Transcript Document

Digital Copyright
Peer Production, User-Generated Content,
Access, Enclosure and the Public Domain
The Internet, Digitization and the Digital Dilemma
“. . . information wants to be free, because it has become so
cheap to distribute, copy, and recombine - too cheap to
meter. It wants to be expensive because it can be
immeasurably valuable to the recipient. That tension will not
go away . . . .”
Stuart Brand (founder of Electronic Frontier Foundation), THE MEDIA LAB: INVENTING
FUTURE AT MIT 86 (Penguin Books 1986)
21/07/2015
Giancarlo F. Frosio
THE
The Internet, Digitization and the Digital Dilemma
“The digital dilemma”
NATIONAL RESEARCH BOARD, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY
INFORMATION AGE (National Academy Press, 2000)
21/07/2015
Giancarlo F. Frosio
IN
THE
The Internet, Digitization and the Digital Dilemma
“earlier generations of technology . . . have presented
challenges to existing copyright law, but none have posed
the same threat as the digital age . . . .”
John V. Pavlic, New Media Technology, 1996. John V. Pavlic is executive director of the
Columbia University Center for New Media.
21/07/2015
Giancarlo F. Frosio
The Internet, Digitization and the Digital Dilemma
“notions of security and control that may have been
exercisable in the non-networked, analog world cannot be
effectively transferred to a realm where even a single digital
copy can propagate millions of perfect clones, world-wide,
almost instantaneously, and where control over the quantity
and destiny of the bits that comprise digital media will be
imperfect at best.”
Philip S. Corwin, legal counsel for Sharman Networks, owner of KaZaa peer-to-peer
software, in a letter to Senator Joseph R. Biden, Jr., February 26, 2002
21/07/2015
Giancarlo F. Frosio
The Public Domain
“The public domain
uncharted terrain.”
has been, for
the most part, an
Pamela Samuelson, Mapping the Digital Public Domain: Threats and Opportunities, 66
LAW & CONTEMP. PROB. 147, 147-148 (2003)
21/07/2015
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“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)
21/07/2015
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“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)
21/07/2015
Giancarlo F. Frosio
THE
Commodification, Enclosure and Cultural Diversity
“[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 socalled '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)
21/07/2015
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“[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)
21/07/2015
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“the tragedy of the commons”
Hardin Garrett, The Tragedy of the Commons, 162 SCIENCE 1243 (1968)
21/07/2015
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“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)
21/07/2015
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“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)
21/07/2015
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“Through a relatively swift transformation in the basic elements of
the network, the network is increasingly recognizing a permissions
layer, layered onto the original Internet. This permissions layer will
enforce the permission the law establishes by default. It will
require, in a physical sense, the permission that the law now
requires by rule. This will be the consequence of the set of
technologies ordinarily referred to as "DRM“ – digital rights
management technologies. DRM technologies enable fine-grained
control over how content is used in a digital environment. They
control whether the content can be copied, or how often; they
control how long the content survives; they control whom the
content can be shared with, or whether it can be altered or
transformed. DRM thus uses technology to enforce control of
content, independent of whether the law authorizes that control.”
Lessig, Lawrence, Re-crafting a Public Domain, 18 YALE J. L. & HUMAN. 56, 62 (2006).
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“the public domain represents our free speech concerns within the
realm of copyright law.”
Michael D. Birnhack, More or Better? Shaping the Public Domain, in THE FUTURE OF THE
PUBLIC DOMAIN: IDENTIFYING THE COMMONS IN INFORMATION LAW 62 (Lucie Guibault and
P. Brent Hugenholtz eds., Kluwer Law International 2006)
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“[f]ocusing on the duty side of intellectual property clarifies that we
are free to communicate at a given moment only to the extent we
communicate using information that is in the public domain, we
own, or we have permission to use for the proposed
communication. An increase in the amount of material one
person owns decreases the communicative components
freely available to all others. Obtaining permission to use
already assumes a prior state of unfreedom, lifted at the discretion
of a person with authority over our proposed use. Only an
increase in the public domain--an increase in the range of uses
presumptively privileged to all--generally increases the freedom of
a society's constituents to communicate.”
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, 393 (1999)
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“[i]t is choosing to increase the costs of academic scholars, whose
libraries must decide whether to buy more publications or more
access rights to a smaller number of publications, to increase
Reed Elsevier's returns. It is choosing to increase the costs of
amateurs—like children who would put together web-based
projects about their favorite cartoon characters—in order to
increase the returns to Disney. It is choosing to raise the
economic barriers facing participants in the Free Republic forum
in order to increase the returns to the Washington Post.”
Yochai Benkler, A Political Economy of the Public Domain: Markets in Information Goods
vs. The Marketplace of Ideas, in EXPANDING THE BOUNDARIES OF INTELLECTUAL PROPERTY:
INNOVATION POLICY FOR THE KNOWLEDGE SOCIETY 273-74 (Rochelle Dreyfuss, Diane L
Zimmerman, and Harry First eds., Oxford University Press 2001)
21/07/2015
Giancarlo F. Frosio
Commodification, Enclosure and Cultural Diversity
“In a digital environment where distribution costs are very
small, the primary costs of engaging in amateur production
are opportunity costs of time not spent on a profitable
project and information input costs. Increased property
rights create entry barriers, in the form of information input
costs, that replicate for amateur producers the high costs of
distribution in the print and paper environment. Enclosure
therefore has the effect of silencing nonprofessional
information producers.”
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, 410 (1999)
Giancarlo F. Frosio
The Public Domain as the Very Goal of Copyright Law?
“[i]f nature has made any one thing less susceptible than all
others of exclusive property, it is the action of the thinking
power called an idea.... He who receives an idea from me,
receives instruction himself without lessening mine; as he who
lights his taper at mine, receives light without darkening me.”
Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in THE WRITINGS OF
THOMAS JEFFERSON (Albert Ellery Bergh ed., The Thomas Jefferson Memorial Association of
the United States 1907).
21/07/2015
Giancarlo Frosio, LL.M. - www.it-law.it
The Public Domain as the Very Goal of Copyright Law?
"[i]n a word, I have no difficulty to maintain that a perpetual
monopoly of books would prove more destructive to learning,
and even to authors, than a second irruption of Goths and
Vandals."
Hinton v Donaldson, Mor 8307 (1773) (Lord Kames)
21/07/2015
Giancarlo Frosio, LL.M. - www.it-law.it
The Public Domain as the Very Goal of Copyright Law?
“science and learning are in their nature publici juris, and they
ought to be as free and general as air or water.”
Donaldson v. Beckett, 2 Brown's Parl. Cases 129, 1 Eng. Rep. 837; 4 Burr. 2408, 98 Eng. Rep.
257 (1774) (Lord Cadmen)
21/07/2015
Giancarlo Frosio, LL.M. - www.it-law.it
The Public Domain as the Very Goal of Copyright Law?
“Copyright is monopoly, and produces all the effects which the
general voice of mankind attributes to monopoly. [ . . .] It is good that
authors should be remunerated; and the least exceptionable way of
remunerating them is by a monopoly. Yet monopoly is an evil. For the
sake of the good we must submit to the evil; but the evil ought not to
last a day longer than is necessary for the purpose of securing the
good.”
Thomas B. Macaulay, A Speech Delivered in the House of Commons (Feb. 5, 1841), in VIII
THE LIFE AND WORKS OF LORD MACAULAY 201 (Longmans, Green, and Co. 1897)
21/07/2015
Giancarlo F. Frosio
The Public Domain as the Very Goal of Copyright Law?
“The most sacred, the most legitimate, the most indisputable,
and […] the most personal of all properties is the work which is
the fruit of a writer’s thought [ . . . ] [b]ut it is a property of a
different kind from all the other properties. [Once the author has
disclosed the work to the public] the writer has affiliated the
public with his property, or rather has fully transmitted his
property to the public. However, because it is extremely just
that men who cultivate the domain of ideas be able to draw
some fruits of their labors, it is necessary that, during their
whole lives and some years after their deaths, no one may,
without their consent, dispose of the product of their genius.”
Archives parlementaires (Assemblée nationale), January 13, 1791, at 210 (report of Le
Chapelier)
21/07/2015
Giancarlo F. Frosio
The Public Domain as the Very Goal of Copyright Law?
“the public domain is not an unintended by product, or
‘graveyard’ of copyrighted works but its very goal.”
Michael D. Birnhack, More or Better? Shaping the Public Domain, in THE FUTURE OF THE
PUBLIC DOMAIN: IDENTIFYING THE COMMONS IN INFORMATION LAW 60 (Lucie Guibault and P.
Brent Hugenholtz eds., Kluwer Law International 2006)
21/07/2015
Giancarlo F. Frosio
The Public Domain as the Very Goal of Copyright Law?
“In short, the public domain would be a place like home,
where, when you go there, they have to take you in and let
you dance.”
David Lange, Reimagining The Public Domain, 66 LAW & CONTEMP. PROBS. 463, 470
(2003)
21/07/2015
Giancarlo F. Frosio
The Public Domain
“Whether the public domain is a virtual wasteland of
undeserving detritus or the font of all new creation is
the subject of some debate. Those who adhere to the
former perspective do not worry about "threats" to this
domain any more than they would worry about scavengers
who go to garbage dumps to look for abandoned
property.”
Pamela Samuelson, Mapping the Digital Public Domain: Threats and Opportunities, 66
LAW & CONTEMP. PROB. 147, 147 (2003)
21/07/2015
Giancarlo F. Frosio
The Public Domain
“recognition of new intellectual property interests should be
offset today by equally deliberate recognition of individual
rights in the public domain.”
“ . . . sanctuary conferring affirmative protection against the
forces of private appropriation . . . .”
David Lange, Recognizing The Public Domain, 44 LAW & CONTEMP. PROBS. 147 (1981)
21/07/2015
Giancarlo F. Frosio
The Public Domain
“[t]he public domain will change its shape according to the
hopes it embodies, the fears it tries to lay to rest, and the
implicit vision of creativity on which it rests. There is not
one public domain, but many.”
James Boyle, The Second Enclosure Movement and the Construction of the Public
Domain, 66 LAW & CONTEMP. PROB. 33, 52 and 62 (2003)
21/07/2015
Giancarlo F. Frosio
The Public Domain
“the place we quarry the building blocks of our culture”
BOYLE, JAMES, THE PUBLIC DOMAIN: ENCLOSING
University Press 2009)
21/07/2015
THE
Giancarlo F. Frosio
COMMONS
OF THE
MIND 40 (Yale
The Public Domain
“[t]he old dividing line in the literature on the public domain
had been between the realm of property and the realm of
the free. The new dividing line, drawn as a palimpsest on
the old, is between the realm of individual control and the
realm of distributed creation, management, and enterprise.”
James Boyle, The Second Enclosure Movement and the Construction of the Public
Domain, 66 LAW & CONTEMP. PROB. 33, 66 (2003)
21/07/2015
Giancarlo F. Frosio
The Public Domain
“ . . . like the environment the public domain must be ‘invented’
before it can be saved.”
James Boyle, A Politics of Intellectual Property: Environmentalism for the Net?, 47 DUKE
L. J. 87, 110 (1997)
21/07/2015
Giancarlo F. Frosio
The Public Domain
“Consider the preservation of the public domain within WIPO’s
normative processes and deepen the analysis of the implications
and benefits of a rich and accessible public domain.”
Development Agenda for WIPO, Recommendation 16
“To promote norm-setting activities related to IP that support a
robust public domain in WIPO’s Member States, including the
possibility of preparing guidelines which could assist interested
Member States in identifying subject matters that have fallen into
the public domain within their respective jurisdictions.”
Development Agenda for WIPO, Recommendation 20
21/07/2015
Giancarlo F. Frosio
The Internet, Digitization and the Digital Dilemma
“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)
21/07/2015
Giancarlo F. Frosio
The Wealth of Networks: Digitization and Peer Production
“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)
21/07/2015
Giancarlo F. Frosio
The Wealth of Networks: Digitization and 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)
21/07/2015
Giancarlo F. Frosio
Open Access, Free Culture, UGC and Remix
“[W]e come from a tradition of “free culture” - not “free” as in
“free beer” (to borrow a phrase from the founder of the freesoftware 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)
21/07/2015
Giancarlo F. Frosio
Open Access, Free Culture, UGC and Remix
Rip: A Remix Manifesto, http://ripremix.com/
21/07/2015
Giancarlo F. Frosio
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
OWN (New Press 2009)
21/07/2015
THE
COMMONERS BUILT
Giancarlo F. Frosio
A
DIGITAL REPUBLIC
OF
THEIR
Open Access, Free Culture, UGC and Remix
“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, Barcelona Free Culture Forum, http://fcforum.net/
21/07/2015
Giancarlo F. Frosio
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)
21/07/2015
Giancarlo F. Frosio
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)
21/07/2015
Giancarlo F. Frosio
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)
21/07/2015
Giancarlo F. Frosio
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).
21/07/2015
Giancarlo F. Frosio
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
21/07/2015
Giancarlo F. Frosio
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)
21/07/2015
Giancarlo F. Frosio
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)
21/07/2015
Giancarlo F. Frosio
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)
21/07/2015
AND
DEMOCRACY 83 (Harper Perennial Ed.
Giancarlo F. Frosio
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)
21/07/2015
Giancarlo F. Frosio
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
21/07/2015
Giancarlo F. Frosio
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)
21/07/2015
Giancarlo F. Frosio, (CC) by-nc-sa
50
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
21/07/2015
Giancarlo F. Frosio, (CC) by-nc-sa
51
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
21/07/2015
Giancarlo F. Frosio, (CC) by-nc-sa
52
Alternative Compensation Systems
 Extended Collective Licences
 Alternative Business Models based on Gift
Economy and Sharing of Digital Content
 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
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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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Giancarlo F. Frosio, (CC) by-nc-sa
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“[w]hat am I then? Everything that I have seen, heard, and
observed I have collected and exploited. My works have
been nourished by countless different individuals, by
innocent and wise ones, people of intelligence and dunces.
Childhood, maturity, and old age all have brought me their
thoughts, their perspectives on life. I have often reaped
what others have sowed. My work is the work of a
collective being that bears the name of Goethe.”
Johann Wolfgang von Goethe, cited in Martha Woodmansee and Peter Jaszi, The Law
of Text: Copyright in the Academy, 57 COLLEGE ENGLISH 769, 769 (1995)
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Giancarlo F. Frosio