Action Plan for Copyright Reform and Culture in the XXIst Century
Please participate in drafting the final version via https://quadpad.lqdn.fr/posagenda
"This document is the first draft of a common platform of civil society for the reform of copyright and accompanying measures to ensure the sustainable development of culture in the XXIst century. It was drafted in and following the Free Culture Forum 2012 of Barcelona by a small group of individuals, having participated to and taking inspiration from the following existing proposals:
- The Free Culture Forum Charter and Guide for Sustainable Creativity
- The Communia recommendations and Public Domain Manifesto
- The Polish proposals prepared by Centrum Cyfrowe and the Modern Poland Foundation
- The Elements for the reform of copyright and related cultural policies of La Quadrature du Net
- It is submitted for comments by interested citizens of all countries in view of subsequent revisions.
ACTION PLAN FOR COPYRIGHT REFORM AND CULTURE IN THE XXIst CENTURY
We, citizens and public interest organizations, put forward the following platform for building a free digital cultural space, in which all citizens can participate in the cultural life of the city (polis). The aim is to foster social creativity by and for all, and provide a stable framework for the cultural economy. We will relentlessly promote these proposals towards governments, parliaments and international organizations, making them accountable on their implementation.
[WILL BE INCLUDED HERE AT A LATER STAGE] Indicative : .... Freedom of speech, freedom of expression, freedom of communication ... Article 27 (Universal Declaration of Human Rights) (1) Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
BASIC CULTURAL RIGHTS OF INDIVIDUALS
1. Legalization of non-market sharing and re-use by individuals
The non-market sharing of works between individuals as well as reuse of these works in new creative or expressive pieces, must not be restricted by copyright. The right to this sharing must apply to all works that have been distributed to the public, commercially or not.
Implementation strategies: Several strategies have been proposed to attain these objectives: exhaustion of non-commercial rights of reproduction, making available and communication to the public for digital works; or a specific exception to the same effect.
2. DRM must allow all legal uses
DRM systems, digital handcuffs mechanisms controlling the copy and use of works also block or hinder the legal use of works. Legislation should make it legal to circumvent DRMs for legitimate use (quoting, private copy, pedagogical exception, interoperability among others), including the provision of means to do so.
Implementation strategies: adding mandatory exceptions to article 6 of 2001/29 EUCD directive. An alternative approach was explored in the draft copyright law of Brazil: making illegal technical protection measures which do not enable legal use.
3. recognition of the validity of voluntary dedication to the public domain
Dedicating a work to the Public Domain or the Commons should be considered as a legitimate way to enforce one's copyright and contribute to a common pool of reusable works.
Implementation strategies: The legal enforceability of voluntary dedications should be recognized in all jurisdictions and interpreted as compatible with moral rights.
COLLECTIVE AND INSTITUTIONAL RIGHTS
4. Stronger rights of collective organizations to provide access to and reuse of culture
Libraries, archives and any organization whose mission is to provide access to culture should be empowered to fully exert this mission, and required to respect the rights of the public towards the public domain.
Implementation strategies: requirements for digitizing projects (including public-private partnerships) to provide unrestricted access to and reuse of digitized public domain material, a compulsory exception for orphan works (guarantee of full free-of-charge access to orphan works and right to non-commercial re-use), free non-commercial public performance (including for copyrighted works) in libraries and similar organizations, rights for libraries and archives to search, collect, index, copy, store and give access (under f.i. legal deposit rules) to material that has been made accessible to the public on the Web
5. Broad use rights for education
Copyright must support education and research.
Implementation strategies: Current exceptions and limitations need to be made compulsory and broadened to include formal settings as well as informal settings and lifelong learning.
6. Substantially publicly funded knowledge and culture resource as free licenses or public domain
Cultural, scientific, educational and administrational works and datasets that have been funded substantially by the public need to be made available by default under a free license and in open formats. Exceptions must allow for a limited time of active commercial exploitation and for the protection of personal privacy.
Implementation strategies: This points needs no change in copyright, but a change in public funding policies. This can be implemented at any level of government that funds culture, research, education or the creation of admistrational data.
7. Reform of collective management
Collecting societies are given prerogratives that must come with a duty to exert their mission for the public interest and being accountable to all citizens. They manage money collected for the public. A much greater transparency of collecting society management is needed, their work must become much more democratic and be subjected to public scrutiny. Representing all eligible authors even those insignificant from commercial point of view, without discriminating some business models or dissemination strategies, is collecting societies unfulfilled duty.
Implementation strategies: Amendments to the in process Directive proposal or any National legislation on the matter. One member / one vote. Open data on distribution curves and statistics on beneficiairies (heirs, assignees, living authors).
FAIR CULTURAL ECONOMY AND FINANCING
8. Resource pooling for a many-to-all shared culture
Many-to-all shared culture requires a development of resource pooling financing schemes.
Implementation Strategies: Diverse mechanisms may be experimented, provided that transparency and fair distribution are guaranteed, such as alternative reward systems or incentives for crowdfunding.
9. Legal requirements for fair publishing and distribution contracts
In the digital world, there is a strong risk that publishers and distributors agree on terms that are unfair to both authors and the public.
Implementation strategies: The law must define requirements for publishing and distribution contracts such as: limited term for digital publishing contracts (one or two years); automatic return of rights to authors in case of failure to (re)-publish for each publishing and distribution channel (paper, eBook); possibility for authors to enter in separate contracts or keep for themselves each category of rights; possibility for authors to refuse the application of DRM to their works with effect also for distributors. Requirements for royalties should be based on the best practice of fair trade publishers, wtih possibilities for author to enter in co-production agreements to accompany the development of new modes of publishing.
10. Preventive competition policy and action against distribution monopolies
Competition policy has failed to prevent the constitution of unprecedented monopolies in media distribution of all types, often vast (music downloads, streaming and concert tours, digital film distribution, e-book distribution). These monopolies are often based on the proprietary control of devices and application stores.
Implementation strategies: Preventive measures must be implemented, such as an effective right to interoperability, allowing to develop software and distribute contents for any device, regardless of DRM and other closure mechanisms. Going back to the principles of the software directive of 1991, adapting them to new challenges and removing the impediments to interoperability created by the 2001/29/CE anti-circumvention clauses and its insufficient protection of interoperability.
POSITIVE COPYRIGHT FRAMEWORK
11. Reduction and harmonization of term of protection across territories
Copyright term of 70 years after authors' death doesn't benefit the public nor the authors, only the intermediaries and outsiders to the creative process. A reduction of the term of copyright shall be considered, to bring it back no later than author's death. Copyright shall not be extended to performers and sound recordings.
Implementation Strategies: EU should vote to shorten copyright term to 50 years as soon as possible. This may done without altering Berne convention, which will be much more difficult process; Altering the Bern convention to shorten minimum required copyright term to 14 years since first divulgation of work, which was the original copyright term in many juridictions.
12. Definition of a positive status for the commons and the public domain
The Public Domain deserves a positive status to better identify works and usages which are available for creators and users to build upon. It should be protected from private appropriation and closures through legal, contractual or technical barriers. Works that are in the Public Domain in analogue form should continue to be in the Public Domain once they have been digitized.
Implementation strategies: Copyright law should include a definition for the public domain. Chilean law definition is including "Works whose author have abandoned copyright" and "Works of unknown authors. Registration of works and the re-introduction of formalities would also help identify and locate Public Domain works, identify Right Holders and avoid orphan works; Legal sanction should be devised to prevent false or misleading attempts to claim exclusivity over Public Domain works; The WIPO 1996 treaties should forbid technical protection measures to apply to Public Domain works.
13. No trespassing of fundamental rights for enforcing copyright
Enforcement of copyright has often been used as a way to change the nature of rights by reversing the burden of proof of legitimacy of use or installing an automated copyright police or justice. The fundamental principle of the right to a fair trial in front of an impartial judicial court must be upheld also in the digital domain. Sanctions should be proportionate and procedures should enable a contradictory defence at all stages.
Implementation strategies: Removal of all provisions in National laws (f.i. French HADOPI, Digital Economy Act, Ley Sinde) that create a de facto presumption of infringement; Revision of IPRED should install dissuasive penalties for use of preventive measures when it appears that the proof of infringement does not hold; Copyright infringement should be a civil matter, not a criminal one. If copyright infringement is used for criminal activities (f.i. money laundering), it is these activities that must the object of criminal sanctions; Proportionate sanctions and damages limited to the proven harm that has been caused (no assessment of harm based on proxies such as retail price).
Culture in the digital environment cannot thrives without the conditions for a free and open internet, allowing people to control information channels they rely on while communicating with others. Such conditions include:
- guaranteeing Net neutrality by law
- free access to open spectrum
- right to anonymity and privacy of communications
- public policy to facilitate decentralized infrastructure
- strong right to implement interoperability
- unconditional legitimacy of referring and linking,
- personal sovereignty on data and communications.
First draft of this document was created by participants of Free Culture Forum in Barcelona (26-27 October 2012) and developed/refined in the later days
Full draft open for comments from 6pm, November 8th
Published on comment platform https://quadpad.lqdn.fr/posagenda then: There will a succession of rounds of comments and redrafting