In the Internet era, copyright law has gained enormous relevance. As we know, the concept of copying has changed dramatically. In traditional formats it was harder to make copies out of an original, and these were generally of lower quality (Consider copying a vinyl into cassettes, or a book into photocopies). In digital formats, copies are made sometimes to unconsciously (such as automatic backups of files), and a copy has the same quality as the original. Therefore, all digital copies are legally considered as originals.
The most important legal source of Copyright dates back to the Bern Convention of 1886, and revised in 1979. This Convention has been ratified by 166 countries, setting the legal basis for copyright laws in those. The Bern Convention’s sets important legal issues such as moral rights (rights of attribution and transformation of the work), economic rights (copyright, right of public communication, translation rights, the right to distribute modified versions …) terms of protection, exceptions to copyright (or fair uses), among many others.
We can say that by default, everything is prohibited, and permission must be given by the author of the work, excepting fair uses. However, the author could decide to regulate their economical rights through a license. Therefore, the license of the author, is the legal instrument by which the author manages its economical rights, and permissions.
In theory, copyright law is wonderful for the creators, but in practice everything has been distorted, and in the internet era, this fact has become more evident. The World Wide Web was born in 1989, so we can deduce that the Berne Convention is part of the pre-internet era. Here I present some of the underlying problems founded on copyright laws:
1. They prevent free distribution on the internet. The author must sign a permission with all Internet websites (such as standard YouTube license) to distribute his works.
2. Artistic works and software are different. By most copyright laws, software is still protected as “literary work”, but the nature and scope of development are different. This is a historical error that has caused serious problems for interpretation and adaptation. Of course in 1886 there was no software.
3. Monopolistic practices have distorted the goals of copyright law. It is no secret that in practice, copyright benefits the industry more than the artist. Example: An independent musician has no access to radio or TV, so he does not receive royalties, as there is no media pluralism in our contemporary society. Most times, radios and media request money to artists in order to promote them.
4. Lack of transparency and abuse of copyright collective societies. Often royalties do not reach the composer because of the lack of transparency. Other times collective societies charge fees to independent artists by default, even if those works are not included in the collective society’s records.
Considering that most independent artists organize their own events, it is unfair and illegal that they cannot collect royalties directly, without passing through a collective society.
FREE SOFTWARE BROKE THIS SCHEME
To understand how free culture has emerged, we must necessarily refer to free software.
On the software industry, similar monopolistic practices of the entertainment industries, were made by corporations, proprietary software, which proposed a model of privatization of knowledge, preventing open technological development, which generated inequality between the rich and the poor. To understand it better, consider that until recent times, users were not allowed to buy a computer without the Windows operating system installed by default. Users also used to pay such license by default. Also consider that Windows does not allowed had no way of knowing what was violated installing , after Windows does not allow access to its source code.
Free software broke this abuse of copyright law. Free software was born in the 80s, with the help of Richard Stallman and the GNU project. The free software philosophy is based on “Free as freedom, and not free as free beer”. The freedoms of free software are:
(0) Freedom to run the program for any purpose.
(1) Freedom to study the source code and make modified versions.
(2) Freedom to redistribute copies of the program.
(3) Freedom to distribute your modified versions of the program.
An optional mechanism to protect these freedoms is the copyleft. Copyleft is a general method for making a program “free”, and requiring all modified and extended versions are also being “free”.
This was the departure point for Generic purpose public licenses. The first public open source license was The EMACS public license released in 1988, which was the predecessor of the “well known” GNU general public license (GPL) released in 1989. Then came the GPL v2 license in 1991, and the GPL v3 in 2007. the GPL is still the most popular free software license, and software of great importance, such as the Linux kernel, WordPress, MySQL, or Tor, is licensed under the GPL terms.
Today, there are many generic purpose public licenses, which follow the free software philosophy, or other initiatives that emerged later, such as the Open Source Initiative (focused on software development), or the Copyfree initiative (“Free as free beer”, another definition of freedom).
Many software companies are using the FOSS model (Free and Open Source Software). If you still do not believe, think that very successful projects such as the Google Android operating system (the Apache v2 license), or the social network Twitter (the MIT license), are using free software licenses.
The FOSS model became self-sustaining. In this new economic model, most enterprises are not financing their projects in royalties, but in services (such as Red hat enterprise model). Since free software does not prohibit profit, other FOSS developers are founding their projects by selling derived and enhanced versions. Others have managed to make their self-sustaining model through donations.
So, Is it possible to create similar self-sustaining economical models in culture?
INCONSISTENCIES IN THE DEFINITION OF THE FREE CULTURE
The philosophy of free culture comes from “Free as Free speech”. Many people are confusing free culture with Creative Commons. This confusion is a serious mistake, because free culture is a philosophy about sharing culture based on certain freedoms, while Creative commons are legal tools (generic purpose licenses) with the purpose of helping artists to manage their rights. In fact, only 2 of 6 Creative Commons licenses qualify as free-culture licenses (CC by, or CC by SA).
Free culture was born from an adaptation of the 4 free software freedoms.
“Free culture freedoms” are:
– Freedom to use the work and enjoy the benefits of using it.
– Freedom to study the work and to apply knowledge acquired from it.
– Freedom to make and redistribute copies, in whole or in part, of the information or expression.
– Freedom to make changes and improvements, and to distribute derivative works.
The big mistake about this adaptation is not taking into account that software and culture have different environments. But even culture can be divided into educational and scientific oriented works such as tutorials and information, and purely artistic works such as music or films. Free culture freedoms might work great for knowledge oriented platforms such as Wikipedia, but not for most musicians or film makers.
This difference is detailed in the telekommunist manifesto by Dmitry Kleiner, who distinguishes clearly the software(as a capital oriented good) and culture (as consumer oriented good). Richard Stallman himself has repeatedly held that the artistic works do not have to be free, because they are not oriented to produce capital. This is the main difference from artistic works, and Software, writing supplies, or 3D models for printers.
The main element that supports the free software freedoms is the transmission of the source code(knowledge). With no source code in the artwork, it is necessary to re-think the free culture freedoms.
Comparing the free culture freedoms, with the free software freedoms, we find some inconsistencies:
– Freedom to use the work and enjoy the benefits of using it. This freedom has been thought for the benefit of the end user. This means that you can use someone else’s logo on your Website, or someone else’s song as soundtrack in your video. The unfair part is for the artist, because as he gives his economic rights to everybody, fair and unfair uses of his song(if musician) are allowed. Thus, It can be used in a Monsanto video, and his name will have to be there (right of attribution of the composer).
– Freedom to study the work and to apply knowledge acquired from it. In artistic works there is not source code, unless you think that a score, or the patches of a program can be the equivalent. What would be the source code? Perhaps the final work as a recording? As a musician, I can certify that if we want to study composers such as Stockhausen, or Bach, the scores of the works are necessary. The scores are the “KNOW HOW” of their music. So this freedom is misconceived, because there is not obligation to pass the knowledge, just the final work.
– Freedom to make and redistribute copies, in whole or in part, of the information or expression. It is the only well adapted free culture freedom, because it solves the issue of Internet distribution. This could Benefit users and creators. Perhaps this freedom should be the only one.
– Freedom to make changes and improvements, and to distribute derivative works. This freedom is also ambiguous in the cultural environment. E.g. It benefits the end user because he could get some photos and use them to transform his video. But on the other hand, it can seriously harm the creator. Suppose a musician composes a song, but a religious sect uses the song, change the lyrics and distributes it on TV and radio to get followers. That would be unfair.
In my opinion, the main problems of free culture appear when we confront the freedom to use, and the freedom to create and distribute derivative versions, with the real world. In the software (capital good) this problem is not relevant, as the same software can be used by non-commercial users, advertisers, or religious sects, without compromising the image of the software developer. Instead, the artistic works (consumer goods) are much closer to the artist, and the absence of a limit on certain uses may seriously compromise their image.
In conclusion, we must re-think free culture freedoms, and adjust them to the real world. The free culture freedoms are poorly defined, and this does not benefit free culture. The initiative of free culture should be based on the differences between the world of software, and the world of culture, and the differences between education oriented works, and artistic oriented works. Let’s not replicate the same mistakes of the Bern Convention.