Transcript Management of Rights in the Digital Environment

Digital Copyright
and
the Internet Revolution
WIPO-Turin LL.M., October 31 – November 1, 2012
Giancarlo F. Frosio
Normative Reaction
TPMs
The Digital
Threat
Technological
The Digital
Opportunity
Digital
Copies and
Intermediate
Digital
Copying
Liability of
ISPs
Ethical
Internet
Revolution
Social
Linguistic
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2
Digital Commodification
and Enclosure
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3
Digital Commodification and Enclosure
“we are in the midst of an enclosure movement in our information
environment.”
Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on the
Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354, 362 (1999)
“second enclosure movement”
James Boyle, The Second Enclosure Movement and the Construction of the Public
Domain, 66 LAW & CONTEMP. PROB. 33, 52 and 62 (2003)
“information feudalism”
PETER DRAHOS WITH JOHN BRAITHWAITE, INFORMATION FEUDALISM: WHO OWNS
KNOWLEDGE ECONOMY? (Earthscan Publications 2002)
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THE
Digital Commodification and Enclosure
There is a connection between the project of information feudalism [ . . . ] and
medieval feudalism as both involve a redistribution of property rights. In the
case of medieval feudalism, the relationship of the lord to the land and vassals
was a relationship of great inequality. The majority of humble folk were subject
to the private power that lords exercised by virtue of their ownership of the
land. This private power became in effect governmental power as lords set up
private manorial systems of taxes, courts and prisons. The redistribution of
property rights in the case of information feudalism involves a transfer of
knowledge assets from the intellectual commons into private hands.
These hands belong to media conglomerates and integrated life sciences
corporations rather than individual scientists and authors. The effect of this, we
argue, is to raise levels of private monopolistic power to dangerous global
heights, at a time when states, which have been weakened by the forces of
globalization, have less capacity to protect their citizens from the
consequences of the exercise of this power. It was the loss of Rome’s capacity
to protect its citizens that provided an important condition for the feudalization
of its social relationships.
PETER DRAHOS WITH JOHN BRAITHWAITE, INFORMATION FEUDALISM: WHO OWNS
2-3 (Earthscan Publications 2002) (emphasis added)
Giancarlo F. Frosio, (CC) by-nc-sa
THE
KNOWLEDGE ECONOMY?
Digital Commodification and Enclosure
“[T]he public domain is under pressure as a result of the ongoing
march towards an information economy. Items of information,
which in the 'old' economy had little or no economic value, such
as factual data, personal data, genetic information and pure ideas,
have acquired independent economic value in the current
information age, and consequently become the object of
property rights making the information a tradable commodity.
This so-called 'commodification of information', although
usually discussed in the context of intellectual property law, is
occurring in a wide range of legal domains, including the law of
contract, privacy law, broadcasting and telecommunications law.”
P. Brent Hugenholtz and Lucie Guibault, The Future of the Public Domain: An
Introduction, in THE FUTURE OF THE PUBLIC DOMAIN: IDENTIFYING THE COMMONS IN
INFORMATION LAW 1 (Lucie Guibault and P. Brent Hugenholtz eds., Kluwer Law
International 2006)
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Digital Commodification and Enclosure
“[i]nformation that used to be “free” is now increasingly
being privatized, monitored, encrypted, and restricted.
The enclosure is caused by the conflicts and
contradictions between intellectual property laws and
the expanded capacities of new technologies. It leads to
speculation that the records of scholarly communication, the
foundations of an informed, democratic society, may be at
risk.”
Charlotte Hess and Elinor Ostrom, Introduction: An Overview of the Knowledge
Commons, in UNDERSTANDING KNOWLEDGE AS A COMMONS: FROM THEORY TO PRACTICE 326 (Charlotte Hess and Elinor Ostrom eds., MIT Press 2006)
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Digital Commodification and Enclosure
[ . . . ] possession is nine-tenths of the law.
Mark Rose, Nine-Tenths of the Law: The English Copyright
Debates and the Rhetoric of the Public Domain, 66 LAW &
CONTEMP. PROBS. 75, 85 (2003)
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Digital Commodification and Enclosure
Since Harold Demsetz, economists have viewed
property rights as a desirable tool to internalize
the full social value of people’s actions and
therefore maximize the incentive to engage in
those actions.
See Harold Demsetz, Toward a Theory of Property Rights, 57
AMERICAN ECON. REV. 347 (1967).
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Digital Commodification and Enclosure
“the tragedy of the commons”
Hardin Garrett, The Tragedy of the Commons, 162 SCIENCE 1243 (1968)
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Digital Commodification and Enclosure
“The best prescription for connecting authors to their
audiences is to extend rights into every corner where
consumers derive value from literary and artistic works. If
history is any measure, the results should be to promote
political as well as cultural diversity, ensuring a plenitude of
voices, all with the chance to be heard.”
PAUL GOLDSTEIN, COPYRIGHT'S HIGHWAY: FROM GUTENBERG TO THE CELESTIAL JUKEBOX
236 (Stanford University Press 1994)
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Digital Commodification and Enclosure
Empirical studies have shown that common resources can be
effectively managed by groups of people under suitable
conditions, such as appropriate rules, good conflict-resolution
mechanism, and well-defined group boundaries.
See generally ELINOR OSTROM, GOVERNING THE COMMONS: THE
EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (Cambridge
University Press 1990);
ELINOR OSTROM, ROY GARDNER, AND JAMES WALKER, RULES, GAMES,
AND COMMON-POOL RESOURCES (University of Michigan Press 1994);
ELINOR OSTROM, THE DRAMA OF THE COMMONS (National Academies
Press 2002)
Giancarlo F. Frosio, (CC) by-nc-sa
Digital Commodification and Enclosure
the comedy of the commons
Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and
Inherently Public Property, 53 U. CHI. L. REV. 711 (1986)
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Digital Commodification and Enclosure
the tragedy of the anti-commons
Michael A. Heller, The Tragedy of the Anticommons: Property In the
Transition from Marx to Markets, 111 HARV. L. REV. 621 (1998)
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Digital Commodification and Enclosure
“Today, the greater capacity for the dissemination of
knowledge, for cultural creativity and for scientific research
carried out by means of the enhanced facilities of computermediated telecommunication networks, has greatly raised
the marginal social losses that are attributable to the
restrictions that those adjustments in the copyright law have
placed upon the domain of information search and
exploitation.”
Paul A. David and Jared Rubin, Restricting Access to Books on the Internet: Some
Unanticipated Effects of U.S. Copyright Legislation, 5 REV. ECON. RES. COPYRIGHT ISSUES
50 (2008)
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I
Technological
Revolution
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Technological Revolution
Just as artists have always travelled, to join sponsors, avoid
wars or learn from masters far from home, now digital technology
helps them to cross borders and break down barriers. Their work
can be available to all. In a sense, the internet is the realisation
of the Renaissance dream of Giovanni Pico della Mirandola: all
knowledge in one place. Yet, it does not mean there are no more
obstacles to sharing cultural and artistic works on the net.
Neelie Kroes, European Commission Vice-President for the Digital Agenda, A
Digital World of Opportunities, speech delivered at the Forum d'Avignon - Les
Rencontres Internationales de la Culture, de l’Économie et des Medias, Avignon,
France, SPEECH/10/619 (November 5, 2010).
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Digital Humanities and Science
Google labs, Books Ngram Viewer,
http://ngrams.googlelabs.com
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II
Ethical
Revolution
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Ethical Revolution
Virtual Choir 2.0
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Ethical Revolution
Life in a Day
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Ethical Revolution
“I believe we are moving into a new kind of cultural if not
economic reality. We are moving away from a world
organized around centralized control, strict intellectual
property rights and hierarchies of credentialed experts, to a
radically different order. The new order is predicated upon
open access, decentralized participation, and cheap and
easy sharing.”
David Bollier, The Commons as New Sector of Value Creation: It’s Time to Recognize
and Protect the Distinctive Wealth Generated by Online Commons, Remarks at the
Economies of the Commons: Strategies for Sustainable Access and Creative Reuse of
Images and Sounds Online Conference (Amsterdam, April 12, 2008)
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Ethical Revolution
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Ethical Revolution
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Ethical Revolution
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Collaboration
[. . . ] cooperation precedes individuation: cooperation is the
foundation of human development, in that we learn how to be
together before we learn how to stand apart.
RICHARD SENNETT, TOGETHER: THE RITUALS, PLEASURES,
COOPERATION (Yale U. Press 2012)
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AND
POLITICS
OF
26
Collective Intelligence
Digital Collective Intelligence
PIERRE LEVY, L’INTELLIGENCE COLLECTIVE: PUR UNE ANTHOPOLOGIE DU CYBERSPACE
(Editions La Découverte 1995).
CHARLES LEADBEATER, W E-THINK: MASS INNOVATION, NOT MASS PRODUCTION (Profile Books
2009);
DON TAPSCOTT & ANTHONY D. W ILLIAMS, W IKINOMICS: HOW MASS COLLABORATION CHANGES
EVERYTHING (Atlantic Books 2008) [hereinafter TAPSCOTT & W ILLIAMS, W IKINOMICS];
CLAY SHIRKY, HERE COMES EVERYONE: THE POWER OF ORGANIZING WITHOUT ORGANIZATIONS
(Penguin 2008);
DAVID W EINBERGER, EVERYTHING IS MISCELLANEOUS: THE POWER OF THE NEW DIGITAL
DISORDER (Henry Holt 2008);
CASS R. SUNSTEIN, INFOTOPIA: HOW MANY MINDS PRODUCE KNOWLEDGE (Oxford U. Press
2006).
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The Wealth of Networks: Networked Information Economy
Radical decentralization of intelligence in our communications
network and the centrality of information, knowledge, culture, and
ideas to advanced economic activity are leading to a new stage
of the information economy— the networked information
economy.”
YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS
MARKETS AND FREEDOM 32 (Yale University Press 2007)
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The Wealth of Networks: Commons-based Peer Production
“networked environment makes possible a new modality
of organizing production: radically decentralized,
collaborative, and nonproprietary; based on sharing
resources and outputs among widely distributed, loosely
connected individuals who cooperate with each other
without relying on either market signals or managerial
commands. This is what I call ‘commons-based peer
production.’”
YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS
MARKETS AND FREEDOM 60(Yale University Press 2007)
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The Wealth of Networks: Commons-based Peer Production
Highly generative:
modular
granular
cheap to integrate the results
YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS
MARKETS AND FREEDOM 60 (Yale University Press 2007)
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The Wealth of Networks
[transforming] small grain of innovation [into distributed
and collective forms of intelligence]
Jerome H. Reichman, Of Green Tulips and Legal Kudzu: Repackaging Rights
in Subpatentable Innovation, 53. VAND. L. REV. 1743 (2000)
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The Wealth of Networks
“What characterizes the networked information economy
is that decentralized individual action – specifically,
new and important cooperative and coordinate action
carried out through radically distributed, nonmarket
mechanisms that do not depend on proprietary
strategies – plays a much greater role than it did, or
could have, in the industrial information economy.”
YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS
MARKETS AND FREEDOM 3 (Yale University Press 2007)
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The Wealth of Networks
KARL POLANYI, THE GREAT TRANSFORMATION (1944)
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Gift Economy
[ . . . recognition that value can be created by social practices
that cannot be explained by standard market economic focus
on quantification.
David Bollier, The Commons as New Sector of Value Creation: It’s Time to Recognize and
Protect the Distinctive Wealth Generated by Online Commons, Remarks at the Economies of
the Commons: Strategies for Sustainable Access and Creative Reuse of Images and Sounds
Online Conference (Amsterdam, April 12, 2008)
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Gift Economy
[free software as the] quintessential instance of commons
based peer production.
YOCHAI BENKLER, THE WEALTH OF NETWORKS, at 63-68
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From Open Source to Open Culture
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From Open Source to Open Culture
Facebook
Costumers as Innovators
Stefan Thomke and Eric Von Hippel, Customers as Innovators: A
New Way to Create Value, 80 HARV. BUS. REV. 74 (2002)
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Open Access, Free Culture, UGC and Remix
“Viral spiral? Viral, a term borrowed from medical science,
refers to the way in which new ideas and innovations on
the Internet can proliferate with astonishing speed. […]
The spiral of viral spiral refers to the way in which the
innovation of one Internet cohort rapidly becomes a
platform used by later generations to build their own
follow-on innovations. It is a corkscrew paradigm of
change: viral networking feeds an upward spiral of
innovation.”
DAVID BOLLIER, VIRAL SPIRAL: HOW
THEIR OWN (New Press 2009)
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THE
COMMONERS BUILT
Giancarlo F. Frosio
A
DIGITAL REPUBLIC
OF
Ethical Revolution
We are in the midst of a revolution in the way that knowledge
and culture are created, accessed and transformed. Citizens,
artists and consumers are no longer powerless and isolated in
the face of the content production and distribution industries:
now individuals across many different spheres collaborate,
participate and decide.
Charter for Innovation, Creativity and Access to Knowledge: Citizens' and Artist's
Rights in the Digital Age, Free Culture Forum, Barcelona 2009-2011,
http://fcforum.net/
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Ethical Revolution
Major film studios, record labels, television and radio
broadcasters, and print publishers came to dominate our
cultural landscape because they have the funds and
infrastructure to mass-produce, package and distribute
authors’ creations [ . . . ] [b]ut digital technology radically
changes that equation by drastically reducing the cost of
production and distribution. [In the networked information
economy, innovation and creativity are becoming independent
from centralized company environments].
NETANEL, COPYRIGHT PARADOX, at 76.
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Open Access
if you are a member of the knowledge elite, then there is free
access, but for the rest of the world, not so much [ . . . ] publisher
restrictions do not achieve the objective of enlightenment, but
rather the reality of ‘elite-nment.’
Lawrence Lessig, The Architecture of Access to Scientific Knowledge: Just How
Badly we Have Messed This Up (speech delivered at CERN Colloquium and
Library Science Talk) (April 18, 2011)
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Ethical Revolution
Lawrence Lessig, The Architecture of Access
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Open Access
Budapest Open Access
February 14, 2002
Initiative,
Budapest, Hungary,
Berlin Conference, Berlin, October 20-22, 2003, Berlin
Declaration on Open Access to Knowledge in the Sciences
and Humanities (October 22, 2003)
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Open Access
[Open Knowledge Environments would] bring the scholarly
communication function back into the universities [through] the
development of interactive portals focused on knowledge
production and on collaborative research and educational
opportunities in specific thematic areas.
Paul F. Uhlir, Revolution and Evolution in Scientific Communication: Moving from
Restricted Dissemination of Publicly-Funded Knowledge to Open Knowledge
Environments, paper presented at the 2nd COMMUNIA Conference (June 28,
2010).
Jerome H. Reichman, Tom Dedeurwaerdere, and Paul F. Uhlir, Designing the
Microbial Research Commons: Strategies for Accessing, Managing, and Using
Essential Public Knowledge Assets (Cambridge U. Press, forthcoming 2012)
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III
Social
Revolution
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Social Revolution
[ . . . ] there was 5 exabytes of information created between the
dawn of civilization through 2003, but that much information is
now created every 2 days, and the pace is increasing . . . .”
Eric Schmidt, speech delivered at the Techonomy Conference, Lake
Tahoe, August 4-9, 2010
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Social Revolution
The audience has become an active participant in its
own culture.
Jay Rosen, The People Formerly Known as the Audience, PRESSTHINK,
June 27, 2006
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Social Revolution
[User-generated content:] “i) content made publicly
available over the Internet, ii) which reflects a certain
amount of creative effort, and iii) which is created
outside of professional routines and practices.”
Organization for Economic Co-operation and Development [OECD], Directorate
for Science, Technology and Industry, Committee for Information, Computer and
Communications Policy, Working Party on the Information Economy [WPIE],
Participative Web: User Created Content, DSTI/ICCP/IE(2006)7/FINAL, at 4 (April
12, 2007) (prepared by Sacha Wunsch-Vincent and Graham Vickery)
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Social Revolution
Rather famously the first Renaissance elevated the
Catholic mass into a congregation of Protestant readers.
Thanks to the printing press and the literacy movement
that followed, each person could enjoy his or her own
personal relationship to texts and the mythologies they
described. Our own renaissance offers us the opportunity
to enhance the dimensionality of these relationships even
further, as we transform from readers into writers.
DOUGLAS RUSHKOFF, OPEN SOURCE DEMOCRACY 47 (Demos
2003)
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Social Revolution
mass culture
Debora Halbert, Mass Culture and the Culture of the Masses: A Manifesto
for User-Generated Rights, 11 VAND. J. ENT. & TECH. L. 921, 934-953
(2009)
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Social Revolution
The cult of the amateur
ANDREW KEEN, THE CULT OF THE AMATEUR: HOW BLOGS,
MYSPACE, YOUTUBE AND THE REST OF TODAY'S USER-GENERATED
MEDIA ARE KILLING OUR CULTURE AND ECONOMY (Nicholas Brealey
Publishing 2008)
Nicholas Carr, The Ignorance of Crowds, STRATEGY+BUSINESS,
May 31, 2007
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Social Revolution
partecipatory culture
JENKINS HENRY, FANS, BLOGGERS AND GAMERS: ESSAYS ON PARTICIPATORY
CULTURE (New York University Press 2006);
Henry Jenkins, Xiaochang Li, Ana Krauskopf and Joshua Green, If It
Doesn't Spread, It's Dead (Convergence Culture Consortium White Paper,
2009)
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Social Revolution
convergence culture
HENRY JENKINS, CONVERGENCE CULTURE: WHERE OLD
COLLIDE (New York University Press 2008)
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AND
NEW MEDIA
53
Social Revolution
“long route” and “short route”
Marco Ricolfi, Individual and Collective Management of Copyright in a Digital
Environment, in COPYRIGHT LAW : A HANDBOOK OF CONTEMPORARY RESEARCH
(Torremans ed., Edward Elgar Publishing 2007)
Ricolfi, Copyright Policies, at 12;
Marco Ricolfi, Making Copyright Fit for the Digital Agenda, at 6 (2011)
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IV
Linguistic
Revolution
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Remix
[ . . . ] a media literate generation emerged, able to download
the world culture and transform it in something different and we
call our new language: remix.”
Rip: A Remix Manifesto, http://www.ripremix.com/;
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Remix
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Linguistic Revolution and Revolutionary Language Remix
linguistic revolution
and
revolutionary language
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Linguistic Revolution and Revolutionary Language
[sampling] marks a new way of seeing citational writing, one
that moves away from a sterile sort of obeisant prose to a
material appropriation of sources for one’s own personal mix,
weaving references in more boldly, taking them over, distorting
them, wringing new truth and meaning out of them, not
revering or enshrining them.
Geoffrey Sirc, Stagolee as Writing Instructor, 4 ENCULTURATION 2
(2002)
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Linguistic Revolution and Revolutionary Language Remix
re-sygnification
by
de-authorization
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Linguistic Revolution and Revolutionary Language
anti-propertarian remix culture
[Remix culture has emphasized the potential for reuse of public domain
material. Open networks, user-generated creativity, and remix culture have
made the public domain highly generative. The public domain, once regarded
as a] virtual wasteland of undeserving detritus [has become] a fertile paradise .
. . a commons.”
Pamela Samuelson, Mapping the Digital Public Domain: Threats and
Opportunities, 66 LAW & CONTEMP. PROB. 147, 147 (2003)
Bollier, The Commons as New Sector of Value Creation.
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Linguistic Revolution and Digital Creative Genres
the Internet didn’t make these other forms of ‘writing’ [ . . . ]
significant [ . . . ] [b]ut the Internet and digital technologies
opened these media to the masses
LESSIG, REMIX, at 69
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Fanfiction
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Fanfiction
[ . . . ] envisioning a future in which all fannish works are
recognized as legal and transformative, and accepted as
legitimate creative activity [ . . . ], while seeking to avoid the
homogenization or centralization of fandom.
Organization for Transformative Works,
http://transformativeworks.org/about/ believe
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What
We
Believe,
Salinger v. Colting, 607 F.3d 68 (2nd Cir. 2010)
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Warner Bros. v. RDR Books, 575 F.Supp.2d 513,
(S.D.N.Y. 2008)
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Shepard Fairey vs. The Associated Press (settled)
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Suntrust Bank v. Houghton Mifflin, 252 F. 3d 1165
(11th Cir. 2001)
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Sampling
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Mash-up
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Remix
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Vidding
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Trackjacking
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Modding
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Machinima
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Sampling, Mash-up and Remix
Grand Upright Music, Ltd. v. Warner Brothers
Records, 780 F. Supp. 182 (S.D.N.Y. 1991);
Bridgeport Music, Inc. v. Dimension Films, 410 F.3d
792 (6th Cir. 2005).
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Sampling, Mash-up and Remix
Public Enemy’s music was affected more than anybody’s because
we were taking thousands of sounds. [ . . . ] The sounds were all
collaged together to make a sonic wall. Public Enemy was affected
because it is too expensive to defend against a claim. So we had to
change our whole style, the style of It Takes a Nation and Fear of a
Black Planet, by 1991. [ . . . ] Putting a hundred small fragments into
a song meant that you had a hundred different people to answer to [ .
. . ] It’s easier to sample a groove than it is to create a whole new
collage. That entire collage element is out the window.
Kembrew McLeod, How Copyright Law Changed Hip-Hop: An Interview with
Public Enemy’s Chuck D and Hank Shocklee, in CUTTING ACROSS MEDIA:
APPROPRIATION ART, INTERVENTIONIST COLLAGE, AND COPYRIGHT LAW 152
(Kembrew McLeod and Rudolf Kuenzli eds., Duke U. Press 2011)
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Sampling, Mash-up and Remix
[After digital sampling was outlawed] [w]e were forced to start using
different organic instruments, but you can’t really get the right kind of
compression that way. A guitar sampled off a record is going to hit
differently than a guitar sampled in the studio. The guitar that’s
sampled off a record is going to have all the compression that they
put on the recording, the equalization. It’s going to hit the tape
harder. It’s going to slap at you. Something that’s organic is almost
going to have a powder effect. It hits more like a pillow than a piece
of wood. So those things change your mood, the feeling you can get
off of a record. If you notice that by the early 1990s, the sound has
gotten a lot softer.
Kembrew McLeod, How Copyright Law Changed Hip-Hop, at 155.
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Giancarlo F. Frosio
Sampling, Mash-up and Remix
George Bush doesn’t Care about Black People
by
the Legendary K.O.
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Giancarlo F. Frosio
Sampling, Mash-up and Remix
We need a cultural world where de-commodified
culture prevails and people are able to build
something creative on the foundation of what already
exists.
Halbert, Mass Culture and the Culture of the Masses, at 960.
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Giancarlo F. Frosio
Remix, Free Culture, and Permission Culture
“[W]e come from a tradition of “free culture” - not “free” as in “free
beer” (to borrow a phrase from the founder of the free-software
movement), but “free” as in “free speech,” “free markets,” “free
trade,” “free enterprise,” “free will,” and “free elections.” A free
culture supports and protects creators and innovators. It does this
directly by granting intellectual property rights. But it does so
indirectly by limiting the reach of those rights, to guarantee that
follow-on creators and innovators remain as free as possible from
the control of the past. […] The opposite of a free culture is a
“permission culture” - a culture in which creators get to create
only with the permission of the powerful, or of creators from the
past’”
LESSIG LAWRENCE, FREE CULTURE: THE NATURE AND FUTURE OF CREATIVITY xiv
(Bloomsbury Academic 2005)
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Giancarlo F. Frosio
The Road Ahead:
Reinventing Copyright in
the Digital Environment
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82
Close to Zero Marginal Cost
“the limited scope of the copyright holder’s statutory monopoly,
like the limited copyright duration required by the Constitution,
reflects a balance of competing claims upon the public interest:
Creative work is to be encouraged and rewarded, but private
motivation must ultimately serve the cause of promoting broad
public availability of literature, music, and the other arts. The
immediate effect of our copyright law is to secure a fair return for
an “author’s” creative labour. But the ultimate aim is, by this
incentive, to stimulate artistic creativity for the general public
good. ‘The sole interest of the United States and the primary
object in conferring the monopoly,’ this Court has said, ‘lie in the
general benefits derived by the public from the labours of
authors.’”
Fox Film Corp. v. Doral, 286 U.S. 123, 127 (1932)
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Giancarlo F. Frosio, (CC) by-nc-sa
Reinventing Copyright in the Digital Environment
“in the absence of the old containers, almost everything we
think we know about intellectual property is wrong”.
John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on the Global Net,
Wired 2.03 (1994)
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Giancarlo F. Frosio, (CC) by-nc-sa
Reinventing Copyright in the Digital Environment
“copyright law is totally out of date . . . it is a Gutenberg artifact
. . . since it is a reactive process, it will have to break down
completely before it is corrected.”
NICHOLAS NEGROPONTE, BEING DIGITAL 58 (Alfred A. Knopf 1995)
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Giancarlo F. Frosio, (CC) by-nc-sa
Reinventing Copyright in the Digital Environment
“in the digital world copying is such an essential action, so bound up
with the way computers work, that control of copying provides, in the
view of some, unexpectedly broad powers, considerably beyond
those intended by the copyright law.”
NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN
THE INFORMATION AGE 140 (National Academy Press, 2000).
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Giancarlo F. Frosio, (CC) by-nc-sa
Reinventing Copyright in the Digital Environment
“The social condition of global interconnection that we call the
Internet makes it possible for all of us to be creative in new
and previously undreamed-of ways. Unless we allow
‘ownership’ to interfere.”
Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, FIRST
MONDAY, August 2, 1999
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Giancarlo F. Frosio, (CC) by-nc-sa
Reinventing Copyright in the Digital Environment
“[j]ust as artists have always travelled, to join sponsors, avoid wars or learn from masters far
from home, now digital technology helps them to cross borders and break down barriers.
Their work can be available to all. In a sense, the internet is the realisation of the
Renaissance dream of Giovanni Pico della Mirandola: all knowledge in one place. Yet, it does
not mean there are no more obstacles to sharing cultural and artistic works on the net. All
revolutions reveal, in a new and less favourable light, the privileges of the gatekeepers of
the "Ancien Régime". It is no different in the case of the internet revolution, which is
unveiling the unsustainable position of certain content gatekeepers and intermediaries. No
historically entrenched position guarantees the survival of any cultural intermediary. Like it or
not, content gatekeepers risk being sidelined if they do not adapt to the needs of both
creators and consumers of cultural goods. […] Today our fragmented copyright system is
ill-adapted to the real essence of art, which has no frontiers. Instead, that system has ended
up giving a more prominent role to intermediaries than to artists. It irritates the public
who often cannot access what artists want to offer and leaves a vacuum which is served by
illegal content, depriving the artists of their well-deserved remuneration. And copyright
enforcement is often entangled in sensitive questions about privacy, data protection or even
net neutrality. […] It may suit some vested interests to avoid a debate, or to frame the
debate on copyright in moralistic terms that merely demonise millions of citizens. But
that is not a sustainable approach. […] My position is that we must look beyond national and
corporatist self-interest to establish a new approach to copyright.
Neelie Kroes, European Commission Vice-President for the Digital Agenda, A Digital World of Opportunities, speech delivered at the
Forum d'Avignon - Les Rencontres Internationales de la Culture, de l’Économie et des Medias, Avignon, France, SPEECH/10/619
(November 5, 2010)
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Giancarlo F. Frosio, (CC) by-nc-sa
Reinventing Copyright in the Digital Environment
“Think of the treasures that are kept from the public
because we can’t identify the right-holders of certain
works of art. These "orphan works" are stuck in the digital
darkness when they could be on digital display for future
generations. It is time for this dysfunction to end.”
Nellie Kroes, Ending Fragmentation of the Digital Single Market, speech delivered
at the Business for New Europe event, London, SPEECH/11/70 (February 7,
2010)
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Giancarlo F. Frosio, (CC) by-nc-sa
Reinventing Copyright in the Digital Environment
“[the] fundamental impulse that sets and keeps the capitalist
engine in motion is the process of creative destruction which
incessantly revolutionizes the economic structure by
incessantly destroying the old one, incessantly creating a new
one”
JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM
1976)
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AND
DEMOCRACY 83 (Harper Perennial Ed.
Giancarlo F. Frosio, (CC) by-nc-sa
Reinventing Copyright in the Digital Environment
“. . . our intelligence tends to produce technological and social
change at a rate faster than our institutions and emotions can
cope with . . . we therefore find ourselves continually trying to
accommodate new realities within inappropriate existing
institutions, and trying to think about those new realities in
traditional but sometimes dangerously irrelevant terms . . . .”
GWYNNE DYER, WAR: THE LETHAL CUSTOM 253 (Crown 1985)
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Giancarlo F. Frosio, (CC) by-nc-sa
Reinventing Copyright in the Digital Environment
“The social and technological basis of creation has been radically
transformed. The time has come for us to finally become aware that
in our post-post-industrial age, the long route which used to lead the
work from its creator to the public by passing through different
categories of businesses is gradually being replaced by a short
route, which puts in direct contact creators and the public.”
Marco Ricolfi, Copyright Policies for Digital Libraries in the Context of the i2010 Strategy,
paper presented at the 1st COMMUNIA Conference (July 1, 2008), at 12
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Giancarlo F. Frosio, (CC) by-nc-sa
Creative Commons
 Contractually Re-constructed Commons
 All Rights Reserved vs. Some Rights Reserved
 4 Major Conditions




Attribution (BY)
Share Alike (SA)
Non Commercial (NC)
No Derivatives (ND)
 Several Licences






Attribution (CC-BY)
Attribution Share Alike (CC-BY-SA)
Attribution No Derivatives (CC-BY-ND)
Attribution Non-Commercial (CC-BY-NC)
Attribution Non-Commercial Share Alike (CC-BY-NC-SA)
Attribution Non-Commercial No Derivatives (CC-BY-NC-ND)
 CC0 – No Rights Reserved and Public Domain Mark
 LicencePorted and Unported Licences (52 jurisdictions)
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93
Alternative Compensation Systems
 Transforming copyright from a proprietary right to a
compensation right
 Alternative Compensation System (Fisher Proposal)
 Authors compensated though taxes over media devices and
internet connection
 Creation of a Copyright Registrar for Digital Content
 Digital works to be registered with the Registrar
 Digital works to be embedded with digital watermark
 Distribution of the proceeds according to popularity of the
works
 Cultural Flat Rate
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Giancarlo F. Frosio, (CC) by-nc-sa
94
Alternative Compensation Systems
 Noncommercial Use Levy (NUL) (Professor
Netanel)
 Such levy would be imposed on the sale of any consumer
electronic devices used to copy, store, send or perform
shared and downloaded files
 the amount being determined by an ad hoc Copyright
Office court
 paid by the providers of this products and services
 distribution of the proceeds to copyright holders carried out
taking into consideration the popularity of the works
 the actual use of the contents as measured by technology
tracking and monitoring such use
 Users could freely copy and circulate any works that the
right holder has made available on the Internet
 Non-commercial use of the works
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95
Alternative Compensation Systems
 Extended Collective Licences
 Alternative Business Models based on Gift
Economy and Sharing of Digital Content
 Crowdsourcing and Kickstarter
 Regime of government compensation
 Paid out of general tax revenues
 Subsequent freedom to share and copy copyrighted material
available on line
 Right holders would be paid from a body funded by general tax
revenues rather than by levies imposed on certain products and
services
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Giancarlo F. Frosio, (CC) by-nc-sa
96
Alternative Compensation Systems
 Compulsory Licensing Schemes
 Compulsory license to authorize and regulate the distribution of
copyright protected works on the Internet;
 Granted by governments, or governmental bodies
 Oblige IPRs owners to license the protected asset to third parties
willing to use it
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97