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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Respect for Creators 1: ENSURE CREATORSCAN ACCESS NEWWAYS TO SHARETHEIR WORK |
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The growth forecast for digital music revenues is all the morereason to ensure we get the business model for online musicservices right – that is, we ensure that it harnesses the possibilitiesof the open Internet for easier sharing and more creativity.Though labels are fighting a rearguard action that focuses on an“Internet users versus artists” frame, what we’ve found in the “OurDigital Future” process is that Internet users are very invested inrespecting creators. In fact, Internet users who participated in ourcrowdsourcing process would very much like to see creatorsget a greater share of the revenue generated by their work: |
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Overall, 92.5 percent of respondents to a question about howmuch digital music revenue should go to the artist, believe thatat least 50 percent of the revenue should go directly to the artist;67 percent wanted to see more than three-quarters of therevenue go directly to the artist. The “Our Digital Future” processprovides evidence that Internet users believe in a businessand revenue model where artists and content creators are fairlycompensated. |
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SOURCE: “The New Economics of the Music Industry,” by Steve Knopper, October 25th, 2011, rollingstone.com
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We also see new possibilities for creators to benefit in thedigital environment, and insist that copyright law shouldprotect those possibilities. According to research done byRolling Stone magazine, distribution through CDs or the iTunesstore should both result in about the same royalties to theartist – a typical record contract gives the artist approximately16 percent of sales.12 However, in the offline market, labelshave been cutting into artist’s royalties for years, “withdeductions marked ‘free goods’ (usually 10 percent of theartist’s royalty) and ‘packaging’ (usually 25 percent)” droppingthe royalty down to about 11 percent.13 These deductions don’tapply to digital sales – so there is reason to believe that in theiTunes store an artist inches closer to the revenue-split ratioour crowdsourcing participants would like to see. Though inthis scenario, the label still takes the majority of the revenue:out of the $1.29 paid for a song, “a grand total of 60 centsgoes to Sony to pay for marketing, publicity, videos, executivesalaries and obviously, profit.”14 And this is all assumingthat the artist has paid off their debt to the record label forexpenses like videos, tour support, etc. |
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By contrast, though there are very legitimate concerns aboutthe small amount of royalties per play15 on a streamingservice like Spotify, the amount of royalties paid to the artistrelative to the label looks closer to what our crowdsourcingparticipants wanted (Figure 4). And as the plays accumulateso does the revenue to the artist. Spotify also aims to grow theamount it gives to both niche and breakthrough indie bands,creating new sources of revenue for artists that may have had a hard time competing in the pre-digital era (Figure 5). |
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SOURCE: “How is Spotify contributing to the music business?” spotify.com |
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As Rolling Stone points out, the artists that do the best interms of the percentage of revenue that they can keep, arethose who choose to go without a label: “Of course, many artists don’t want to share nearly half of theirrevenues with a major label like Sony, which is essentiallya middleman. Before the Internet, and stuff like ProTools,an artist had to sign with a label even to be heard. That’sobviously no longer true. Today, an artist can pay a service likeTuneCore to be included in the iTunes Store. At that point, afterApple takes its cut, the entire 90 cents goes to the artist.”16 Distribution channels like iTunes, or the even more openplatform (in that users can upload their videos directly)YouTube, are creating new possibilities for artists to eschewlabels and keep more of their revenues for themselves. RollingStone cites the case of “video kings” OK Go, who chose to splitwith their longtime label EMI. The band’s blog announcingthe departure reads: “OK Go has struck out on its own. Theband has left the EMI family of corporations to form theirown enterprise, a homemade upstart called Paracadute [...] |
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12 http://www.rollingstone.com/music/news/the-new-economics-of-the-music-industry-20111025#ixzz393yh31iV p.213 ibid., p.514 ibid., p.215 http://www.businessinsider.com/what-spotify-pays-artists-for-songs-in-royalties-2013-1216 http://www.rollingstone.com/music/news/the-new-economics-of-the-music-industry-20111025?page=2 |
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Paracadute is really just a way for the boys to continue doingwhat they’ve always done. Which is whatever they want.Being OK Go just got a little bit easier.”17 This also leaves theband much better positioned to bring in significant revenuefrom their YouTube videos. Rolling Stone quotes Eric Garland,the CEO of an online metrics company, who claims: “I knowindividual artists who make tens of thousands of dollars amonth on YouTube [...] And I know of individual artists whomake more money on an individual basis from YouTube thanthey do from iTunes.”18 |
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Online platforms not only allow artists to cut out the labelmiddlemen – they have also allowed for experiments inletting fans set their own price for content. Lead singer ThomYorke of the UK band Radiohead found that making theiralbum “In Rainbows” available for whatever fans believedto be appropriate actually increased sales: “In terms ofdigital income, we’ve made more money out of this recordthan out of all the other Radiohead albums put together,forever — in terms of anything on the Net. And that’s nuts.”19Other big name entertainers to start using technology totheir advantage include comedian Louis C.K., who made hiscomedy special available for stream and download for just US$5, in an experiment he considered a huge success: |
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“As of Today, we’ve sold over 110,000 copies for atotal of over $500,000. Minus some money for PayPalcharges etc, I have a profit around $200,000 (aftertaxes $75.58). This is less than I would have been paidby a large company to simply perform the show andlet them sell it to you, but they would have chargedyou about $20 for the video. They would have givenyou an encrypted and regionally restricted videoof limited value, and they would have owned yourprivate information for their own use. They would havewithheld international availability indefinitely. Thisway, you only paid $5, you can use the video any wayyou want, and you can watch it in Dublin, whateverthe city is in Belgium, or Dubai. I got paid nice, and Istill own the video (as do you). You never have to joinanything, and you never have to hear from us again.”20 |
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In both these cases, there was still significant file-sharing andunpaid downloading of these works – but the artists consideredthem a success regardless.21 Online crowdfunding platformslike Kickstarter have also allowed artists like Amanda Palmer– an advocate of alternative, more negotiated and consensualcompensation arrangements between artists and fans22 – tovastly exceed targets for funding projects like records, books,and tours.23 And as business models in the music industry change, particularly as live performance revenue increases(see Figure 1 in this chapter), many artists may find that thebenefits of increased exposure from free sharing of their workoutweigh the costs of foregone revenue from digital sales -as did Counting Crows, who released their album for free viaBitTorrent, commenting: “It’s not just about getting music to thepeople who would buy it anyway – even though that is, of course,very good – the hardest thing to do is make new fans.”24 |
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This is not to claim that the current digital era is perfect– direct distribution to fans and crowdfunding are mucheasier for celebrity artists with name recognition value, whileemerging artists still struggle. As Nicolas Suzor and DanHunter point out, “Since the 1990s the copyright systemhas been made more and more onerous – but most artistshaven’t been getting any richer.”25 In Australia, for example,the majority of people who identify as professional artistsmake less than A$10,000 per year from their primary creativeactivity.26 Alternative proposals like a Creative Contribution,27or a basic income,28 are worthy of serious consideration toovercome the challenge of financial security for artists – achallenge that long precedes the digital age. |
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The important thing to keep in mind when considering theonline era is that we don’t know what the business models ofthe future will look like: as Amanda Palmer says “The truth isthere is no next model. Show me 1,000 talented musicians,each with a unique style and personality, and I’ll show you1,000 ways to make a career in music… there is no longer anoff-the-shelf solution.”29 The uncertainty surrounding futurebusiness models, and the possibilities of the open Internet tobring the creative industries closer to what our crowdsourcingparticipants wanted (i.e. a majority of revenue going to artists)lead us to draw two conclusions with regards to copyrightand free expression: that real protection for safe harbours isneeded, and that “three-strikes” style copyright policy will beharmful to creators. |
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“Safe harbours” are online service providers, such as YouTube,which under the US Communications Decency Act’s (CDA)Section 23030 are exempt from liability for copyrightinfringements by third parties who use their services. They areoften used by emerging artists that don’t yet have access todistribution channels like television and radio – safe harboursprovide the artist with a way of reaching audiences that wouldhave been impossible in the pre-digital era. Protections for safeharbours like those outlined in CDA Section 230 are thereforecrucial. Current copyright regimes, however, compromisethese safe harbours by permitting dragnet-style takedownsof content, which often sweep up legitimate uses and reuses of content by artists, and disable their access to crucialaudiences, as we will explore further in the next section. |
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The crucial nature of Internet access to artists in a digitalera also highlights the folly of three-strikes rules, whererepeat copyright infringers would have their Internet accessdisabled. Given the possibility for unknowing infringement,for false infringement claims, and the reality of copyrightprotections that seem overly broad and detrimental to thesharing of knowledge and culture, we strongly recommendagainst three-strikes rules. Less than 2 percent of ourcrowdsourcing participants agreed that users should bedisconnected from the Internet for copyright infringement.31 |
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Given the results of the “Our Digital Future” project, wesupport London-based human rights organization Article 19’sPrinciple 8 on free expression and copyright in a digital age:“Disconnection from access to the Internet on grounds ofcopyright is always a disproportionate restriction on the rightto freedom of expression.”32 In countries like France wherethree-strikes policy has been tried, it has ultimately been seenas overly expensive, bureaucratic, and ineffective, and hasbeen abandoned in favour of relatively small fines instead.33Unfortunately, however, leaked drafts of the TPP suggest thatthe chapter on intellectual property would seek to imposethree-strikes rules on the 12 countries currently negotiatingthe agreement.34 Because three-strikes rules are just aslikely to target creators as they are to target regular Internetusers, and remove them from what is increasingly a crucialmeans of making a living as an emerging artist, these rulesshould be rejected in favour of civil liability that focuses oncompensating creators (see the section “Respect for Creators3” in this chapter for further discussion of this issue). |
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InternetVoice“ I want to be able to dictate the terms of my ownwork; not hand everything over to a publisher[...] I don’t want [fans] to have to worry abouttheir [fan fiction] sites or stories being takendown simply because publishers get hurt overmoney they’re not making on something thatwas my intellectual work to begin with. Theselaws were originally put in place to protect therights of the artist, yet in these days, it’s onlythe producers/publishers/etc. that benefit.”– LaTora Prince |
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17 http://okgo.net/2010/03/10/onwards-and-upwards/18 http://www.rollingstone.com/music/news/the-new-economics-of-the-music-industry-20111025?page=319 http://archive.wired.com/entertainment/music/magazine/16-01/ff_yorke?currentPage=all20 https://buy.louisck.net/news/a-statement-from-louis-c-k21 http://www.nme.com/blogs/nme-blogs/did-radioheads-in-rainbows-honesty-box-actually-damagethe-music-industry22 http://www.ted.com/talks/amanda_palmer_the_art_of_asking23 https://www.kickstarter.com/projects/amandapalmer/amanda-palmer-the-new-record-art-book-and-tour24 http://mashable.com/2012/05/14/counting-crows/.25 http://theconversation.com/why-australians-should-back-turnbull-in-the-stoush-over-copyright-3019826 http://theconversation.com/why-australians-should-back-turnbull-in-the-stoush-over-copyright-3019827 http://www.oapen.org/search?identifier=409602;keyword=Aigrain p. 7628 http://www.basicincomeireland.com/if-you-do-artistic-or-creative-work.html29 http://www.nme.com/blogs/nme-blogs/did-radioheads-in-rainbows-honesty-box-actually-damagethe-music-industry30 https://www.eff.org/issues/cda23031 See “Respect for Creators 3: Ensure Reasonable Penalties for Copyright Infringement – Those thatPrioritize Compensation for Creators” in this chapter for further results from this question.32 http://www.article19.org/data/files/medialibrary/3716/13-04-23-right-to-share-EN.pdfhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2380522 (layperson’s summary: http://arstechnica.com/tech-policy/2014/01/study-of-french-three-strikes-piracy-law-finds-no-deterrent-effect/)34 http://tppinfo.org/resources/whats-in-the-tpp/ |
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Respect for Creators 2: PROMOTE APPROACHES TOCOPYRIGHT THAT ALLOW CREATORSBROAD SCOPE FOR SHARING ANDFAIR USE/FAIR DEALING |
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Box 1: Creative Commons Licenses Creative Commons (CC) is a non-profit organization that creates its own licenses to provide a more balancedapproach to copyright. By creating flexible licenses, CC gives content creators and users more freedom whenit comes to sharing and remixing works. The licenses serve as a positive alternative to current copyrightrules, which focus on punishing acts of sharing, as opposed to supporting online collaboration. By usingCC licenses,35 you, as a creator of content, can make it clear that you would like to be acknowledged, andcommunicate ways you would like the public to reuse your work – you can choose to permit derivatives andcommercial uses, and can insist that any reuses of your work are also themselves CC licensed. Not only dothese licenses let Internet users know what rights the creator has given them, they also encourage innovativeknowledge reproduction and distribution, making our online culture richer and more interactive. |
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As noted above, changing business models mean thatsharing work freely is often desirable for knowledge andculture creators - hence the rapid growth in the use of CreativeCommons licenses, from 50 million in 2006 to over 450million in 2011.36 While Creative Commons licenses allow fora great degree of customization and flexibility (see Box 1), thefundamental component of all the licenses is attribution, orgiving credit for the original creation. |
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This was also a principle of sharing online that theparticipants in “Our Digital Future” strongly supported – 89.2 percent of 9,020 respondents to the question in our drag-anddroptool said that when using the content of others online,we should always give credit to the creator of the work.37 Asthe Authors Alliance, which represents the interests of authorswho favour accessibility and dissemination, notes, attributionserves not only the author’s or creator’s interest, “but alsothe reading public’s interest in knowing whose works theyare consuming and society’s interest in an accurate recordof the intellectual heritage of humankind.”38 Yet again, wesee evidence that Internet users want this kind of healthyculture of sharing – the majority of users in our crowdsourcingprocess want to ensure that creators receive credit. |
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One challenge with regards to Creative Commons and currentcopyright law is that notice-and-takedown regimes oftenrely on automation: many copyright holders use catch-allstyle systems, such as YouTube’s ContentID (see Box 2) or theMPAA’s list of infringing terms, that result in creators who useCreative Commons having their works summarily removedfrom the Internet, and from their largest potential audience.For example, popular (and now defunct) torrent site isoHuntwas forced to use a site-wide keyword filter provided by theMPAA, which included word combinations like “The Kingdom”and “The Heat.”39 Along with copyrighted works, this filter blocked content from independent artists like musician ElliotWallace and film-maker Brian Taylor, whose CC licensed workstriggered the overly broad & generic keyword filters. To quoteTaylor: “My original material being blocked in the US hurtsmy chances of: being discovered, making money, makingmore art.”40 Companies like Microsoft use similar automatedsystems to send takedown notices to Google, removing linksto their open source competitor OpenOffice,41 blocking accessto one of the only real alternatives to their expensive software. |
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The scope of these types of claims is mind-boggling:Google receives requests to remove tens of millions of URLseach month.42 Even well-known Internet freedom and freeexpression advocates Corey Doctorow and Lawrence Lessighave been the targets of this kind of system. In Doctorow’scase, his novel “Homeland” was ordered taken down fromGoogle by Fox, the copyright holder of a television show alsocalled “Homeland.” Doctorow noted: “The DMCA makes it easyto carelessly censor the Internet, and makes it hard to getredress for this kind of perjurious, depraved indifference”.43 |
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Box 2: YouTube’s ContentIDSystem YouTube has been forced to put in place a ContentIDsystem – a technology that scans videos forcopyrighted content using reference files (movies,songs, etc) and then allows rightholders to issuenotices to either takedown, claim or block theallegedly offending content. As a result, users canhave their videos removed even for having a songplaying softly in the background that was pickedup by the ContentID software. ContentID alsomakes no exceptions for fair use or fair dealing. AsAshkan Karbasfrooshan, owner of a popular YouTubechannel called WatchModo that was targeted by anillegitimate takedown notice writes: “Having just beengiven access to ContentID to protect our own videosfrom copyright infringement, it was instantly clearonce I logged in why there are so many false alarms.I personally feel that ContentID adds an impersonalelement of anonymity that has led to a lack ofcommon sense and civility. A robot can brand us asa rogue operation with no due process.”44 The systemappears to be the result of Youtube obeying theproblematic notice-and-takedown law, but like othercopyright rules, it has the effect of censoring legalexpression and content. |
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The proliferation of dubious copyright claims is not justcatching Creative Commons licensed works in a dragnet,it is also sweeping up other legitimate instances of sharedcopyrighted works, such as those protected under fair dealingor fair use. In Lessig’s case, one of his lectures was removedfrom YouTube after a takedown notice from Liberation Music,regarding clips of the song “Lisztomania” of which Liberationis the copyright holder. As the Electronic Frontier Foundation(EFF), which represented Lessig in the lawsuit he filed againstLiberation, explains, this was a “classic example of fair use,[as] the clips were used to highlight emerging styles ofcultural communication on the Internet.”45 Liberation Musicsettled with Lessig for an undisclosed amount, and alsorevealed their takedown system: they had allowed a singleemployee to use YouTube’s automatic ContentID system tostart the takedown process, and then to threaten a lawsuitwhen Lessig challenged the takedown. The employee did nothave a legal background, and did not actually review Lessig’svideo before threatening a lawsuit.46 Liberation agreed tochange this policy to include human review and fair useconsiderations, but clearly it is not reasonable to expectInternet users to take every single rights holder to court to forcethem to adopt what may be only a moderately better system. |
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This is yet another strong piece of evidence that notice-andnoticestyle copyright regimes are much more respectful ofcreators. In a powerful article titled “Why I No Longer GiveAway My Music for Free,” digital musician Bob Ostertag notes:“It is strongly in the interest of the big corporate labels toover-detect rather than under-detect. The result is a systemin which the interest of the handful of superstars of the worldin not missing out on a penny of their millions in royaltiestrumps the interest of the vast majority of musicians ingetting their music heard.”47 |
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35 https://creativecommons.org/licenses/36 http://www.lse.ac.uk/media@lse/documents/MPP/LSE-MPP-Policy-Brief-9-Copyright-and-Creation.pdf, p. 937 See “Appendix: Methodology” for full results from this question.38 http://www.authorsalliance.org/principles-and-proposals-for-copyright-reform/principle-1/39 https://torrentfreak.com/mpaas-court-ordered-piracy-filter-censors-many-legitimate-files-130915/40 https://torrentfreak.com/mpaa-filter-censors-legit-torrent-files-on-isohunt-120406/41 https://www.techdirt.com/articles/20130814/17501024181/microsoft-uses-dmca-to-block-manylinks-to-competing-open-office.shtml42 http://www.google.com/transparencyreport/removals/copyright/?hl=en43 http://boingboing.net/2013/04/22/fox-sends-fraudulent-takedown.html44 http://www.tubefilter.com/2013/12/23/youtube-contentid-reflects-reality/45 https://www.eff.org/cases/lawrence-lessig-v-liberation-music46 https://www.eff.org/press/releases/lawrence-lessig-settles-fair-use-lawsuit-over-phoenix-music-snippets47 http://onthecommons.org/magazine/why-i-no-longer-give-away-my-music#sthash.BwFNp14l.dpuf48 http://onthecommons.org/magazine/why-i-no-longer-give-away-my-music |
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Ostertag, who makes his income off of concerts and was licensinghis recorded work under Creative Commons in order to reach newaudiences, cites numerous instances of “netbots,” or automatedtakedown systems, unjustly removing the content of musicianswho are “trying unsuccessfully to give away their music for free.”48As he observes, these musicians have few resources, in termsof time or money, to fight unjustified takedown notices. Theproblem with putting in place an automated takedown procedureis, first, that these systems do not differentiate between truecopyright infringement versus fair dealing, fair use or CreativeCommons-licensed works that incidentally resemble copyrightedworks. Second, these systems place an unfair burden onemerging artists to fight takedown notices and, as Ostertagnotes, are a disincentive to using the Creative Commons. |
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As Article 19 states in its principles on copyright and freeexpression: “Measures such as Creative Commons, wherebycreators waive some of their rights in their works, allow greateraccess to culture for the wider public and should therefore bepromoted.”49 Given the value of Creative Commons, and theharm that automated takedown procedures are doing to thecreators who employ it (and/or fair use/fair dealing) the “OurDigital Future” project strongly favours notice-and-notice overnotice-and-takedown. In light of the effectiveness of noticeand-notice systems50 (see Recommendation Two for a fullerdiscussion), the evidence clearly shows that they are superiorto notice-and-takedown – particularly when takedownprocedures rely on the impersonal, anonymous automatedsystems described here. |
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Respect for Creators 3: ENSUREREASONABLEPENALTIES FORCOPYRIGHTINFRINGEMENT– THOSE THATPRIORITIZECOMPENSATIONFOR CREATORS |
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When asked about penalties for copyright infringement,a majority of respondents to the question in the “OurDigital Future” tool (i.e. 71.2 percent of 10,245) selectedeither payment of a small fine (50 percent) or a warningand instruction about the laws surrounding copyright (21.2percent). Less than 8 percent selected harsher penalties,like disconnection from the Internet (1.6 percent) or a fineranging from $250 to $15,000 (5.5 percent). These resultssuggest that Internet users favour copyright regulations thatemphasize education and compensatory damages – mostInternet users we engaged are in favour of consequencesfor copyright infringement (including warnings or noticesthat, as we will demonstrate in Recommendation Two of this report, are effective at preventing repeat infringement).But, unsurprisingly, they would like to forego unnecessarilypunitive systems in favour of reasonable penalties. |
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49 http://www.article19.org/data/files/medialibrary/3716/13-04-23-right-to-share-EN.pdf50 http://www.michaelgeist.ca/2011/03/effectiveness-of-notice-and-notice/ |
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Though we’ve focused in this chapter mainly on the needsof creators in the cultural industries - i.e. musicians, filmmakers,etc. – the detrimental effects of copyright policy onknowledge creation are also strong cause for sober secondthought before pushing ahead with excessively punitivecopyright regimes, like that envisioned in the TPP. In 2013,in response to the suicide of Internet freedom advocateAaron Swartz,51 hundreds of academic authors published over1,500 links to their own copyright-protected material, in anawareness-raising act of civil disobedience.52 The fact thatthese authors were opening themselves up to penalties forcopyright infringement highlighted the ways in which thecurrent copyright system for digitized materials does notserve knowledge creators, who often do not retain a license orrights to share their own works.53 In fact, these creators mustthen pay archives simply to access the material that theyproduced.54 The disjunct between the creator and the rightsholder,who are often not the same person or entity, providesyet further justification for eschewing highly punitive systems– these could punish creators, like academic authors, forsharing their own work. |
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As the Authors Alliance argues, these types of authors, andothers who write not just for pay but also to make theirwork available to the broadest possible audiences, havenot been well served by misguided efforts to strengthencopyright. These efforts have not resulted in meaningfulfinancial returns to most authors, and have “unacceptablycompromis[ed] the preservation of our own intellectual legaciesand our ability to tap our collective cultural heritage.”55 Wetherefore join with our crowdsourcing participants in insistingthat there be reasonable penalties for sharing copyrightedmaterials – this means civil, not criminal, liability, andcivil liability geared towards compensation for culture andknowledge creators, not Big Media companies. |
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We can see clearly in the case of academic publishing thatcopyright regimes are not designed with penalties thatcompensate creators in mind. In fact, as with three-strikes rulesand automated takedown systems, creators can become thetargets of copyright infringement penalties that unnecessarilyimpede the sharing of knowledge and culture. As Philippe Aigrainpoints out, “the effect of the recent evolution of copyright law, inthe real world, is to concentrate power not in the hands of authorsand artists, but in those of the stock owners of copyright.”56 |
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Insisting that penalties should prioritize revenue for creatorsalso has clear implications for copyright terms, as copyrightsthat extend beyond the life of the creator clearly have noimpact on the compensation the creator receives. Therefore, aswe will argue in the next section, these should be abolished infavour of a richer public domain of cultural works for creatorsto reference and remix. As participants in the “Our DigitalFuture” project suggested, a copyright regime that respectscreators will be one that prioritizes reasonable penalties forinfringement combined with maximal freedom to share, and toparticipate in creating an increasingly global digital culture. |
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InternetVoice“ Free expression is the glory of the Internet andthe right of the people. As an author, I havea website with extracts of my books markedcopyright. That’s enough. We display ourwork for people to see. If someone chooses todisregard this, they are outnumbered by themany who honour the system. No decisions ofthis magnitude should be negotiated secretly,nor should access be denied to the Internet. Itis unreasonable to expect service providers tocensor content and remove websites. Pleaselisten to the people.”– June Birch, United Kingdom |
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49 http://www.article19.org/data/files/medialibrary/3716/13-04-23-right-to-share-EN.pdf50 http://www.michaelgeist.ca/2011/03/effectiveness-of-notice-and-notice/51 http://www.forbes.com/sites/walterpavlo/2013/01/14/aaron-swartz-hacker-case-ends-with-suicide/52 http://www.huffingtonpost.com/2013/01/13/academics-tweet-tribute-aaron-swartz_n_2468272.html53 http://www.authorsalliance.org/principles-and-proposals-for-copyright-reform/54 http://techcrunch.com/2013/01/13/pdf-tribute/55 http://www.authorsalliance.org/principles-and-proposals-for-copyright-reform/56 http://www.oapen.org/search?identifier=409602;keyword=Aigrain p. 74 |
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