévérine Dusollier and myself. Many others were sitting in the room and participated in the discussion.

The question brought to this panel is « Legalizing file-sharing: an idea whose time has come – or gone? ». To answer this question, we need to go to another much more important one : « How should we frame cultural rights in the digital age ? » We have guidance on this from great texts : article 27 of the Universal Declaration of Human Rights and in more precise terms, article 15 of the International Covenant on Economic, Social and Cultural Rights, adopted by all EU countries and signed but not ratified by the US :

Article 15
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

These are texts that are contemporary of the development of digital technology (computers for the first, the predecessors of the internet for the second) but it is fair to say that very few anticipated how digital technology would reshape us and our social interactions at the time. That’s precisely why they provide good guidance for us today. These texts pre-date the great brainwashing that occurred in the last 20 years of the 20th century, when the new capabilities of human beings were redefined as a problem. It took me 10 years from 2004 to travel back to what I consider now to be a provisionally sound approach to the definition of cultural rights in the digital age, and it is the end of this messy trajectory that I want to share with you now.

Let me summarize it with two affirmations:

  • The decentralized non-market sharing between individuals of digital expressive and creative works is part the embodiment of the “take part in cultural life” fundamental cultural right affirmed in UHDR and the covenant. This right includes non-market remix and reuse.
  • When one recognizes this as a fundamental right, we can drop any idea of compensation, and ask ourselves again: how can fulfil the second part of cultural rights, that is caring for the material and moral social rights of creators in the wide sense (authors, performers and technicians)?

Just accept to follow me in this as a thought experiment, and I bet some of you will soon realize that this is a one-way ticket. But you will have to overcome a few obstacles. The first one is going to be very hard for those, such as Nellie Kroes, who believe that sharing is a market failure. Actually it is the other way round: some forms of sharing such as centralized download and streaming can be seen as copyright failures, as they were widely promoted by the war on P2P sharing. More generally, no thinking can proceed about the digital world that does not start by recognizing the immense sphere of non-market activities. Yochai Benkler has stressed it for years, and now he insists on the need to protect this non-market sphere of sharing against the intrusion of market mechanisms in its intimate proceedings.

Let me thus outline in the time left how we could frame and implement these two rights, and why I believe it is feasible, even if it calls of course for a major political realignment.

  • For the right to share, the key question if how to frame it. The solution lies in enabling a sufficient separation and synergy between the non-market activities and the commercial cultural economy. With much help from opponents, we have worked with Lionel Maurel to refine a definition that includes : decentralization (of files) in storage spaces that are under sovereign control of individuals, the right to link, including for commercial provision of means to non-market sharing, and restrictions on any interference of centralized intermediaries with the sharing itself.
  • For serving the material interests of contributors to creative activities, there are great benefits of reasoning in terms of non-copyright based social rights. The first benefit is to remind ourselves that copyright-based revenues contribute only a small part of income even for most professional authors and artists. Even more importantly, any audience-related income, such as sales, rentals, licences to end-users, and advertising will inevitably represent a decreasing part of financing of creative activities, simply because there are more people, more works at all level of interest and quality and not more reception time for them. So what ? What must we add to the existing basket of income sources such as public subsidies, statutes and employment, services (teaching, performance and public projection of works), and derived commercial use? There is only one thing that can grow at the same speed that people’s involvement in creative activities, it is mutualism in all its forms: whether voluntary participatory financing or statutory contribution managed by contributors or basic income.

As some in this room know, I have spent some years working on one particular flavour of statutory mutualism called the creative contribution. Times does not permit to enter in all its details. Refer to my book Sharing: Culture and the Economy in the Internet Age for more information. In the augmented edition site for the book, interactive models can be used to adapt the creative contribution to a specific country and to tune it according to your preferences. Let me nonetheless precise that the creative contribution is to be paid by households and that it is meant not just to reward creators of works that are shared on the internet but also to finance projects and added-value intermediaries. Let me stress also what I see as a key condition for any statutory contribution: it should treat equally or preferentially those who contribute to the commons of non-market sharing. Despite what Alexander Peukert just presented as a perspective 1 copyright-based compensatory schemes base compensation on real or alleged harm.

Now, to conclude, I have not forgotten that we are here celebrating a legal research institute’s birthday. The how we recognize a right to share in material law is important, and I urge you to investigate in depth the potential of a new form of exhaustion of rights for all non-market activities in the digital sphere. Policy-makers have take a decision of excluding exhaustion of rights from the digital domain except for software in the article 3.3 of the 2001 Copyright directive. This decision was taken under the effect of stupefaction and fear of the effects of the digital revolution. We must review it based on a non-naive enthusiasm for its potential. This approach is elegant in the sense that it requires only minimal change to law and will leave all the edifice of commercial copyright unchanged (not meaning that is does not need change itself). However, I am aware that it will require no less than a political upsurge to obtain it. That’s true also of putting finance where it belongs, of re-injecting social justice for those “who do not own robots nor algorithms”, or of enabling an ecological transition of our economy. Are we going to renounce any of these things?

  1. Alexander Peukert proposes, on the basis of a possible reading of a CJEU court decision, to redefine the private copy levy mechanism so that it would reward only the authors and performers of contents that have allowed sharing on the internet. []

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