OUR DIGITAL FUTURE: A CROWDSOURCED AGENDA FOR FREE EXPRESSION
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CONTENTS
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ACKNOWLEDGEMENTS |
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“Our Digital Future” was a multi-platform initiativelaunched in July 2012. It was only possible because ofthe involvement and support of countless groups andindividuals around the world. While they are far toonumerous to mention individually, our agenda buildsupon the grassroots and public policy initiatives thathave created such a compelling case for the need forcopyright reforms. We’ve tried our best to give thatbody of work consideration during this process. |
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We are, in particular, indebted to the contributionsof the Our Fair Deal coalition members, whoseexpert input has helped shape our crowdsourcingproject as well as our final report. We owe specialthanks to Article 19’s “Principles on Freedom ofExpression and Copyright in the Digital Age” andthe Authors Alliance’s “Principles and Proposalsfor Copyright Reform,” which helped us craft moreconcrete policy proposals that can translate thewishes of our community into law. |
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We also thank peer reviewers who provided critical,in-depth comments and suggestions, which servedto strengthen the quality and overall presentation ofour agenda. Any shortcomings or oversights are inspite, not because, of their generous contributions,and are entirely the responsibility of the authors. |
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Lastly, the pro-Internet community has alwaysbeen at the heart of this project. This report isprimarily based on the invaluable input of the 40,079people who participated in our drag-and-drop toolto crowdsource a vision for sharing and creativityonline, and the energy of over 300,000 peoplearound the world who have used OpenMedia as aplatform for action on free expression. Their concernfor their rights to share and create in the digitalage is the driving force behind our work – so, to ourcommunity, thank you so much <3 |
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EXECUTIVE SUMMARYAN AGENDA FOR FREE EXPRESSIONTHAT RESPECTS CREATORS, ANDEMBRACES DEMOCRACY |
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At its best, the Internet encourages us to share, use our creativity, and expressourselves freely. It fosters the same key experiences that help us preserve ourimaginations and our capacity to learn as we grow from children into adults. What we’veheard from the hundreds of thousands of Internet users worldwide who have participatedin OpenMedia’s projects is that the Internet has the power to bring people together aroundthese common learning experiences and shared values. This includes both those who wantto share, and those who want to create – the Internet provides us all with new ways toexercise our right to freedom of expression. As Chris, an OpenMedia Internet Voice participantfrom Sweden, states: “On the Internet, free expression, creativity, education, public discourseand debate thrive like never before…The people of the world finally have a voice.”1 |
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Supporters like Chris inspired us to create “OurDigital Future,” an initiative to amplify and unitethe voices of Internet users who are seeking newways to protect and nourish creativity, sharing,and free expression online. Beginning in July2012, when we launched our first online actionagainst anti-Internet provisions in the Trans-PacificPartnership (TPP) agreement, OpenMedia hasbeen rallying people worldwide to fight Internetcensorship. When we asked our community inMarch 2013 how to best continue this work on freeexpression, reddit user HouseGray exemplifiedthe feedback we were receiving: “[A]ttempts tolegalize restrictions on the Internet will continueceaselessly until laws are passed that guaranteefreedoms...lobbying for laws that cement Internetfreedoms and rights [will] be the only solutionthat will work long-term.”2 Guided by this typeof community input, we designed a consultationprocess with multiple stakeholder groups to decidewhat these pro-Internet laws might look like. |
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After a process design phase that saw input fromInternet users, civil society and communityorganizations, and impacted businesses,3 inOctober 2013 we launched our interactive drag-and-drop tool. Our intensive outreach work surroundingthis tool – which took participants through a set of9 questions about copyright law in the digital age– brought together over 40,000 Internet users inless than a year to crowdsource a new vision for freeexpression.4 Overall, our work on free expression hasengaged over 300,0005 eager Internet users all overthe world through multiple platforms. |
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The 40,079 participants in our crowdsourcingtool, who came from an impressive 155 countriesaround the world [Image 1], felt urgency to crafta plan for a fair deal for users and creators. Theyfelt this urgency in light of some of the worryingcopyright and IP provisions being proposed inseveral regions,6 and in international agreementssuch as the Trans-Pacific Partnership (TPP)7 – amultinational trade agreement involving 12countries in the Asia-Pacific Region, which accountfor nearly 40 percent of global GDP and aboutone-third of all world trade.8 Participants in ourcrowdsourcing initiative also joined over 3,000,000supporters of diverse international civil societyorganizations who have expressed grave concernsabout secrecy and censorship in the TPP.9 |
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Image 1: Participantsin our drag-and-dropcrowdsourcing tool, byanonymized IP address |
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1 “Internet Voices” come from the approximately 30,000 people who have used OpenMedia’s “InternetVoice Tool” (found at openmedia.org/facetoface) or OpenMedia’s social media platforms to submitcomments to the TPP negotiators. We quote these OpenMedia supporters throughout the report tobring more attention to the lived experiences of Internet users with copyright and free expression.See the chapter on “The Process” for more information about the “Internet Voice Tool” and thehundreds of thousands of people worldwide who have spoken out for free expression.2 http://www.reddit.com/r/IAmA/comments/1ajboq/we_are_internet_freedom_advocates_and_online/c8xxkil3 See “The Process” for more information on our consultation process.4 See “Appendix: Methodology” for full results for the drag-and-drop crowdsourcing tool.5 Total numbers from all OpenMedia actions on free expression include: http://stopthetrap.net- 112,145 signatures, http://ourfairdeal.org - 19,694 signatures, https://openmedia.org/froman -22,867 signatures, https://openmedia.org/censorship - 141,130 signatures, https://stopthesecrecy.net - 161,026 signatures, https://openmedia.org/expression - 62,670 signatures, https://openmedia.org/letter - 912 supporters, who used our Letter to the Editor tool, https://openmedia.org/facetoface -29,041 participants (with duplicate actions removed, the number of unique supporters is ~316,000)6 Other notable examples of attempts to use copyright policy to censor the Internet include theU.S. Stop Online Piracy Act (SOPA), a bill pushed through by lobbyists who sought to criminalizealleged copyright infringement, force ISPs to block websites suspected of promoting onlinesharing, and even ban companies from conducting business with “blacklisted” websites. (http://www.theglobeandmail.com/technology/tech-news/sopas-most-frightening-flaw-is-the-future-itpredicts/article1358850/?page=all) Iterations of the Anti-Counterfeiting Trade Agreement (ACTA), aninternational intellectual property agreement, also included provisions which seek criminal chargesfor copyright infringement.7 https://openmedia.ca/blog/huffington-post-openmedia-op-ed-tpps-internet-trap8 http://www.ustr.gov/about-us/press-office/press-releases/2013/april/joint-statement-tpp-ministers9 https://stopthesecrecy.net/10 https://openmedia.ca/blog/antarctica-vietnam-global-internet-users-are-creating-vision-our-digital-future |
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InternetVoice*“ On the Internet, free expression,creativity, education, public discourseand debate thrive like never before – Thepeople of the world finally have a voice.”– Chris, Sweden* “Internet Voices” come from the over 30,000 people who haveused OpenMedia’s Internet Voice Tool (found at openmedia.org/facetoface) or OpenMedia’s social media platforms to submitcomments to the TPP negotiators. We quote these OpenMediasupporters throughout the report to bring more attention tothe lived experiences of Internet users with copyright and freeexpression. See the chapter on “The Process” for more informationabout the Internet Voice Tool and the hundreds of thousands ofpeople worldwide who have spoken out for free expression. |
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THREE KEYRECOMMENDATIONS |
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While media conglomerate interventions in copyright and intellectual property law haveenvisioned (and sometimes created) regimes where the needs of these conglomeratestrump the possibilities of the open Internet, our crowdsourcing participants envision aregime where both sharing and creativity flourish. From their input, and the many otherelements of the “Our Digital Future” process, we’ve distilled three key recommendations: |
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1. RESPECTCREATORS Participants in our crowdsourcing processindicated strong support for those in the creativeindustries – a significant majority (67 percent)wanted to see creators receive at least 75 percentof the revenue from their work, and an amazing89.2 percent of respondents noted that we shouldalways give credit to the creator of a work whensharing.11 Given the strong beliefs of our community,our first recommendation focuses on the needto respect creators. We outline ways to respectcreators by ensuring they have access to: newways to share their work; to fair use/fair dealing;to any compensation resulting from copyrightinfringement; and finally, to a rich public domain. Byfirst ensuring creators have access to the tools theyneed to create and share in the digital age, we candesign a copyright regime that serves the needs of21st century knowledge and culture creators. |
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2. PRIORITIZEFREEEXPRESSION When asked to rank a list of six priorities forcopyright laws in the digital age, the majority ofparticipants in our crowdsourcing process (i.e.26,894 out of 40,079) selected “Protecting FreeExpression” as their first priority. As such, in thisreport, to prioritize free expression we proposean agenda for copyright with four components:prevent censorship; protect fair use and fair dealing;promote access and affordability; and create clearrules to govern the sharing of knowledge andculture online. |
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3. EMBRACEDEMOCRATICPROCESSES The results of our crowdsourcing process wereclear: over 72 percent of respondents wanted to seecopyright laws created through “a participatorymulti-stakeholder process...that includes Internetusers, creators, and copyright law experts.” Wetherefore strongly recommend that politicalleaders abandon closed-door processes like theTrans-Pacific Partnership (TPP), and insteadfocus on designing participatory, democratic andtransparent forums for the creation of copyrightlaws that can keep pace with our rapidly changingtechnology and culture. |
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We believe that by fostering the key elementsof free expression in the digital age outlinedabove, we can truly unlock the potential ofthe open Internet to democratize knowledgeand culture. There are undeniable challengesthat come with a rapid shift to a new mediumof expression; but what we’ve found is that,in contrast to stereotypes, Internet usersare very respectful of the unique needs ofcreators and knowledge producers in thedigital world.As digital technology is increasingly adriving force in the way we interact as asociety, copyright rules will play a morefundamental role in our lives. Making rulesthat are fair, easily understood by everydayInternet users, and created with the inputand approval of the many groups andpeople whose lives will be directly affected,is the best way to ensure that the digitalfuture belongs to all of us. |
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11 See “Appendix: Methodology” for full results for the drag-and-drop crowdsourcing tool. |
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OUR POLICY AGENDA |
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The following are the concrete policy proposals of the “Our DigitalFuture” project.12 The full report gives more plain-languageexplanations of how these policies would work, and the impactthey (or their absence) could have on everyday Internet use. Wealso encourage readers to consult the glossary at the back of thisreport for further demystification of terms used here. |
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1. No forced disconnections from the Internet for copyright violations; no three-strikesrules that could harm culture and knowledge creators, and everyday Internet users.2. Protection for safe harbours, like those in Section 230 of the US CommunicationsDecency Act, that allow creators to access new audiences / no intermediary liabilityfor infringing content disseminated by third parties.3. Notice-and-notice systems for preventing infringement, like that created byCanada’s Bill C-11, as opposed to notice-and-takedown systems.4. Promotion and protection of Creative Commons – in takedown systems, no takedownswithout adequate consideration of users’ rights and due process, and penalties for falseinfringement claims.5. Clear process for creators to dedicate their works to the public domain.6. Broad protections for fair use/fair dealing – in takedown systems, copyright holders requiredto take fair use/fair dealing provisions into consideration when issuing takedown notices.7. Fair use/fair dealing exceptions for transformative commercial remixes; copyrightexemptions for amateur and non-commercial remixes.8. Reasonable, civil (not criminal) penalties for sharing copyrighted materials – civilliability geared towards compensation for culture and knowledge creators (i.e. warningsand fines, tied to reasonable copyright terms as in point 9).9. Copyright terms focused on compensating creators during their lifetime, and enriching thepublic domain at their death.10. No criminal penalties for DRM circumvention; no penalties for DRM circumventionto allow legal uses of content (i.e. circumvention of regional zone access protection);ensure vision-impaired Internet users are not prohibited from creating or formatshifting their content.11. Clear, simple copyright rules, designed to be accessible to the people theyare intended to serve.12. Copyright rules created through an open, transparent & democratic process. |
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12 See “Appendix: Methodology” for full results for the drag-and-drop crowdsourcing tool. |
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For more images of our ReMix This: A Copyright Cabaret event, head to pages 56–57. |
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THREEKEYRECOMMENDATIONS |
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RESPECTCREATORSPRIORITIZE FREEEXPRESSIONEMBRACEDEMOCRATICPROCESSES |
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Recommendation One:RESPECTCREATORS |
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We believe in respect for artists. Having a fair andflexible copyright system means that artists canmake a living off their work, while users have the freedomto share, collaborate and create online. Copyright rulesshould therefore support platforms, business models, andalternative licensing systems – like Creative Commons –that give content creators greater control over distribution,while also encouraging citizens’ rights to share with others.Copyright law should balance fair compensation withensuring that artists have access to the content theyneed to remix and build new works. |
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"Evidence shows that as usersshare and connect moredirectly with creators, thepossibility for grassrootsfinancing and distributionof cultural and knowledgeproduction grows.” |
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In order to fully unleash the possibilities of the open Internet,there are two things digital policy must foster: the potentialfor Internet users to share and remix knowledge and culturequickly and easily on a global scale; and the potential forcreators to access livelihoods not controlled by gatekeepers,the Big Media companies that have traditionally monopolizedfinancing and distribution. These gatekeepers have the abilityto create “winner-take-all” economies dominated by a few bigcelebrities in the creative and knowledge production fields. |
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By contrast, the Internet allows for a much greater range ofamateur and emerging artists to reach large audiences. Whilewe are often led to believe that in the digital age, sharing andcreativity are diametrically opposed, the right approach tocopyright understands that these two things can be mutuallyreinforcing. Unfortunately, Big Media gatekeepers and theirlobbying organizations, like the Motion Picture Association ofAmerica (MPAA) and the Recording Industry Association ofAmerica (RIAA),1 have had a disproportionate influence overcopyright policy in recent years, and have pushed forward theidea that Internet users pose an existential threat to creatorsand creative industries. But, as we explore here, evidence showsthat as users share and connect more directly with creators, thepossibility for grassroots financing and distribution of culturaland knowledge production grows. Similarly, as creative andintellectual works enter the public domain and can be freelyshared, the field for cultural and knowledge production thatbuilds on past experience and tradition gets infinitely richer. |
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At its best, the Internet helps us return to the experiencesand values we were likely encouraged to have as children:sharing and creativity. Our first recommendation is that wecontinue to nurture these values and experiences by respectingcreators, and fostering a sharing-first culture that creates anatmosphere that is conducive to creativity. We can do thisthrough a copyright agenda with four components: ensuringcreators have access to new platforms; promoting approachesto copyright that allow creators broad scope for sharing and fairdealing / fair use; ensuring reasonable penalties for copyrightinfringement that prioritize compensation for creators; andfinally, creating a rich public domain. |
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1 http://uits.arizona.edu/faq/copyright/who-are-mpaa-and-riaa-are-they-spying-me |
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CREATIVEINDUSTRIES,TECHNOLOGICALINNOVATION,AND THE SHIFTTO ONLINEDISTRIBUTION |
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Past experience with technological innovationdemonstrates the need to take industry claims aboutthe harms caused by innovation with a grain of salt – one ofthe best examples comes from the 1980s, when there wasa coordinated effort by the film industry to have the VCRprohibited. Then-head of the MPAA, Jack Valenti, told a Houseof Representatives Subcommittee: “I say to you that the VCRis to the American film producer and the American public asthe Boston strangler is to the woman home alone.”2 As Forbesmagazine points out, “Of course, home video (and later DVD)went on to become a hugely profitable delivery channel formovie studios. Far from decimating the industry, it grewprofits, especially for studios like Disney with valuable backcatalogs. It just goes to show, disruptive technologies canhave different effects than you expect.”3 |
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Now that more than a decade has passed since the shift toonline music, studies have emerged challenging industryclaims about the threat of this shift: piracy does not “kill”the industry and the negative impacts reported are eitherunfounded or exaggerated. A ground-breaking study bythe London School of Economics (LSE) discovered threeimportant counter-points to the music industry’s reactionsto the online shift: 1) that though lobbying organizationsclaimed otherwise, the music industry was doing reasonablywell, and that much of their data was misleading; 2) thatdeclining sales of recorded music should be explained not justby file-sharing but also by decreasing disposable householdincomes for leisure products and other shifts in patterns of music consumption; and 3) that increasing revenue from liveperformances and growing digital revenue, including fromstreaming services, were offsetting the declining sales ofrecorded music (Figure 1).4 |
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SOURCE: “Copyright & Creation: A Case for Promoting Inclusive Online Sharing,” by Bart Cammaerts et. al., lse.ac.uk |
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Not only do streaming services bring in increased incomefor the industry (suggesting that if the music industry hadadapted to the digital environment earlier, rather than investing in lobbying to protect a dying business model,record companies could have enjoyed much earlier growth inthe sector)5 these services also seem to help curb piracy quitedramatically.6 And the real effects of piracy are open to a verylively debate: a 2013 report by the European Commission showedthat piracy did not displace legal music purchases in digitalformat, and that the majority of music consumed illegally wouldnot have been consumed if it was not freely available.7 |
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SOURCE: “Copyright & Creation: A Case for Promoting Inclusive Online Sharing,” by Bart Cammaerts et. al., lse.ac.uk |
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We also know that most creative industries are doing quitewell: despite the MPAA’s claims about the devastation of onlinepiracy, Hollywood achieved record-breaking global box officerevenues of US$35 billion in 2012, a 6 percent increase over2011. Though revenue from DVDs declined in the decade from2001 to 2010, total global revenue increased by 5 percent.8 |
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Similarly, in the publishing industry, though revenues fromprint book sales have declined, increased sales of eBooks haveoffset this, and despite the alarm about the “end of the book,”the rate of industry growth is not declining.9 |
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The music industry, which has been hardest hit in termsof decline in traditional revenues (Figure 1) demonstratesnot only growth in revenues from live performance, butalso strong growth in digital revenues (Figure 2). Thesenow account for more than a third of global music industryrevenues and helped the music industry increase revenue year over year between 2011 and 2012, the first time since1999 that industry revenue has grown.10 This growth hasbeen predicated on innovations that deliver content to usersin a format that is easy and desirable to them, somethingthe older Big Media companies have neglected while insteadfocusing on efforts to suppress technological advances andprotect their out-dated business models.11 |
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2 http://uits.arizona.edu/faq/copyright/who-are-mpaa-and-riaa-are-they-spying-me3 http://www.forbes.com/sites/joshbarro/2012/01/18/thirty-years-before-sopa-mpaa-feared-the-vcr/4 http://www.lse.ac.uk/media@lse/documents/MPP/LSE-MPP-Policy-Brief-9-Copyright-and-Creation.pdf p.55 http://www.lse.ac.uk/media@lse/documents/MPP/LSE-MPP-Policy-Brief-9-Copyright-and-Creation.pdf p.56 http://www.telegraph.co.uk/technology/news/10187400/Spotify-and-Netflix-curb-music-and-film-piracy.html7 http://ftp.jrc.es/EURdoc/JRC79605.pdf p.28 http://www.lse.ac.uk/media@lse/documents/MPP/LSE-MPP-Policy-Brief-9-Copyright-and-Creation.pdf9 http://www.lse.ac.uk/media@lse/documents/MPP/LSE-MPP-Policy-Brief-9-Copyright-and-Creation.pdf10 http://www.theverge.com/2013/2/26/4031912/music-industry-grew-revenue-for-first-time-since-199911 http://eprints.lse.ac.uk/33905/1/LSEMPPBrief1.pdf |
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