Putting Freedom Back into “Free Culture’
Today I want to make some comments about a fraught term, free culture, and a project undertaken by Mako, Erik Moller and others – Freedom Defined. When Creative Commons was founded in 2002 there were already several licenses developed for cultural works, upon their arrival the permutation of choices multiplied and the consequences became more confusing. Somewhere, within all this choice, the essence of the endeavour was lost – what positive goal were its advocates trying to achieve? Instead, we finished up with a bewildering array of boilerplate legal documents, each one apparently designed for discrete purposes, and no inspirational vision – unless the slogan ‘some rights reserved’ gives you goose-pimples. New ideas need an easily communicable crux, and legalese will not do the trick. Choice is a good thing, but for it to be useful people need to understand the implications of their selection, and copyright is a pretty technical field whose workings are neither intuitive nor transparent.
The definition of free cultural works seeks to establish standards for free use which are clear and easily understood. They use four criteria drawn from free software practice and add a little tweaking. Free works must allow:
- use and performance of the work;
- study and application of the information contained therein;
- redistribution of the work;
- the creation and distribution of derivative works.
Two key differences with respect to the most popular licenses are immediately obvious: (i) no restriction on commercial use, and (ii) derivative works are presumptively allowed. Permitted qualifications to these criteria are (i) requirements to attribute the original author, like CC’s BY license and (ii) limitations on the right to make derivative works to those who satisfy a symmetric collaboration requirement i.e. copyleft or share-alike – CC’s (SA).
Licenses satisfying these criteria are listed here.
In addition to usage rights, they also specify technical access measures that should be complied with:
- availability under an open format
- availability of the underlying source of a work where relevant (eg a musical score)
- freedom from other intellectual property restrictions, such as patents.
Aims and Objectives
The purpose behind Freedom Defined is to identify an aim and provide direction for a free culture movement. I think that we need to unpack this further and identify the changes that we ultimately desire to arise from use of these tools. In free software the GPL enabled the:
- the freedom to contribute to a productive community without being ripped off;
- emergence of a real alternative to the concentration represented by Microsoft;
- development of an OS which would be responsive to users demands rather than the DRM-plans of media and software companies;
- bettering of the computer programmers lot, by placing a pool of code in common that they could use and customise to provide services on contract;
- fulfillment of the promises of marginal cost economics, making works available to people for free.
My question, then, is what are the analogous gains to be made in the cultural space giev the particular nature of audio-visual production?
Free culture can certainly help:
- erode the unchallenged domination of the broadcast space by the agent of concentration;
- foster media-literacy and a culture of directly intervening in our symbolic environment;
- transform the scope and scale of independent production through collaboration.
The Non-Commercial (NC) Ghetto
The flaw in the more restrictive CC licenses (i.e. all of them except BY-SA and BY) is that they offer nothing that users could not already acquire without licensing: if I like your music and have your CD, no law can stop me from ripping it an distributing it unilaterally. This perspective may sound somewhat brutal but this is the nub of it – you can only control user’s behaviour when they provide an address i.e. for billing and crediting purposes etc that is when they want to make money. Secondly, offering the chance to sell other peoples works encourages investments in infrastructure to popularise and support these works, as has happened in the case of LINUX distributions and FLOSS service companies. The NC limitation generally ghettoizes works away from such enhancements.
Micro-Content and Sustainability: The Web
For today’s producers of micro-content advertising and user donations are essential revenue mechanisms; the NC clause impedes the sustainability of small producers who might otherwise aggregate or edit such materials. The low cost of running a website puts it within reach of anyone with basic skills and access to the net, and the chance to obtain some revenue frees people to allocate more time to being an information-producer, diversifying the media-scape.
Capital Asymmetries and the Shadow of the One to Many Model
Problems arise with independent works requiring large amounts of time and expense, and their interaction with industrial communication models requiring large capital investment. An obvious example is the risk of broadcasters scheduling BY-SA independent films, selling advertising to the eyeballs they attract, and not paying the producer a cent. Were they to broadcast a program in its entirety they would not fall under any symmetric collaboration obligation (in Europe they would probably have to surrender their broadcast copyright – not currently in existence in the United States). Were they to use BY-SA extracts they would at least have to free the entirety of the program of which it was a part. But the point is that it would contribute little to the universe of free materials available to all. Thus the benefits accrue largely to incumbents or those with comparable resources.
A Micro-Tv Future?
There are few cases of broadcast networks transmitting free works so far, but it can only be a matter of time, given the growing number of small private stations with limited budgets. Cost restraints, after all, are why there are so many trashy game/reality-shows on the boob-tube. Any benefit derived from increased visibility due to broadcast may be offset against a regressive tendency to not pay any producers at all, but rather scour the network for free content. My view is that how this plays out hinges on timing and preparedness. Many experiments are underway in IPTV, and the next couple of years will see the emergence of toolkits enabling users to create their own online station out of a box, together with a user-base willing to spend its attention watching such stations. But that is not the case for now, as demonstrated by the domination of this space by outfits like YouTube, which can subsidise the huge bandwidth costs necessary to win market share. This problem could be solved by means of a p2p architecture but for the moment this remains an unfulfilled prospect.
The Production Cycle of Audio-Visual Works
The second argument against making content available for broadcast without restriction is that there is evidence that it is one of the spaces where a CC-NC license can function within the current setup. In September I heard a fascinating talk by the founder of Magnatunes about their experience. Under their model music is freely available for download, whilst higher quality copies with cover art are sold on CD. But they also license music to a large number of film and television producers each month. He attributed this to the fact that filmmakers are able to use these tracks for free until they have made a commercial deal. Only at that point do they leave the sphere of non-commercial use and have to purchase a license. Gratuity makes a big difference if it allows filmmakers on tight budgets have a soundtrack they can use for screenings and raising financing, and will only have to pay for once they have found a buyer.
An overhaul of audio-visual production can occur only if there is the social plumbing necessary to transform technological affordances into real-life practices, and that plumbing is community. Whilst there have been some attempts to put footage sharing into practice, these have not been been very successful thus far.
In the absence of both (a) the communities necessary to nurture the collaborative process and (b) a simple low-cost architectures for IPTV, I would be wary about endorsing a free model for AV works. In this case it might be better to free the source files – the rushes – under a SA license and impose restrictive terms on broadcasting the finished work over the one-to-many infrastructures of traditional media.
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What am I?
Alan Toner, intellectual property and communications researcher, living in Central European Time. You may have met me long ago at New York University, where I was once a fellow at the Information Law Institute and the Engelberg Center on Law and Innovation, read something I wrote for Mute or Diagonal, or conspired in the shenanigans around the World Summit on the Information society when I worked with WSIS: We Seize!, or through Steal This Film.
Leave a comment on an article if you want to get in touch.
Current Interest: Tracking of users via browser, mobile, or any other digital prosthesis. I believe that users need a universal opt-out from practices that put their web-reading habits in the hands of third parties – Do Not Track. Our online environment should be redesigned to make ubiquitous commercial surveillance impossible, just as it should make the political surveillance revealed by Snowden impossible. Those who believe that such observation brings them benefits are free to hold that point of view, but it just shouldn’t be hardwired into the architecture and should be a matter of free and informed choice.
Earlier I followed developments at the new-born European Observatory on Infringements of Intellectual Property Rights, and its first major project: the Intellectual Property Rights Enforcement Directive (IPRED 2), which will propose new criminal sanctions for IP offenses. The Foundation for a Free Information Infrastructure page dedicated to its previous instantiation can be found here. I’m also interested in ACTA and support the work of the people from Knowledge Ecology International, La Quadrature du Net, the FFII.
And I’m always interested in the conflicts around peer production, p2p and piracy.If you’re interested in this subject you can download and watch Steal This Film, and check out our searchable archive of interviews, built on an early version of pad.ma.
Since 2008 I have participated in a network organised by La Ex promoting alternatives to traditional copyright thinking, am a signatory of their Charter for Innovation, Creativity and Access to Knowledge, and a contributor to their work on Sustainable Models for Creativity in the Digital Age.
In 2005 and 2006 I spent time in Argentina, looking at disputes in the field of pharmaceuticals and biotechnology. At some point I’ll get back to this area, in the meantime, check out GRAIN.
Hedonism and the need to maintain some connection with material culture lies behind the occasional investigative wine tangent: how it’s made, the story it tells, and of course, how it tastes. Responsibility for this vice can safely be attributed to Critical Wine, a network of small producers in Italy who presented it in a political/cultural context that I found… compelling!
Here are links to some blog entries which I think are important:
- Akerman, Branco, Deneuve et al. Against Three strikes/Hadopi Law in France
- Three strikes Law against P2p in France (Hadopi)
- Anthropology Ethnography of P2P: A Day in the Life of a User
- 0xdb movie database goes live
- Resuscitating Alternatives to Copyright
- Intellectual Property Enforcement, European Style: Dogma Internally, Coercion Externally
- Search & Destroy: Enforcement in Eastern Europe
- Not Just Information: Sharing Physical Resources
- The Machinic Sewer
- A Yahoo User’s Journey through the Unknown
- Filmpiraten Crush Austrofascists (at first instance…)
- Pirate Residuum
- Readings from the Book of (library) Genesis
- Cyberspace – the Fifth domain of Warfare?
- Demystifying AdTech
- The Hymn of Acxiom
- Knowledge is born free, yet is everywhere in chains…
- Adam Curtis in Berlin
- Baking Privacy and User Choice into the Web with Do Not Track
- Party Like it’s 2000: Revisiting Crypto
- civil liberties
- Data Protection
- European Court of Justice
- european directives
- european regulations
- european union
- material culture
- open video
- Pirate Bay
- Pirate Party
- social cooperation
- steal this film
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