Fight for your Right to File-Share
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- Diane Gilmore
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1 Fight for your Right to File-Share Content Flatrate, not Copyright War Volker Grassmuck 21C3 28 December 2004, Berlin
2 Two Ways to Freedom voluntary: free-licensing one s own works : the Commons non-voluntary: a general framework of statutory guarantees of freedoms of usage : the Public Domain Larry Lessig: Us now, them soon. Individual and legal licenses are complementary. GPL, CC etc. leave out the issue of remuneration. Freedom of modification unlikely in legal license. 2
3 Copyright Law Legal default: creations are property. Freedom takes an additional effort. 3
4 Freedom in Copyright Law in general: protection of property AND the common interest (Art. 14 GG) in copyright: protection of intellectual property AND exemptions 4
5 Freedom in Copyright Law Limitations: 50/70 years after the death of the author => PD. Ideas, facts, text of laws and other public decrees. Exceptions: uses without permission by the rights holder for certain beneficiaries: education, science, press, disabled persons. For everyone: quotations, private copying for non-commercial purposes. Reservations and conditions: compulsory license (for musical recordings), mandatory collective management of an exclusive right (cable retransmission). 5
6 Freedom in Copyright Law Minimum mandatory exceptions (WIPO) Codifying user rights and development rights (WIPO development agenda) In order to tap into the development potential offered by the digital environment, it is important to bear in mind the relevance of open access models for the promotion of innovation and creativity. In this regard, WIPO should consider undertaking activities with a view to exploring the promise held by open collaborative projects to develop public goods, as exemplified by the Human Genome Project and Open Source Software. Towards a Treaty on Access to Knowledge and Technology. 6
7 Alternatives Innovation doesn t require monopoly rights, just on the contrary (Boldin/Levine) From property to liability (Calabresi & Malamed; Jerome Reichman) Universal Basic Income (Philippe van Parijs) Separating industry politics and knowledge politics. 7
8 P2P Filesharing Up to 80% of backbone traffic since Growing continously, undeterred by awareness campaigns or criminal and civil sanctions. Availability of works is solved by user-based distribution. The lack of compensation for creators, the criminalization of users and the dangers of DRM are the problems that need solving. 8
9 Content Flatrate From property to liability: Reducing the exclusive making available right {in p2p networks} to a remuneration right subject to {mandatory} collective management. 9
10 Content Flatrate - Neil Netanel: Noncommercial Use Levy - William Fisher: Tax adminstered by the Copyright Office, ultimately: income tax ( Promises to Keep ) - Larry Lessig: Compensation without Control - Jim Griffin: mandatory licensing to p2p services - Bennett Lincoff: A Full, Fair And Feasible Solution to the Dilemma of Online Music Licensing - James Love: The Blur/Banff Proposal: user choice of where their levies go - Peter Eckersley: Virtual Markets for Virtual Goods - Raymond Shih Ray Ku: Digital Recording Act - Dean Baker: The Artistic Freedom Voucher - Berlin Declaration on Collectively Managed Online Rights, 21 June
11 ACS: License - categories of works - beneficiaries / purpose - privileged uses (copying, making available, modification?) - tariffs Statutory license Mandatory collective mangement (von Lewinski) Voluntary license (EFF) 11
12 ACS: License Statutory license needs to pass the Three-Step Test: 1. certain special cases 2. which do not conflict with a normal exploitation of the work and 3. do not unreasonably prejudice the legitimate interests of the author. Irrelevant in case of compulsory or voluntary license 12
13 ACS: Paying in as flatly and therefore as anonymously as possible (Lionel Sobel: ISPs as Digital Retailers: compulsory licensing, but rights holders set wholesale price) mandatory or voluntary added to price of products and services the value of which is enhanced by free circulation of works. 5$ / month / broadband access (Fisher) 20% losses of music industry + 5% of film industry = 2,3 Mrd. $ / broadband users = 5$ 13
14 ACS: Paying out Reporting obligation by providers = download numbers + user sampling => Online Collecting Agency => Pay-out to members (authors, perfomers, publishers, labels, MSPs...?) 14
15 Content Flatrate 15
16 ACS: Counting plug-in for p2p servants proxy 16
17 ACS: Business From products to services added value (bottled water) Models Services for creatives Music lessons, production, PR, tour organization... Services for users genre collections, live-streams, web-radio... Services for exploiters film music, advertizing... 17
18 Costs of DRM <-> ACS R&D standardization infrastructure distributed: billions of end-user devices centralized: key management, renewal & revocation enforcement: prosecution weapons race R&D (marking) infrastructure distributed: download reporting centralized: Online-CS enforcement: reporting, gaming 18
19 Content Flatrate The online transmission right, collectively administered, and subject to a statutory license, is the best model for music rights administration in the digital age; it is a full, fair and feasible solution to the dilemma of online music licensing. If implemented, it will allow an online music marketplace to flourish. (Bennett Lincoff, former Director of Legal Affairs for New Media at ASCAP) 19
20 Open Questions Drawing the Line between: work categories territories global a la Kyoto, without the U.S. levy paid / not paid 20
21 Open Questions gaming leadership aristocracies in collecting society (edemocracy) social-democratic appeasement 21
22 Next Steps wide consensus to go for it. studies, conferences, hearings EU draft directive on collective management expected in spring
23 Thank you
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