kNOw Future Inc.

law, technology and cinema, washed down with wine

Resuscitating Alternatives to Copyright

Beginning in 2001, I researched both past experience and contemporary experiments of cultural production which did not rely on copyright for sustainability. In mid-2002 this work continued in collaboration with others such as Jamie King, Jamie Love and Ted Byfield and became the Blur/Banff proposal. in the meantime I was also looking at non-propeitary production with my fellow researchers at NYU (Greg Pomerantz, Gaia Bernstein and Steve Snyder) whilst we worked on a project together with Yochai Benkler. For reasons explained below I think the time is right to resume the discussion (none of those just listed are responsible for the whistling in church to follow!).

Which way forward: Compulsory License or Criminal Mass?
For the previous three years the record industry had been engaged in a sustained attempt to litigate P2P out of existence by targeting the various corporate bodies whose products occupied a significant place in the file-trading universe. Through the Digital Millenium Copyright Act of 1998 (and its various international analogs) the media industries had acquired state-endorsement for their intention to exercise capillary control over entertainment software through use of technological controls, and to make ISPs answerable for their subscribers’ actions and consequently . Creation of a series of new criminal offences offered industry the opportunity to transfer some of the costs of enforcement to the public and intervene normatively within the police apparatus.

In our own discussions two distinct schools of though emerged. The first held that whilst p2p users could duck and dive, things would progressively be made more difficult for them. The objective posed was how to create a system which could satisfy industry whilst retaining the benefits that users had come to take for granted and enjoy. At that time the record industry was still holding out in its licensing negotiations with businesses focussed on providing legal download services. (1)

An alternative analysis insisted that all industry’s legal efforts would be in vain. Developments in the software realm fueled this belief, as we had already seen the beginnings of the migration from proprietary software (Napster, Kazaa) to free GPLed alternatives (GnuCleus, eMule, Bit Torrent), and this development ensured that attempts to halt the phenomena through well-aimed legal attack would fail due to the decentralization implicit in distributed access to the code. As a consequence, a more scatter-shot legal strategy would inevitably be initiated which would have as its object the end-user, with the objective of ‘re-educating’ them back to the norms prevailing during the analog period. Laws passed and amended in 1997-98 (No Electronic Theft Actc, Digital Millenium Copyright Act) meant that the necessary legal tools had been prepared. Nonetheless the sheer numbers of end-users involved was so overwhelming that this too was destined to fail. Thus, this view held, the correct course of action would be to bolster ‘pirate pride’, forget any thought of a compromise settlement with incumbent industry kingpins, and concentrate on winning over producers to adopting the practice of free circulation of cultural goods.

Notwithstanding the contrasting opinions outlined above, we agreed on one imperative: cultural producers need to be paid. Our efforts thus focussed on designing a system which would achieve that. In addition we agreed that a key problem with the present structure was the concentration of cultural revenues in the hands of a tiny number of stars: the Britney effect. Thus the purpose of the project was not to jettison this structure and instead facilitate far more people to earn a living in cultural production by dispensing with the rewards allocated to superstars under the industrial production model.

Four years later it appears worthwhile to turn to these discussions. Firstly the subject of cultural workers compensation continues to be sidelined in these discussions, and more pertinently, the income distribution patterns of cultural revenue have remained substantially unchanged, notwithstanding all the talk of ‘long tails’. Instead of challenging the current structure of industrial culture production, freelancers have continued to be hypnotised by the latest wave of gadgetry and an alternative license culture which does not appear to know where it’s going. Every day, creative commons seems like a process designed to prop up an ailing copyright culture rather than a tool to give birth to anything new. Millions of people who once dispatched their HTML into the abyss, fully congnizant that they would not be able to control its downstream use, are applying licenses to their works. Worse still, 75% of these licenses impose non-commercial requirements that excluding them from contributing to the seedbank of a new set of tools and materials in the way which occurred in software and allowed the emergence of a different type of economy over time (2).

Secondly, the aggression of content-industry’s approach has not been met sufficiently robustly, if anything the opposition has become more timid. Consequently copyright conferences and the putative ‘access to knowledge’ movement continue to be the platform to make minor demands, easily accommodated within the business structure of the industrial model. An index of this conservatism is provided by the fact that major challenges are now offered only by other commercial actors such as Amazon or more recently and dramatically Google. Instead of assuming a strong confrontational public position, copyright critics have either gripped doggedly to shibboleths such as ‘fair use’, or worse sought to carve out narrow copyright exceptions, something so mind-numbing as to bore anyone not paid to remain awake. On the side of those who long for the future, and have no stake in the preservation of entrenched interests, time has to all effects stood still.

II
The Model

Our proposal would function as follows. Each individual would have $200. That $200 would be derived either from a new tax, would replace existing monies given out as cultural subsidies by the state (where that is significant, thus not in the US), a tax deduction (such as 501(3)(c) contributions currently function), or from rebudgeting (from the military, prison or immigration services for example).

1. A portion (eg 20%) would be disbursed for the funding of a public infrastructure in the form of theatres, cinemas, concert halls, games halls, rehearsal space, instruments, tools, technology. The manner of allocation could be either (a) the state (b) an elected local committee (c) individuals. One could start with (c) and take recourse to (b) and then (a) where people were unwilling to take the time to perform the decsion making.

Preferably this infrastructure would not be under the aegis of the state but would be composed of people in the locality. Existing cultural spaces could also apply for a direct allocation.

2. The second and most important component is the direct allocation of cash by users to cultural producers. Our estimate is that this should account for 75% of all monies. People would be free to give their cash to anyone who registered as a cultural producer. It is important to underline again that the allocation of funds is entirely down to the free will of the user-donor and is in no way determined by what one actually consumes . Obviously this encompasses all existing professional and semi-professional practitioners, but could just as easily include the four sixteen years playing punk music in the garage at the end of the street, the weblog writer, the independent film maker…..

Such openess renders the system as described vulnerable to manipulation and gaming, as a result of which we propose the following.

(a) Threshold
Setting a minimum threshold of donations that must be superceded before the cultrual worker can get access to the money ensures:
(i) That schemes such as ‘I’ll give you my $140 if you give me yours’ are foiled.
(ii) That the amount of money is such as to actually allow the recipient to take some time free from work, purchase necessary eqipment. Where the individual to whom you make the donation fails to reach the threshold, the money could either:
(a) go into a local infrastructure fund either in the area of the donor or the disappointed recipient.
(b) go to a second order preference.

Choosing a basically arbitrary figure, we would propose $1000 dollars as a reasonable threshold to set.

(b)Income Ceiling
Recipients would be obliged to reveal their income from the system over the last year so that donors can weight their contributions equitably. Thus should one performer recieve 50 million, a potential donor may decide that her needs have already been adequately catered for, and to allocate the money to someone more in need.

(c) Anonymity
The means by which the transfer of the monies is to be effected must be anonymised, principally so as to prevent people from being able to make reliable agreements with one another. An architecture which facilitates easy breaches of promises also makes it more difficult to game.

(d) Distributed Sponsorship
Minimises determining power of any contributor, individual donations remain sufficiently small that they do not allow the tastes of the individual donor to determine the nature of the work crerated (unlike traditional patronage).

3. Randomness

everyone on the register, or
(b) everyone on the register who has not managed to supercede the threshold.

3a. The question as to whether an Arts Council style body would have any future in this paradigm is undetermined. Their may be areas, particularly those which lack a mass audience, which we as a group may decide should receive some financial support. It is difficult to predict what forms of self-organisation amongst cultural producers and users would result from a system of this nature, but they may be appropriate bodies to make such determinations should the public agree to the principle.

4. The quid pro quo for the user is that the cultual output of the recipients goes firectly into the public domain or perhaps a form of copyleft-like system (similar to the GPL). As a result there are no restruictions on personal use or copying. Users would also be entitled to integrate other people’s materials into their own works (referred to in copyright law as derivative works). The only requirement on a next generation user would be to acknowledge the attribution of the original work. This is how the free software movement works currently, where the names of each person who has contributed to its development is listed in the program itself. Such a requirement has other significance as we will see later.

5. There are alternatives available in terms of actually effecting the transfer of funds. Current regimes for the collection and disbursement of royalties rely upon collective rights organisations. These CROs have been criticised for the amount of the funds they absorb as administrative costs which amount to between 18-20% in the case of the United States. Furthermore, their allocational methods favour larger players in the market.

i. One possibility is to use systems based on the paypal or amazon mechanism to transfer the funds directly into a bank account established for the recipient. This could be implemented using the Trusted Third Party System common in public key cryptography. In this case, a bank account would be established in trust for the cultural worker, but she would not have access to the funds until a given set of criteria were satisfied. Under our model the first of these criteria would be the supercession of the threshold. Further requirements could be added, such as production of a given work by a specified date, or pending independent review by an agreed third party to verify the quality of the work.

ii. Another option is to license several CROs to carry out the distribution. They would compete with one another on several levels:
a) The level of transparency to the recipients and the public
b) The level of costs involved in their administration.
c) Differing mechanisms of allocating
funds to the different parties that contribute to a work. For example, one CRO could have a system whereby all of the funds contributed to a music group would go to the star lead-singer, whereas another would have an algorithm for paying session musicians, sound engineers, producers according a manadated minimum.

6. As was mentioned earlier, later creators are fully entitled to appropriate existing works for their own purposes, but are required at attribute their sources.
There are several reasons for this.
a) It allows users to modulate their contributions based upon who they feel to merit the cash. If Alice watches a film which she really hates, with the exception of a five minute passage which she loves and wants to support, then the list of footage with the respective creator attached allows her to make the contribution to the maker of that sequence rather than the film-maker, should they not be the same person.

b) In the transition period this would be particularly important, as cultural producers keen to commit themselves to the scheme will often find themselves integrating proprietary works which although they can distribute, they cannot agree to the re-use of. Such a taxonomy can make endusers aware of this and provide them with the necessary data to contact and perhaps make an agreement with the owner of the rights.

c) The list would also highlight the backend participation which may be relevant in the case of deciding which of several vying CROs one wishes to use to carry out the transfer of cash as was mentioned in 5.ii(c)

6.(b) Many cultural producers complain about the surreptitious use of their works by broadcatsers and other commercial organisations who do not remunerate them. Instituting such a practice of attributive lists would crete the opportunity to force commercial operators to do the same and account from where they derive their footage. Instead the system of credits is in fcat under massive pressure as broadcasters attempt to amximise their advertising time and install themselves as gatekeepers between the producers and the audience (as exemplified by their refusal to allow program-makers to include the URLs for their independent web sites).

Some Comments on the Model

7. This proposal began as a reflection on the position of musicians in the digital environment, principally becuase the rapid proliferation of MP3s and file sharing have thrown the music industry into something of a ‘crisis’. Yet as many people are aware, few musicians have had a substantial income from royalties. This proposal was devised to deliver material self-sufficiency for musicians and the supply of pleasing things (as well as the possibility of ther reuse) for users, the interests of the music industry as such were not a concern of ours.

8. Whilst developed as a reflection on music, we were under no illusions that the consequences of digitization would be limited to that form. As access to broadband and wifi expands we are are already witnessing the ‘napsterisation’ of the film industry where some analysts claim over a half a million programs/movies are now being swapped every day. As we believe that the decommodification of culture is a good thing in general, and argue that this proposal will help to close the gap between producer and audience, we claim that this model can be tweaked to cover essentially all forms of culture.

9. As broadcasters are not actually involved in a business model based on the selling of culture so much as the selling of audiences to advertisers, they should not be included in this arrangement and should have to pay creators for use of their work. This could be quite complex but no more than the problems posed by copyright adjudication currently.

10. Even if the copyright system was abolished in the morning, many of the same players would continue to dominate culture. The success of a work is to a significant extent a function of the amount of work put into marketing it, and the circuits of promotion that one has access to. The major music companies employ indy promoters to circumvent payola laws and ensure their presence on mass market radio, control many of the major urban music venues, many magazines and television stations which are employed to construct the star system. Our proposal cannot change that. What it can do is to uncouple the consumption-payment axis which provides the means to continue funding this mechanism on the basis of a guarantee provided by the state (copyright law). the likelihood is that the majority of people will continue to give much of their money to the stars, but we do think that over time people will give more of thier money to local performers/creators or to those who have made the effort to share their work with them.

11. People often believe that this proposal is tainted by a certain statism. We argue the contrary as the crux of the proposition is the withdrawal or retirement of the state from two areas of activity: the maintenance of the regulated monopoly that is copyight and the allocation of public subsidies to culture through Arts Councils etc.

Positive Aspects of the Model

  • Severing the relationship between consumption and remuneration renderssuperfluous the demand for a centralised trackingmechanism to gather infpormation on people’s use of works.
  • No need for a progressively more punitive system employing criminal sanctions and intrusion into the private sphere.
  • Releases large amounts of materials to be used by next generation creators, lowering their costs and removing barriers to entry.
  • Spreads the distribution of monies in a manner such as to allow a far greater number of people to work full-time in production or at least to be able to take some months out of the year to be devoted to that purpose.

Comments are appreciate, this is just an incomplete draft….

December 5, 2006 - Posted by | copyright, intellectual property, social cooperation

3 Comments »

  1. Thank you for the information. Very informative and thoughtful.

    Regards,
    ACLMunson-Ellis

    Comment by ACLMunson-Ellis | October 9, 2009 | Reply

  2. Hi Alan – we met at OVV being something of an analogue girl it took me awhile to find this – I have just posted an excerpt on our site as we in Canada are in the midst of a DMCA debate. I am trying to put together an event around the commons and hoped you might get in touch to discuss your participation. Martha

    Comment by Martha | September 11, 2010 | Reply

  3. You’ve gotten incredible stuff on this site.

    Comment by Phil | August 6, 2013 | Reply


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