While the corporate and legal attacks against filesharing stack up and accelerate, delaying and complicating real solutions that can satisfy both artists and the sharing communities, there seem to be congruent developments pointing to a solution, especially accelerating in Europe.
First, I would like to recommend Kevin Carson’s overview article on the issue of intellectual property as such:
“He finds that IP is an artificial, rather than natural, property right; creating scarcity rather than managing it. In that capacity, it has acted as an unjust and irrational state subsidy to corporate capitalism — distorting markets, doing violence to the concept of real property rights, forcibly transfering wealth to parasitic cartels and generally having a pernicious impact on the US domestic and global economies that is difficult to overstate. He concludes by debunking the myth of IP as supposedly necessary for incentive reasons.”
But as abolition is unlikely to occur any time soon, it is more likely a hybrid situation will prevail, but that it can be transformed to benefit much more the creators and sharing communities, than the corporate intermediaries.
In this context, it is important to read Volker Grassmuck’s review of political developments in Europe, showing that the Greens, and most likely the social-democratic parties, are moving towards supporting and proposing a cultural flat rate or ‘blanket license’, whereby a small levy would be put on internet usage, in order to legalize filesharing while also funding the artists.
It’s a very long summary of the situation, based on a German report commissioned by the Greens, also reviewing U.S. counter-proposals for voluntary market schemes.
Excerpts from Volker Grassmuck:
“Grietje Staffelt, Green MP and media-political speaker of the federal parliamentary faction of Bündnis90/Die Grünen, said the main advantages of a culture flat-rate in her view are that it would decriminalise P2P users, remunerate creatives and relieve the judicial system and the ISPs from mass-scale prosecution. It would do so, she continues, in a way that ensures the basic rights enshrined in German constitutional doctrine of a citizen’s right to informational self-determination and of the privacy of telecommunications.
Prof. Dr. Alexander Roßnagel, scientific director of the Institute of European Media Law (EML) and vice-president of Kassel University, then introduced the minimum requirements for a culture flat-rate:
1.) a legal licence permitting private individuals to exchange copyright works for non-commercial purposes.
2.) a levy, possibly collected by the ISPs, flat, possibly differentiated by access speed; and
3.) a collective management, i.e. a mechanism for collecting the money and distributing it fairly. As the expertise of Roßnagel’s team has shown, it requires legal changes but these are feasible within the framework of existing German and European law.
Furthermore, the study concludes: “The legal introduction of the culture flat-rate … is nothing less than the logical consequence of the technical revolution introduced by the internet.”
Details about developments in Europe:
“That the world will go flat has been the conviction of many cognoscenti since file-sharing saw the light. By now even government representatives like the Norwegian Minister of Education publicly state that there is no future in fighting against file-sharing and that non-commercial file-sharing should be legalised.
The EML study starts out by stating that lump-sum levies are a well-established instrument for uses that occur on a mass-scale and therefore defy individual control. But the concrete design of a culture flat-rate may vary considerably from voluntary business models to a legal obligation, covering all digitisable culture objects or only specific types of works, on a national, European or international level (p. 4).
Indeed two schools begin to emerge for the file-sharing flat-rate. One proposes an explicit exception in copyright law and a redistribution from society to creatives via collective management. The other is a voluntary market solution based on contracts among companies and between companies and consumers.
The earliest contributions to the debate came from the US, and they favoured models based on law, copyright office and collecting societies. E.g. Bennett Lincoff, former Director of Legal Affairs for New Media at ASCAP, proposed to create a new ‘online transmission right’ that would combine the existing reproduction, performance and distribution rights for online purposes and make this new right subject to a statutory license, administered by a single rights collective. It would require a system for registering and marking works and for monitoring their online transmissions. licence fees would be paid by service providers and by users of P2P file-sharing networks. (A Full, Fair And Feasible Solution To The Dilemma of Online Music Licensing [pdf], November 2002)
Neil Netanel, Professor at the University of Texas School of Law, also proposed permitting non-commercial P2P file-sharing of not only music but any kind of digitisable work in exchange for what he calls a “Noncommercial Use Levy.” It would be imposed on consumer products or services that are substantially enhanced by file-sharing, including copying devices, blank media and MP3 players but also internet access and P2P software and services. Interestingly, Netanel also suggested to include non-commercial remixing both in the legal permission and in the remuneration (Impose a Noncommercial Use Levy to Allow Free P2P File-Swapping and Remixing [pdf], November 2002)
William Fisher, Director of the Berkman Center for Internet & Society of Harvard Law School, was the first to give a book-length treatment of the issues involved and of a spectrum of alternative compensation systems to solve them (“Promises to Keep,” 2004). Fisher favoured paying the compensation through the income tax as the most fair, arguing that greater income allows one to buy more and better entertainment equipment and take greater advantage of the new distribution technologies, but saw it as politically not feasible. Fisher therefore followed Netanel’s proposal of a levy on devices, media and services, calculating a levy of USD $5.36 per month on top of ISP charges. He discussed all the elements of such an alternative compensation system, from registering works with the Copyright Office, to marking them and tracking the frequency with which they were listened to or watched, to measuring and compensating underlying works of remixes and methods for fraud prevention. His overall goal is enhancing ’semiotic democracy,’ “enabling the public at large to participate more actively in the construction of their cultural environment.” (p. 241)
Part of that system is, of course, already in place in continental Europe: a non-commercial private copying permission with a mandatory levy on devices and media. The private copying exception was invented by the German lawmaker in 1965 and turned into a highly successful export product that was quickly copied – good that legislation is considered to be in the public domain – in Continental Europe and beyond (see Bernt Hugenholtz, Lucie Guibault & Sjoerd van Geffen, The Future of Levies in a Digital Environment, IvIR, University Amsterdam, March 2003, p. 11 ff. [pdf]). It now serves as model for the culture flat-rate. The logical next step would thus be to extend that time-tested model to the internet and possibly to remixing as well.
Such a system was first established in Hungary by making the new WCT making available right subject to mandatory collective management. As mentioned before, this implementation that was later abolished was reported on by von Lewinski, and served as the legal model in the French flat-rate movement in 2005. The Alliance Public Artistes, a broad coalition of 15 organisations of musicians, photographers, designers, internet-users and consumers proposed a ‘licence globale.’ It commissioned studies on its legal, technical and economic feasibility, and gained parliamentary support from Socialists as well as Conservatives. And one night in December 2005, their amendment to the French copyright law implementing the global licence was actually passed into law. As soon as the rights industry found out, they raised hell at Midem 2006, and the decision was reversed.
When in January 2008, a commission instituted by French president Sarkozy and headed by Jacques Attali issued its final report [pdf] on policies to overcome restrictions to economic growth, the broad range of 316 proposals also included a levy on internet use. In the objective leading to Action 57 it is defined as a reconciliation of economic development and free legal downloading. The report argues that introducing controls of individuals’ internet use like filtering and monitoring would be a major impediment to growth and conflict with constitutional rights of privacy and individual liberties. Thus a lump-sum levy paid by ISPs to the various collecting societies would ensure a fair compensation for artists without penalising internet development.
The second book-length exposé of a legal flat-rate also comes from France. In “Internet & Création” (October 2008, pdf. Short English summary), Philippe Aigrain develops detailed proposals for each of the building blocks of such a system, including an empirically-based modelling of its impact on cultural diversity and measuring usage of works by means of a statistical panel. His core concept is that of “creative contribution,” i.e. creatives contributing their works to society and society in turn contributing remuneration back to creatives.
This proposal is receiving broad support both from the creative community and from MPs in France. Socialist MPs had tabled an amendment to this effect in the debates on the Creation and internet bill. A new coaltion “création public internet” has recently been formed by founding members La Quadrature du Net, UFC Que Choisir, ISOC, SAMPU, an association of artists from music, dance and drama, and Pour le Cinema, a group of movie directors, producers and actors set up to speak out against HADOPI.
Aigrain discusses different possible legal solutions, including a third alternative next to a copyright exception (Roßnagel) and mandatory collective management (von Lewinski / Lucas): an extended collective licence. This instrument is widely used in Nordic countries since the early 1960s for broadcasting and cable re-transmission and has recently been applied to the reproduction of works for educational purposes and the digitisation of works in libraries, museums and archives.
The Nordic model is also at the core of a Position Paper on File-Sharing and Extended Collective Licensing (March 2009) by NEXA, the Center for Internet & Society at the Politechnic of Torino. The NEXA paper points out that since extended collective licensing is not a copyright exception but a support mechanism for freely negotiated licensing agreements it does not require changing the EUCD which expressly provides for that possibility in recital 1825. It also cites the “Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works” [pdf] by the EU High Level Expert Group (June 2008) which suggested extended collective licensing as a solution to the issue of unknown or non-locatable rights-holders.
Expectations are high regarding the Isle of Man, ever since government official Ron Berry announced at MIDEM 2009 that they will simply go ahead and legalise P2P file-sharing in exchange for a nominal monthly licence fee.
The Roßnagel study stands in this tradition. He is not the first legal scholar in Germany to speak out for a culture flat-rate. Thomas Hoeren, Norbert Flechsig, Artur-Axel Wandtke and Alexander Peukert have done so. In addition, representatives from the music industry (e.g. former Universal Europe CEO, now head of Motor Entertainment, Tim Renner or music advisor Gerd Leonhard) from collecting societies (Alexander Wolf, GEMA) and from activism (privatkopie.net and FairSharing) all have posited the flat-rate as the only meaningful solution (for an overview on the German and global debate s. Grassmuck, State of the Culture Flat-Rate, March 2008).
But the EML’s is the first large juridical paper in Germany, at 72 pages considered a “short study”. Only now the proposal has picked up enough momentum that the Greens are taking it up, being the first political party to commission academic expertise, as Staffelt had pointed out.”