European Commission Consultation 2014 Internet user

You are an internet user who is interested in sharing and remixing cultural goods

The Internet should facilitate a wider and easier access to, and sharing of, cultural goods. Digital technologies have created new forms of art (or facilitated existing forms) that use existing artwork (mashup, remix, ...). Copyright regulation has to evolve to adapt to contemporary cultural practices. Alternative solutions to the problem of financial profitability of creativity and innovation exist already.

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To prepare your response, we recommend that you read the following proposals:

6. Resource pooling: new financing sources adapted to digital culture and its many contributors and projects

The increase in the number of creative individuals, observed at every competence or quality level, raises unprecedented challenges for the sustainability of creative activities. Attention or reception time can not grow at a similar pace: only demographic growth and the liberation of time for individuals can contribute to its growth, while other factors (media diversification, investment in producing works) may reduce it. Mechanically, the average compound attention time for a work will progressively decrease, until a new balance is reached between production and reception. Such a situation will impact the financial resources that can be collected by various channels and their respective share in the remuneration or financing of creative activities. These transformations occur in a context where the appreciation of creative and expressive activites is stronger than ever, as a consequence of a growing involvement of individuals in them. The willingness of a great number of citizens to contribute to their sustainability is certain However, this willingness is accompanied with an at least as strong rejection of the capture of income by distributors, pure financial investors or organizations without added-value for the contemporary creative endeavours. Sources of remuneration or financing that limit individual use, put in place surveillance mechanisms or install transaction costs in the path of use are even more rejected.

Which sources can we use to ensure that the growth of digital culture will be sustainable in the context descrived above? The following table outilines the potential and drawbacks of various mechanisms, with an indication of how they can or not extend to a greater diversity of contributors and works, and how much that can serve to identify and promote interesting works.

Source	Probable evolution of share	Examples and degree of distribution diversity
Public employment (salary and statutes)	↓ or =, cf. point 13	wide distribution
Public subsidies	↓ or =, cf. point 13	diversity variable according to policy
Parafiscal resources with curated management	↓ or =	ex: film funds in France, tax shelter or credit, part of home copying fees used for support to creative activities, limited diversity
TV production obligations (France)	↓	limited diversity
Sales and rental of contents to end-consumers	↓ or =	variable diversity depending on market organization, cf. point 8
Intermediation services financed by advertising	↑ or =	search engines, social networks, concentrated on large audiences
Cultural mediation	?	Limited resources but essential to quality detection in a universe without upfront filters
Commercial licensing	=	limited but extensible diversity
Human services	↑	ex : art teaching, concerts, theater viewings, conferences, etc. Wide diversity for teaching, dependant on market organization for theater viewings and concerts, cf. point 8
Voluntary resource pooling	↑	cooperatives, participative financing, support subscriptions : real diversity but limited by capabilities of platforms to attract donors
Society-wide statutory resource pooling	= or ↑	creative contribution, basic income, wide possible diversity, uncertainty on existence of the schemes

Some statutes of public employment such such as teaching and research positions play a major role in the existence of a diverse culture, including for digital culture. Both their numbers and the freedom of those occupying them are threatened. Their existence merits all our attention. Beyond this, three mechanisms have the potential of significantly contributing to the sustainability of a many-to-all cultural society. Each implements a form of resource pooling, but at a completely different scale. These three schemes are: voluntary cooperative resource pooling, statutory contribution organised by law but managed by contributors and basic income allowance.

Cooperative resource pooling (artist and author cooperatives, production and publishing cooperatives, participative financing intermediaries such as kickstarter or KissKissBankBank, etc.) undergoes an exciting development. It already plays a key role to federate efforts in creative communities or to pool funds for potentially orphan projects (f.i. documentaries, investigative reporting, useful software without immediate business models, etc.). One can consider that author and artist cooperatives and related editorial and publishing structures are the natural model of development of creative communities in digital culture. It is urgent to provide them with a more favourable tax and regulatory framework. This risks nonetheless not being sufficient to collect the needed resources. Can participative financing scale up to that level? There are significant doubts on this possibility, whether one consider scenarios with many participative financing intermediaries or with a few very large ones. The doubts arise from the fact that only dominant intermediaries can attract large groups of donors, and that their project presentation surface is limited. As a result the great majority of projects are not promoted on front page or by communication mechanisms and can count only on their preestablish networks.

Resource pooling organized by law (with a statutory contribution) is of a fundamentally different nature than tax or parafiscal mechanisms with public or curated management such as public broadcasting fees, the "avances sur recettes" scheme for movie production in France, or the sums allocated to support to creative projects or festivals within the home copying fee systems. In society-wide resource pooling, all funds are allocated by contributors, either through the preferences expressed or as a funtion of voluntarily recorded usage. In the Creative Contribution scheme advocated by the author of this document and supported by various coalitions of musicians, film players, consumer unions and NGOs, the collected sums are allocated:

• to support projects (production of works, project setup) and organizations (cooperatives, cultural mediation),
• to remunerate/reward contributors to works that have been shared outside markets.

The sums are allocated in the first case on the basis of preferences expressed by contributors, in the second case on the basis of data stored by voluntary users about their non-market use in the public sphere (P2P sharing, recommendation, posting on blogs, etc.). The flat-rate contribution is of the order of €5 per month per household in developed countries. This limited sum (at most 4% of the cultural consumption of households) of course means that the scheme does not aim at replacing the other resources listed above. The aim is to provide an additional resource, specifically adapted to digital culture and its great number of contributors.

This limitation has led other proponents to defend a scheme whose motivations go well beyond cultural activities, but which could play a key role in their sustainability: the inconditional basic income allowance. Also called existence income or citizenship income, it would be a sum distributed without any condition to every adult in some geopolitical or citizenship area. Every person could then allocate freely one's time to work leading to additional income or to non-market activites.

The three schemes just described are three possible compromises between ease of implementation and scale of the results. They also differ by their more specialized or more generic nature. This text's author judges that the creative contribution is particularly relevant for the years to come: it can support voluntary resource pooling and prepare the ground for more general schemes. Other policy proponents have different views. Public policy has the duty to explore how it could put in place or support each of these schemes.

11. Effective norms for the enforcement of network neutrality

For digital culture to deliver its potential, it must build on an infrastructure that is up to the challenge. We often take for granted what was actually a contingent opportunity: for 15 years, we were able to use reasonably open personal computers and a more or less neutral Internet. As information technology and the Internet disseminate in new domains and new use develops, these properties of openness and universality are seriously endangered by:

• the multiplication of devices that are controlled by proprietary players (in particular for mobile devices),
• the recentralization of services and applications,
• the attacks against network neutrality: discrimination against protocols, applications or sources; filtering and censorship; closure of devices in order to make it impossible or more difficult to go around these discriminations.

Network neutrality must now be understood as an exigence for all the chain that goes, for instance, from a mobile device such as a smartphone to a server operated by an end-user or under his or her control. European policy-makers and regulators made the disastrous choice of an attentist policy, while the evidence of harm is already present and acknowledged. Such an attentist policy amounts to accept the capture of the Internet as a common resource by the first comers or the more powerful. Up to now, only the Dutch Parliament (and in other geographic zones, Chile and Peru) adopted a network neutrallity law.

Maintaining and expanding a free common infrastructure, combining open devices and a neutral Internet, will require all the attention of the policy-makers and each of us. The lobbyists and the tears of the dominant operators of mobile telecommunication have up to now obtained the leniency of policy-makers. Let's not forget that they are responsible for a true predation on the budget of disavantaged households. The orientations of the European growth plan, elaborated in total improvisation, include a chapter on "smart networks" which should ring all the alarm bells. What we need are networks which it is smart to build, that is networks that stay efficiently stupid so that users can develop their creativity, their innovations, their sociality and their democratic processes without asking for permission to gatekeepers. As citizens, we must rise up against the resignation or leniency of policy-makers, make them accountable at each instant on what they do and what they don't do in these matters.

The intervention of legislators and regulators, as important as it is, will not suffice if we do not help it by our own choices. Let's not buy closed devices when there is a more open alternative, even if this means renouncing for a small time to some benefit in functionality or comfort (for instance for eBook readers). Let's host our precious contents and data only on our own servers or servers of trusted players who give us an excluive control on the data. Let's support projects such as the Freedom Box, and, if we feel like it, become pioneers of its usage. None of this should deprive us of the forms of use that give us new capabilities, but it means we must be more selective (ex: abstain from any presence on Facebook, make a relevant use of microblogging while keeping an open eye on alternatives to Twitter).

12. Compulsory registration or copyright 2.0

At the other extreme of the infrastructure, one finds the legal foundations of copyright (or the economic rights part of author rights). Renowned legal scholars in many countries have searched for limited modifications that could correct the main perverse effects of the present framework:

• the captation of copyright benefits by players who do not contribute to future creative activity (heirs, managers of stock of copyright, those assignees who have little consideration for the rights of authors and artists),
• the multiplication of orphan and out-of-publication works,
• the scarcity and weakness of the public domain for some media, and limitations to its accessibility and its use.

Part of these efforts converged on a proposal for rendering the benefit of the economic rights part of copyright dependent on a compulsory registration of works by their authors. This registration would be valid for a reconducible limited period (a few years). This proposals faces some difficulties: its requires a modification to the Bern convention and may be rejected by digital authors who are littled inclined to formalities. The commercial exploitation and in some cases reproprietarization of their works would become possible when they abstain to register them.

With a focus more directly connected to the digital world, Marco Ricolfi proposed a copyright 2.0 model, according to which works would be placed by default under a regime similar to a Creative Commons licence, except when their author would opt for the classical model of copyright. To prevent the risk mentioned above of undesired commercial exploitaiton or possible reappropriation, the licence could be of the By-NC ou by-NC-SA type, permitting reuse, but submitting commercial exploitation to an authorization. Both approaches (limited duration registration and copyright 2.0) can be combined, as suggested by Marco Ricolfi himself. The adoption of copyright 2.0 would not dispense from the recognition of non-market sharing of digital works between individuals (cf. point 1.) as this right can not depend on the will of a particular author, it is a direct consequence of the fact of having published a work in the digital sphere. However, copyright 2.0 would provide an elegant solution for remix rights (fair use type of rights such as quotation, parody, etc. remaining of course applicable even in the case of opting for the classic copyright).

13. Cultural public funding and tax reform

Among the infrastructures that make possible cultural activities, the resources of public action play a key role. They represent 30 to 50% of the financing of cultural activities depending on countries, maybe more if one accounted better for the contribution of indirect financing through statutes of teachers, researchers or similar jobs. Local government plays an increasingly important role, even though in some countries, the State continues to establish frameworks and models. The recent evolution of public financing raises serious questions. Public financing in the strict sense is at best stagnating, with a parallel multiplication of specific parafiscal fees feeding funds whose allocation is trusted to private or institutional players or expert committees.

Public financing plays a key role in making possible diffuse cultural activities through education, support to places and spaces, cultural mediation, long-lasting support to artistic networks. For all of this, resources are lacking. The parafiscal funds are often captured by instutionalized players, in a context that is not favourable to a renewal of forms and styles. This contributes to a distrust or rejection of specific cultural levies. Finally, in centralized countries such as France, the concentration of public aids on some large structures in the capital city constitute a major injustice.

Beyond the new mechanisms discussed in point 6, one needs to:

• Drop the inefficient gesticulations such as the Google tax once proposed in France, and act on the fundamental parameters of tax resources in general.
• Clarify in which domains public financing plays a key role and must be maintained or amplified.

For the first point, it is absolutely necessary to revisit the definition of the country of origin that establishes the location of tax for the profits of transnational companies (whatever is their assumed nationality). Tax on profits as well as VAT must take place in the country of consumption (acquisition of licences, distribution of advertising messages, access to an on-line service), as soon as the turnover in this country is above a threshold chosen to make sure that these provisions will not harm the international development of SMEs (for instance one or several millions euros). This approach is motivated by considerations that go well beyond the cultural domain, but it will be much more beneficial for culture than efforts to tax specific companies chosen for their nationality while trying ot protect their national equivalents.

For the second aspect, long debates will probably be necessary for outlining a new perimeter of public action, but one can already identify three domains where it is particularly relevant:

• To contribute to the basic conditions of cultural activities, in particular those conditions that enable individuals and small groups to engage into a durable exploration of creative paths without managerial constraint. The keyword is decentralization (towards local government) provided that resources are also decentralized (not just responsibility) and that the local actions are not small imitations of the central ones.
• To preserve and make available and usable the cultural heritage in all its facets. This task can and must today proceed in collaboration with the many societal projects for digitizing and making available the digital heritage. This collaboration will require the adoption of free use terms for the digitized works, including for commercial uses. Its impact will be as positive than the present public-private partnerships' is harmful: it will prevent the rampant reproprietarization of the public domain, and turn the public cultural institutions into trustees of the public domain instead of driving them towards participating into its privatization.
• To make possible for some costly projects and structures to exist, distributing them on various territories and submitting their activity to a critical debate.

14. A positive statute for the public domain and the voluntary commons

These last 30 years, the most important debates on culture and innovation regarded the respective definition of what can be made an object of private property or exclusive rights, and what must be considered as common. Examples of such debates were:

• the definition of the scope of patentability,
• the delineation of the use rights that must be recognized to everyone even for copyrighted works,
• the enforcement of exclusive rights and the burden of proof of either infringement or the legitimacy of use,
• the ability to share voluntarily one own'w works without being punished by losing some resources.

Such conflicts arise in an unequal playing field. Exclusive rights invoke property rights, identifying intellectual rights with physical property despite all evidence of their different nature. They are also powered by the thick wallet of right holders. In contrast, the rights of each of us are dispersed interests, which can invoke fundamental rights, but without the public domain and communs being granted per se a legal standing.

For these reasons, researchers and legal scholars formulated the project of a positive statute for the public domain, voluntary commons and essential user prerogatives towards works, including the prerogatives of creative workers who need to access and reuse existing works. The aim is to revert, or at least rebalance the situation where the public domain is at most considered as residual or as a market failure, the commons are considered as a territory that one has not yet been privatized, and the user prerogatives are considered as a tolerance that one has consented to because one had not yet found ways to annihilate them. On the contrary, as soon as a positive statute for these common entities will be in place, one will have to consider the impact of any measure on their perimeter, their growth, their maintenance and their effective accessibility.

15. No additional involvement of technical intermediaries in the application of copyright

In section VI of the public consultation, the Commission asks whether “the current legal framework [is] clear enough to allow for sufficient involvement of intermediaries (such as Internet service providers, advertising brokers, payment service providers, domain name registrars, etc.) in inhibiting online copyright infringements with a commercial purpose” and “If not, what measures would be useful to foster the cooperation of intermediaries?". The desire to involve and make responsible technical intermediaries, which was also at the heart of SOPA and ACTA, can be seen clearly here.

This reflects the repressive tendency that has characterised the evolution of copyright legislation for years. It will affect freedom of expression online, as well as jeopardising essential guarantees of citizens' rights which require the intervention of a judge and a fair trial. The principles applicable to the liability of technical intermediaries are regulated by Directive 2000/31/EC on electronic commerce, and have been laid out by jurisprudence in several european courts. The revision of the Directive on copyright should not weaken their status.