Legal Perspectives and User Access
From Free Culture Forum Wiki
[edit] Introduction
The emergence of a global, digital network capable of producing ubiquitous copies with minimal costs has changed the worlds of publishing forever. Laws, regulations and conventions that evolved to foster creation and dissemination of creative work in a world defined by physical copies cannot accommodate these new realities, and society must find new ways to balance competing interests and demands in these realms. The primary competing interests are each of great significance: to support and ensure continued creation of intellectual works of significant societal value, and to ensure all citizens have unfettered access to such works for a wide variety of uses. We believe these interests can be reconciled in ways that reward the intellectual effort of creation and also make it accessible to the widest number of consumers. Not all the existing institutions, structures or conventions of today’s system will survive into tomorrow. Those that do survive will be altered and refined by the new realities. Entirely new schemes may also be required.
[edit] The Public and the Creative Community
1. The development of the digitally networked environment and of information and communication technologies affords an unprecedented range of new opportunities for the public to directly participate as and interact with creative individuals and communities in the information society.
2. The proliferation of new publishing platforms and technologies, including web pages, listservs, weblogs, social networks, multimedia online, search engines, virtual worlds, distributed computing, P2P, wikis, and other collaborative editing and publishing tools, are the tools that enable the emergence of a dynamic creative community, but which also challenge the mechanisms of control over information flows embedded in older hierarchical distribution models.
3. The collaborative production of knowledge is essential to the public as a creative community and serves as a new social infrastructure where motivation and reward includes reputational benefits, social interaction, cultural exchange, and other incentives in addition to monetary compensation.
4. Creativity in the information society constitutes the public’s right to engage ideas by making transformative use of existing expressions as the fundamental building blocks of culture in the digital age.
5. The evolution of copyright and technological progress should accommodate the development of a democratic culture rather than undermine it, in order to promote participation in culture and in the production and dissemination of creative works.
[edit] A. Reverse Three-Step Test
Innovation, creativity, and access to knowledge may only be limited or constrained when the following three conditions are met simultaneously:
1. in exceptional circumstances of public interest;
2. in ways that do not undermine or discriminate against the use, transformation and dissemination of knowledge, creative works and technology infrastructures, services and software;
3. when such restrictions do not violate human and civil rights in the information society or are otherwise inconsistent with democratic culture.
[edit] B. Knowledge Commons and Public Domain
- Non-copyrightable Works
1. There should be no copyright in laws, government reports, political documents and speeches, or regulatory compliance information.
2. Sui generis database rights should not be introduced, and should be repealed in jurisdictions where they exist.
- Public domain Works
1. Every legal system should allow a copyright work to be dedicated to the public domain prior to the expiry of the copyright term.
2. Public funding should be conditional on the public acquiring expanded rights to use the works (for example, dedication to the public domain or licensing under a copyleft or share-alike licence).
3. Research funded through educational institutions should require the results to be published on an open access model. Policy makers should implement the recommendations of the Paris Accord on the topic of scholary publishing.
- Openly licensed Works
Every legal system should facilitate and promote open licensing to an equal extent as the facilitation and promotion of proprietary licensing.
- Orphaned Works
There should be freedom to use works if a copyright owner cannot be located after a due diligence search.
- Freely available Works
It should permitted to freely access, link to and index any work that, although not openly licensed, is freely accessible to the public online.
- Proprietary Works
The copyright term should not excede to the minimum Berne term. In the longer term, we support the reduction of existing copyright terms which do not benefit consumers or authors.
[edit] C. Defending access to Technological Infrastructures and Net neutrality
Recognising that the Internet is essential for access to knowledge and education and for the practical and meaningful exercise of freedom of expression and communication.
Citizens and consumers are entitled to an Internet connection that enables them to send and receive content of their choice, use services and run applications of their choice, connect hardware and use software of their choice that do not harm the network.
Citizens and consumers are entitled to an Internet connection that is free of discrimination, whether blocking, limiting or prioritizing, with regard to type of application, service or content or based on sender or receiver address.
IP addresses of citizens and consumers are potentially identifiable data and the data subject has a right of access to correct, delete, or prevent the transfer of their personal information.
Filtering of Internet content is a threat to fundamental rights, and is an invalid, inefffective and disproportionate solution for enforcement.
Citizens and consumers are entitled to access to a free, unlicensed band of the spectrum for digital communications, like the 900MHz analog TV range.
[edit] D. Rights in the Digital Context
Intellectual property should not be considered an end in itself, but rather a medium to promote public interest, innovation, access to science and technology.
- Right to Quote
Quotation, defined as the extraction of a part of, but not the entire work, must be defended in all cases as a vehicle for the democratic development of the information society, in all cases in which the material quoted has already been made public in advance, whether it is quoted for educational or scientific reasons, or for purely informational, creative purposes or any other purpose.
- Private Copying
The rights of the individual in the private sphere and for personal use should not be undermined by the exclusive rights of the author. There is no need for the copyright holder to authorise or be compensated for any reproduction, in any form, when dealing with works that have already been made public, when the reproduction is done for private use or sharing and when no direct or indirect economic profit is obtained from it.
- Fair Use
1. That there be no requirement to seek an author's permission for the reproduction or dissemination of artistic, scientific or technical works that have already been presented publicly, when the purpose is educational, teaching, scientific research, information, satirical or incidental to the principal creative objective, as long as attribution is included and all moral rights respected. That this use be subject to “share-alike” formulas in order to avoid undue appropriation.
2. The defence of the right to private copying and fair use of works should be firm and absolute, given that copying is the very base of learning and culture. Authors/creators are indebted to shared culture and for this reason their contributions to Culture do not have to be subject to any form of compensation beyond their own commercial use of their work (sales, fees and royalties related to said sales or performances.).
3. There will be a particular emphasis on defending the right to information.
4. There will be a particular emphasis on preserving the right to parody.
5. In addition, we subscribe to the delineated list of fair uses compiled in “Article 3-1 - General Limitations and Exceptions to Copyrights” of draft document A2K 2005: http://keionline.org/content/view/235/1
6. Remedies should be limited to monetary damages for actual infringement. Lost sales and statutory damages cannot be applied to private coping and personal use. Injunctions shall not be issued if they constitute a prior restraint.
7. As per Article 3-7 (A2K draft) – Non-Original or Creative Works: Facts and Works lacking in creativity (“a de minimus quatum of creativity”) should not be subject to copyright or copyright-like protections.
- Freedom to Innovate
Freedom and innovation are not opposites, but rather concepts that are connected. Repressisve legal regimes can that reduce freedom also harm innovation. People need the freedom to change, modifiy, improve and test inventions, devices, and systems, and to freely engage in critical speech regarding such innovations.
- Patents: refer to A2K draft, Part4 (http://keionline.org/content/view/235/1)
[edit] E. Stimulating Creativity and Innovation
We declare our concern for the well-being of artists and authors. We propose various formulas of collectively rewarding artistic creation and innovation. These solutions could include the establishment of fiscal or contributive measures with the objective of directly funding artistic creation with the following criteria:
- There should be a diversity of sources of support for creative communities whether commercial, direct fiscal support oriented by consumers and public investment
- In order to promote the just remuneration of artists, the role of intermediaries, large content industry and political interests should all be limited to the maximum. The role of established intermediaries should be limited and for critical functions such as collecting usage data and defining distribution to beneficiaries.
- Author Rights and Royalties Distribution
1. Royalties are not a substitute for a liveable wage. The objective should be the creation of a stable employment situation for autor/creators that would not necessarily be totally dependent on the ups and downs of the income of royalties.
2. Differences in the bargaining power produce unfair outcomes between creative individuals and the commercial entities that invest in, market or sell culture and knowledge goods and to many creative works being withheld from the public. That author/creators should be paid equitably for the activity they are involved in), whether or not they are members of a collecting society. Unfair contracts between authors and publishers should not enforced by courts. Within 30 years of signing a contract with a publisher or employer, the author or her heirs should have an opportunity to regain the rights to the work under copyright. This shall not effect the validity of any existing licenses to use works, or open licenses to use works granted to the public, including that have conditions that protect the commons.
3. When there is commerical exploitation of a work, rules regarding economic rights should make a priority to protect the economic interests of creative communities, and insure that third parties such as distributors do not prevent creative communities from having fair shares of the rewards, including the fair royalities to creative persons.
4. The abolition of all unjust "digital levys" that indiscriminately sanction everybody in the name of "compensation for artists" and that attempt to penalize activities that are in no way criminal.
- Royalties Management and Collecting Societies
1. Authors/creators shall be able to always revoke their mandate.
2. Considering that collection societies are private entities that ONLY AND EXCLUSIVELY manage the “accounts” of their members which are never the entire creative comunity.
3. That free competition be permitted as with all private entities, and we oppose legal monopolies for collection societies.
4. That authors and editors should not be represented by the same entity, as in the days of vertical unions.
5. And, above all, that collecting societies should only collect money and manage works that are registered with the collecting society, and should not collect money from uses of works that are explicitly licensed for use under free licences. No collection society should be allowed to prevent artists or authors from using free licenses.
[edit] F. Access for works for persons with reading disabilities
When accessible formats of works for persons who have reading disabilities are created under copyright limiations and exceptions, the global legal systems should enable the cross border import and export of such works.
[edit] G. Transparency
There is a need for transparency in enforcement, including information on who are the authorities in charge of the law's application, the obligatory procedures, in order to avoid the breach of any fundamental rights (e.g. invasion of privacy, freedom of expression, etc.)
The governments should ensure, in a transparent and public process, the existence of systems of evaluation of how the norms are applied. This includes taking into consideration in the norm-setting process the results published by the independent experts hired for the evaluation (see – database directive).
A meaningful way to ensure the transparency process is to have obligatory transparency audits. We are promoting a 3 strikes systems for violators of the public right to know. There is a public interest in transparency of lobbying activities. A transparent process in national and international norm setting needs to include at least:
1. Public access to documents related to this process, the possibility to attend meetings (including via the Internet) and to be to able to read the meeting minutes. These minutes will include the names of the attendees, advisers, and the casted votes.
2. Details on the persons that are making the decisions
3. Meaningful opportunities to submit comments to the norm-setting process. The comments from all the contributors to be made public. A dialogue between the parties is necessary, especially in responding to comments in writing. Public voices should be part of the public record !
4. Information on the evidence that is presented to promote or justify policies, including their sources and their reliability. Independent evlauation or peer review of data relevant to the intelectual property systems is needed.
5. Democratic access to statistics that are needed to evaluate the way that copyright and patent systems work, including for example the impact of such measures on prices, or the royalities that are paid to creators for access to works.
[edit] Related documents and sources
- draft document A2K 2005 (http://keionline.org/content/view/235/1)
- Necessary and Urgent Measures to Protect the Knowledge Society by eXgae (http://co-ment.freeknowledge.eu/text/6/)
- La Quadrature du Net on Net Neutrality (http://www.laquadrature.net/en/Net_neutrality)
- Consumer International. IP-watchlist09 (http://a2knetwork.org/sites/default/files/ip-watchlist09.pdf)
- Proposal made to the UN World Organisation for Intellectual Property made by Amigos del Desarrollo (Friends of Development) (Argentina, Bolivia, Brazil, Cuba, Ecuador, Egypt, Iran, Kenya, Perou, Dominican Republic, Sierra Leone, South Africa, Tanzania and Venezuela) (http://www.wipo.int/edocs/mdocs/scp/en/scp_11/scp_11_5.pdf)
- Daniel J. Gervais. "Towards a New Core International Copyright Norm: The Reverse Three-Step Test" Marquette Intellectual Property Law Review 9 (2005): 1-37(http://works.bepress.com/daniel_gervais/1)
- Asking for an open internet in Europe (http://www.euopeninternet.eu/)
- The Norwegian principles NRA (http://www.npt.no/iKnowBase/Content/109604/Guidelines%20for%20network%20neutrality.pdf)
- FCC 4 first principles (http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260435A1.doc)
- Julius Genachowski’s speech from 21 September adding principle 5 & 6 (http://openinternet.gov/read-speech.html)
- BlackOutEurope (http://blackouteusp.wordpress.com/)
