Sharing is a cultural right, not a market failure

An endless stream of law proposals, soft-law initiatives and free-trade agreements keeps trying to eradicate or prevent the non-market sharing of digital works between individuals. New strategies are pushed using incentives and threats so that intermediaries will police the Internet to save the scarcity-based business models of a few from the competition of abundance. So is it business as usual? Well, no longer.

There are strong signs that citizens and digital rights organizations have reached a new maturity in what used to be the “piracy” debate. For many years, they of course stressed the damage that the war against piracy was doing to the Internet, to freedoms and fundamental rights. However, many seemed to have forgotten that the initiators of file sharing … called it file sharing. They feared standing explicitly for its legitimacy and looked for schemes that would buy peace in the war against P2P. They pushed for blanket licensing or licence globale proposals (whether optional or compulsory) that proposed to compensate a limited set of industries (motion picture, phonographic industry and a lesser extent TV) for the harm allegedly caused by unauthorized sharing.

This defensive compensatory approach was never the sole one. As early as 2002 the Blur-Banff proposal for instance was looking at a solution for making a sharing-compatible digital culture sustainable. From 2008, building on the earlier proposals from Richard Stallmann and Jamie Love,1 a number of civil society groups starting pushing an agenda that explicitly endorses sharing digital works between individuals as a fundamental right, rejects firmly any mention of “piracy” for such activities, and moves the debate on financing schemes towards addressing the sustainibility of a digital culture with many participants.

Examples of this re-anchoring of sharing into cultural values and challenges include the “sharing is not stealing” slogan of the anti-ACTA movements in Poland, Germany and France, proposals developed by civil society groups such as Centrum Cyfrowe and Fundacja Nowoczesna Polska in Poland or La Quadrature du Net in France, positions by scholars and activists such as Alan Toner or Savoirs Communs, and positions from human rights groups such as the recent Right to Share initiative of Article 19.

In this post, I would like to stress what we gain by standing for sharing as a cultural right and rejecting the economicist approach that considers sharing a market failure to be corrected by the promotion of a more attractive “legal offer”. This is not to say that a more attractive commercial offer of digital works in various media would not be an excellent idea. However, in no way can it be considered to “a solution to the sharing problem”. For 2 reasons:

  • Sharing is not a problem but a condition for the human (cultural) development. Entry of possession of digital files representating works and the right and ability to share them as one wishes with other individuals is the practical implementation of the “right freely to participate in the cultural life of the city” defined in the article 27.1 of the Universal Declaration of Human Rights. I have explained why and how and will keep doing it.
  • The eradication of unauthorized sharing, far from helping the commercial offers to be more diverse (in terms of diversity of access to works) and fairer (in terms of price, author remuneration, and user rights) creates the conditions for them to become worse, concentrating the attention on an even more restricted set of works, imposing proprietary platforms and formats, restricting use rights, transforming the individual is a precarious renter of contents.

Many civil well-meaning society groups and scholars have accepted for years distorted terms of debate. They thought that blaming the flaws of commercial offers for the existence of sharing was good tactics, that it would be enough to oppose the worse aspects of the war against sharing. They thought easier to not relate with the practitioners of non-for-profit file sharing between individuals (without centralization of contents) and those who make their activity possible rather than to stand for the legitimacy of what they were doing. In doing so, they indirectly contributed to the promotion of centralized download and streaming sites. They did not realize that accepting the market failure paradigm2 promoted the identification of culture with the commerce of its digital products and the related intermediation services. They failed to stress that the non-market sphere is a core component not just of digital culture but of all culture in the digital era. Worse of all they accepted terms of debate that prevented them to identify the real challenges of making digital culture sustainable. These challenges are huge and rooted in one simple fact : there are more and more valuable producers of interesting stuff that is made accessible to all and more and more of this interesting stuff. This creates internal (to digital culture) and external challenges:

  • How are we going to recognize the value of works in such a universe of abundance and bring them to the – relative – level of visibility which they deserve? This calls for a number of technical and social innovations that will keep us busy for tens of years, as well as for public policies such as a true competition policy preventing distribution monopolies, including by removing any DRM barriers to interoperability as sketched in the Elements for the reform of copyright and related cultural policies.
  • By which means can we make possible for a greatly extended number of contributors to creative activities to invest more time and gain more competence in their cultural development? This is what the creative contribution and other non-compensatory schemes (including voluntary resource pooling mechanisms) are trying to contribute to (in addition to existing sources of income or financing).

It is good news that the domination of the “piracy is a market failure” vision is ending, and time for those who not yet joined to realize that failing to recognize sharing between individuals as a cultural right is a by-product of market fundamentalism.

This post is also available in: French

  1. In addition to the already mentioned Blur-Banff proposal, one can mention the Paris Accord meeting of 2006. []
  2. The idea that sharing results from the absence of a sufficiently attractive commercial offer. []

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