Aigrain - Sharing

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Grandiose und detaillierte Ausarbeitung eines doppelten Rechts auf "non-market sharing" und auf Vergütung. Als solche ist das Buch auch über den Themenbereich hinaus ein beeindruckendes Beispiel für eine "konkrete Utopie" bzw. "radikale Realipolitik."

Das Buch ist als kostenloser PDF-Download verfügbar.

Inhaltsverzeichnis 1 Exzerpt 1.1 Fundamentals of the Creative Contribution system (pp. 54-55) 1.2 "the principles of a new social pact" (p. 76) 1.3 Reward distribution 1.4 The register (p. 150) 1.5 On non-market sharing practices: 1.6 Moral Rights 1.7 The role of collecting societies: 1.8 On orphan works: 1.9 File sharing increases diversity of attention: 1.10 On changing business strategies by majors: 2 Backlinks

Exzerpt

• "If we recognize that individuals have a right to share digital works between themselves, how can we make sure that many will be fairly financed and rewarded for producing these works?" (p. 22)
• "Authors, performers, and contributors of all kinds will only support the recognition of the right to share if credible approaches to the sustainability of cultural activities are on the table." (p. 23)
• "sharing between individuals leads to very different practices in comparison to downloads or streaming from centralized sites: when individuals decide what to make available to others (and this could be all the documents they have in digital form), what they share directly reflects their preferences. By contrast, on centralized sites, there is a bias towards specific contents which are made more visible than others, either through advertising or because many other people are accessing them." (p. 29)
• "Pooling libraries is an old dream, already present in antiquity. The Ptolemies implemented it in a somewhat centralized and confiscatory manner: every ship landing in Alexandria was required to hand over any papyrus scrolls on board to the Library of Alexandria, where they were kept, the original owners receiving only a copy (Philips 2010)." (p. 30)
• "Sharing as cultural empowerment": "Sharing is an act of making something available to others, just like – in a more minor way – recommending a work to someone or – in a more involved way – re-using one in a creative process. This is why, even when one is not the author of a digital work, sharing it with others is a step towards cultural empowerment. This step is particularly important, because it can be practiced by all, at a very limited entry cost." (p. 32)
• "(W)e focus only on two dimensions of cultural diversity: the range of works that are accessible to users in practice, and the diversity of attention given by users to works in various media." (p. 33)
• "During the first years of development of the Web, the media industry largely ignored it. Retrospectively, it seems that it simply did not fit their world view, precisely because of its non-market character." (p. 35)
• Different sharing licenses: "Meanwhile, the first license explicitly authorizing sharing at least for non-commercial use, the Open Content License, was released in July 1998, soon followed by the GNU Free Documentation License in March 2000, the Licence Art Libre (Free Art License) in July 2000, and the Creative Commons Licenses in December 2002. As we have already mentioned, the unauthorized sharing of copyrighted material underwent something of an explosion in the same period with the birth of Napster." (p. 33)
• "If and when file sharing is recognized as a legitimate activity, it will become possible for users to choose technology and services based on their merits and properties, and not just because it is less risky to use one than the other. This would transform the current situation not because of the existence of file sharing, whose already massive scale would increase yet further, but because of the official legitimacy of exchange practices. It would result in a wider attention to creative works and a better recognition of their authors. The diversity of works able to reach a significant audience would vastly increase. The quality of the digital representation of shared works would be much improved. New services would emerge to support these exchanges. Creators and producers would compete to set up the most productive relationships between individuals and the other cornerstones of the creative economy, namely on-line artistic communities, services such as concerts, teaching or projection in theaters, or new forms of publishing on carriers such as collector sets and mixed-media publishing." (p. 47)
• "There exists a caricatural view of the Internet, which prevents a constructive reflection on financial resources for creative activities and culture. (...) As for the black hole scenario, it is factually erroneous: whatever negative impact results from the development of non-market sharing will be limited, and will affect only certain forms of cultural economic activities and sources of income for authors, whilst others will be affected positively." (p. 49)
• "the overall economy of music has never stopped growing, if one considers not just the market for recorded music, but also concerts, teaching and instruments" (p. 50)
• "public subsidies will remain essential" (p. 53); "Public Subsidies by all levels of government represent 30-50% of the financing of cultural activities in developed countries." (FN4 in chapter 4, p. 209)
• "We consider in this book, in addition to voluntary resource pooling, a mutualized financing scheme for cultural and expressive activity, based on a statutory (compulsory) financial contribution. We call this scheme Creative Contribution." (p. 53, emphasis in original)
• "The general intention is to offer users access to a wide range of works, without giving them the right to share it with others. Can the Internet become a giant on-demand TV system? The appeal of such a solution for media companies is double: they might derive some income from selling the right to give access to contents to intermediaries, but more importantly, they retain the ability to concentrate attention on a few works by controlling a limited number of distribution channels on which promotion and advertising can be targeted. This is their deeper reason for opposing sharing: when hundreds of millions of individuals have the right to share, they become a distribution medium of their own. (...) Worst of all for the large media industry, it is harder to predict which ones will." (pp. 60-61)
• "People may access works free-of-charge on advertising-funded sites, or may have to make unit or subscription payments, but in all cases the exchange of contents between users is prohibited. This idea comes in many flavors, which we briefly describe below because they illustrate the power play between media corporations, telecoms companies, new intermediaries, and collecting societies where they exist. We designate the various flavors according to the relationship between various types of players: vertical integration, distributor monopoly, right holders cartel, and collective management under a legal license." (p. 62)
• "the value of access to digital contents is highly dependent on what one can do with it. " (p. 65)
• "We propose to distinguish between two main approaches: compensation schemes on one side, and social rights to economic and cultural benefits on the other side." (p. 65)
• "There are pros and cons to each type of compensation scheme. Liability torts simply compensate right holders for their inability to enforce their exclusive right in the private sphere. They do not create a right for individuals to share works, but only a tolerance. Rights holders are likely to interpret this as being subject to review each time a new surveillance or control technology suggests that copyright could become enforceable in the digital sphere. Copyright licensing to individuals does grant users a true usage right, but it opens the door to a permanent renegotiation of the rate at which it is licensed. Government-administered rewards bypass this problem by moving the management of rewards out of the copyright system ... once they are established. However, given that their amount is based on compensation, there is a risk that their introduction would give rise to an avalanche of compensation claims." (pp. 66-67)
• "However, while the media and related industries cry out that file sharing (so-called “piracy”) is devastating them, this is simply not true if one looks at the overall bottom line. All indicators are green, except for the investment of the musical majors in publishing new titles. In the US, the overall personal consumption expenditures for recreation (including all cultural or media products, plus sports and amusements, but not information services) grew by 44% from $586,000 million in 2000 to $841,000 million in 2007.13 The motion picture and video industries, which constitute one of the most vocal copyright interest groups, saw their turnover grow from $72,000 million from 2004 to $82,000 million in 2007." (p. 67)
• "from 2004 to 2007, the average time spent listening to recorded music in one year went down from 199 to 177 hours, an 11% decrease." (p. 67)
• "A compensatory reward would indisputably be a positive way out of the war against file sharing, but it risks building an excessive bias into the reward models of the future." (p. 69)
• "can we agree on how much we want to invest – by this particular means of a contribution by all users – into the existence of cultural commons that are accessible and sharable by all?" (p. 70)
• Core Idea: "The overarching principle is to define two positive social rights: the right to access the cultural commons of non-market sharing, and the right to be rewarded for one’s contribution to their enrichment. (...) How much are people willing to pay for these two rights to be implemented (together) in practice?" (p. 71)
• "If copyright royalties grow more than proportionally to sales for physical cultural goods such as books and CDs, as is often the case, who says that a social reward can’t grow less than proportionally to usage in the information sphere?" (p. 71)
• "New user capabilities (such as making many copies of a work and transmitting them to other persons over a network, without losing the original) give existing recognized user prerogatives a much wider scope. " (p. 72)
• Three-step test: "These conditions are known as the three-step test, the first step being that the exception applies only in special cases, the second that it does not conflict with the normal exploitation of the work, and the third that it does not unreasonably prejudice the legitimate interests of the author. (...) One can also doubt that some existing forms of media publishing and distribution clearly constitute “normal exploitation”. Is a form of exploitation in any way “normal” if it survives only by limiting the basic capabilities of human beings in a digital world (copying files, for instance), by organizing universal surveillance of personal communications, by criminalizing tools that are also used for legal purposes, and by threatening individuals with criminal sanctions for conducting activities that did not aim at personal profit and did not demonstrably hurt anyone?" (p. 73)
• "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 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." (pp. 81-82)
• "an optional system would lead to complete legal uncertainty for users, with huge transaction costs." (p. 83)
• "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”)" (p. 83)
• User obligations (p. 86):
  • "They must respect the right to attribution of works to their authors, as expressed in the Bern Convention."
  • "Users must also abstain from removing or tampering with the unique identifiers included in files representing works, which are used for the collection of data needed to reward creators." (p. 86)
• "Intermediaries and commercial services: When an activity is legitimate and legal, providing means to do it must also be legal, whether it is done free-of-charge or against payment. (...) (a) Any service that does not give access directly to works, but only points users to where and how they can obtain them from other individuals, should be recognized as legal, whether it is free-of-charge and advertising-free, or not. (...) (b) Services which use advertising or subscription to give access to contents directly, whether for download or streaming, are clearly excluded from the benefit of the right to non-market sharing." (p. 87)
• Libraries: "part of the role of legal deposit libraries or reference libraries will be to “seed” a reference copy, in the sense of the BitTorrent protocol or – most probably – one of its successors, that is to initiate the chain by which milliards of people can, if they so desire, have access to these works." (p. 88)
• "How much?": "We need to answer two questions simultaneously: what is the minimum amount of finance needed to enable the cultural digital commons to develop to its full potential, and what are the limits to what households can contribute to this development by means of a flat-rate contribution? How much is enough, how much is too much?" (pp. 89-90)
• "A reward system that specifically takes the Internet into account will reward many more creators than copyright royalties, as we will see below." (p.91)
• "Finally, there is production, the most deceptive word of our debate. When we discuss our proposals for the legalization of file sharing with creators, only very few inquire about lost income." (p. 91)
• "Interestingly, the figures obtained in various developed countries are relatively similar. This should ease the handling of international issues connected to the Creative Contribution somewhat." (p. 100)
• "This is exactly what the Creative Contribution can bring: a means for participative production to reach the necessary scale, in a society where users are co-producers. This role should be seen as a complement to participative funding intermediaries such as Kickstarter, and not as a replacement for them. Their role as quick and agile grassroots resource collectors will remain immensely valuable. The model of competitive intermediaries presented above on page 79 is the ideal vessel for society-wide pooling of production resources. (...) Each year (to avoid the frequent repetition of a complex choice) Internet users would decide to allocate given percentages of the production part of their financial contribution to intermediaries of their choice." (p. 104)
• On File Sharing: "File sharing Internet traffic grew by a factor of ten between 2003 and 2009, the weekly traffic growing from one terabyte to ten terabytes. (...) Oberholzer-Gee and Strumpf note that no serious study ascribes more than 20% of the recent decline in sales to file sharing, the most rigorous ones finding no evidence of a specific negative impact." (p. 110)
• "That the revenues of artists – considered as a class – would significantly increase if a reasonable flat-rate financing by Internet users would be put in place was never really in doubt." (p.113)
• "If one feared an adverse effect of the Creative Contribution on the ability of poorer households to access broadband Internet, two approaches could be followed to prevent it. One is to exempt poorer households, or make the contribution itself income-dependent." (p. 125)
• "he Creative Contribution, which is not a tax to fund public actions, but a pooling of resources within a society where all are contributors." (p. 125, emphasis L.D.)
• Model of core organizational components on p. 138
• "The fact that we collect possession, access or recommendation information (we call them usage clues) and not hard proofs of user enjoyment will no doubt be deemed unsatisfactory by some. (...) Clues are just an honest word for indications of interest, whose aggregate sum will be a valid basis for a reward system." (p. 147)
• "A total percentage of 4% ($214 million for the US, €35 million for France and €49 million for Germany) would remain well below the management costs of existing reward and incentive systems, including those managed by private organizations: Kickstarter, for instance, keeps 5% of the collected funds for its management costs and profits." (p. 156)
• "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 excuse to implement worse policy (attacks against network neutrality)." (p. 163)

Fundamentals of the Creative Contribution system (pp. 54-55)

• • 1. "Everyone who has access to broadband Internet benefits, or will benefit, from the digital cultural commons, of which sharing is a key enabler. It is thus legitimate to ask everyone to contribute to the existence of the works that populate these commons, to their quality and to the recognition of this quality. This contribution must come with cleared stated rights, and each contributor must have effective powers to choose how this contribution will be used.
  • 2. "The first aim of this contribution is to reward creators and other contributors to works.
  • 3. "t is also legitimate to ask the users of an Internet where non-market sharing is free to contribute to the production of digital works whose creation requires upstream investment. However, this contribution must bear a relation to the extent to which these works are targeted to or used on the Internet. (...) The allocation of funds for support to production can be entirely based on contributor preferences.
  • 4. "Finally, it is also important to support an environment where interesting works can be detected and recognized. This calls for numerous actors and functionality enabling the users to find, recognize, and construct quality in a sea of works."

"the principles of a new social pact" (p. 76)

• • "1. The non-market sharing of digitally published works between individuals is a legitimate right of all."
  • "2. All who have access to this particular form of cultural commons have a duty to contribute adequately to its existence through a flat-rate Creative Contribution."
  • "3. The amount and distribution of this contribution must respect a number of principles regarding: the revenues of individual creators, the financing of the production of new works, the equitable character of the distribution in relation to activities conducted over the Internet, and the impact on the welfare of all."

Reward distribution

• • "A reward system must transform the ranked distribution of usage per contributor into another distribution, of financial rewards." (p. 93)
  • "If a given work is 3 times more popular than another, should the corresponding reward be 3 times larger? Less? More? Many people assume that rewards must be proportional to use. This is definitely not the case in the existing copyright systems, where the royalties grow more than proportionally to the sales. A best selling author will receive 50%, or even 100% more royalties for each book sold than most authors. This trend is even more pronounced for music. On the other hand, as we will see, in the digital world there are excellent arguments to justify a less-than-proportional reward function." (p. 94)
  • "the key reasons to adopt less-than-proportional reward functions are not economic, they are social and cultural. It is a desirable property of culture that some works, and those who create them, will attract the attention and appreciation of very many. It is, however, socially damaging if this attention leads to levels of income and wealth utterly disproportionate to the cost of producing the works, or the income needed to maintain a good standard of living. Rishab Ghosh stressed that, in the digital world, the value lies in the existence of a work, and not in each of its copies (Ghosh 1998)." (p. 96)
  • "Another approach to less-than-proportional reward functions has been implemented in practice in Sweden. The compensation system for loan libraries uses a “topping-off” mechanism: authors are compensated proportionally to the loans of their books up to the annual median wage (€16,000). Beyond that, they receive only half of the proportional reward. If their total compensation exceeds €19,000, they receive only 10% for any further loans." (p. 96)
  • "There are also limits on the minimum reward to be distributed to an individual, for two related reasons: transaction costs, and the social acceptance of the reward system." (p. 97)

The register (p. 150)

• • "in the context of a reward system for a legal activity, there is fortunately a much simpler approach: let the producers of works identify them voluntarily, by registering and tagging them." (p.150)
  • "The US Copyright Register contains 61 million entries, of which 16 million are in a digital database." (p. 150)
  • "The register must be public and publicly search- able and downloadable, in order to make it possible for creators or their representatives to check that their works have not fraudulently been registered by others." (p. 150)
  • "Mass registration should also be possible, for instance for the works already included in a copyright register, or for works regis- tered with collecting societies." (p.151)
  • "It should be noted that the registration described in this section is not a form- ality in the sense prohibited by the Bern Convention article 5.2: it is not a condition for obtaining copyright, nor for proving one’s rights in a copyright procedure." (p. 151)
  • "in addition to the abusive registration of works, one possible form of fraud could be the production and dissemination of copies of works in which the digital identifier has been replaced by the identifier of another work. This can be prevented and detected relatively easily using cryptographic integrity checks." (p. 151)

On non-market sharing practices:

• • "(M)aking sharing a crime will not stop it, but it might prevent it from achieving its cultural potential." (p. 25)
  • "It is thus in the ‘non-market’ sphere that the advantages of the information revolution are most evident: access to works and knowledge and evaluation of their interest, distributed co-operation towards the production of informational tools such as software, collaborative media, etc." (p. 28)
  • "In the information era, cultural practices are growing at an unprecedented rate, precisely as a result of the fact that they are, for the most part, non-market. These new activities cannot be financed only by traditional means." (p. 50)
  • Internet usage in the non-market sphere is an extraordinary tool for the discovery of new works, precisely because it is not hindered by monetary transactions or decisions on how to allocate funds." (p. 81)
  • "The key promise of information technology and the Internet is to enable a manyto-all cultural society, a world in which very many people contribute works or productions that are accessible to all, many of these works deserving the interest of some, and a significant number the interest of many." (p. 93)

Moral Rights

• • "Aside from the limitation to non-market exchanges, we have not so far defined the rights that the mechanism we propose would give to Internet users, nor the associated obligations. In terms of rights, one can envisage two approaches: (1) restrict them to reproduction and communication to the public: each and everyone can receive works, send them and make them available to others (and of course read, view and listen to them, etc...); (2) also include remix rights to produce modified works based on the works included in the mechanism." (pp. 84-85)
• "However, legal constraints have been proven to be far from incompatible with authorizing remixes: in practice, many legal provisions authorize transformations (such as the insertion of advertising in movies) whose effect on the integrity of works is far from negligible." (p. 85)
• "Of course, the remix rights would be associated with an obligation to indicate sources and properly signal modifications and their authors." (p. 85)
• "The recognition of a right to share is by no means the end of the debate on the scope of user rights, and fair use rights or exceptions are no less needed in an environment where sharing is recognized." (p. 86)

The role of collecting societies:

• • "The situation is different for some media that preexisted the Web, in particular recorded music and moving image, and more recently books. There, certain players have such a degree of control over the commercial distribution, promotion and revenue sources that they can dissuade many artists or producers from practicing voluntary sharing. In some cases, dissuasion is replaced by prohibition: collecting societies for music in Europe almost always require their members to give an exclusive management mandate for all rights on all works. This effectively forbids authors from explicitly authorizing non-commercial sharing of their works between individuals." (p. 35)
  • "One of our key policy recommendations is that the publication of the distribution data for rights collected by collecting societies from each type of source should be required by law. " (p. 39)
  • "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)." (p. 83)
  • "Collecting societies already set such thresholds on distributing the collected rights. They are criticized because of the manner in which the “undistributed” rewards are handled. The corresponding fees are collected (paid by users), but in most cases, they are distributed to the more favored beneficiaries, on a prorata basis following their other benefits. In other words, the least popular creators are made to subsidize the most successful. Such a problem will not exist in the case of the Creative Contribution: the amount of the fee is computed while excluding the rewards that are not distributed." (p. 97)

On orphan works:

• "Unauthorized or tolerated sharing is of particular importance for orphan and out-of-publication works, categories that cover a very significant share of our culture." (p. 35)
• "Though this may seem strange, some public organizations have also turned a large part of our public domain cultural heritage into a new form of property: heritage organizations such as libraries, museums and archives, often totally or predominantly funded by the public, claim exclusive rights on the digitized versions of these works, and fail to give access to them under conditions that respect the rights of everyone towards the public domain." (p. 35)

File sharing increases diversity of attention:

• "even if our estimates are revised in later studies, the strongly increased diversity of attention in this type of P2P file sharing compared to commercial downloads will still hold. These findings are consistent with those reported in a study using interviews of sharers (TNO 2009). However, we will see below that not all forms of sharing have so positive an effect on the diversity of attention to works: BitTorrent sharing appears to lead to a more concentrated access to works." (pp. 40-41)
• When digital works are shared clandestinely, the resulting diversity of attention is lower than when sharing occurs in the open.

On changing business strategies by majors:

• "Just when more titles than ever were published on records and DVDs, the majors have chosen to restrict their offer: the number of music titles distributed by major companies has shrunk by a factor 4 or 5 at least. (...) a key foundation of their present business models is their ability to concentrate the public’s attention on a limited set of works. (...) This is clearly at loggerheads with the trends favored by sharing: increased diversity of attention and enlarged range of accessible works." (p. 44)
• "Major publishers have reacted to their inability to enforce their exclusivity on the distribution of digital works by restricting supply and focusing marketing on a small number of titles. This has so far enabled them to maintain and even increase per-work profits, but at the cost of a reduction in the overall size of the market and of the resulting income for all but a few artists." (p. 50)

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