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2010-12-11

OPEN LETTER TO THE PRESIDENT OF THE BRAZILIAN SENATE, SENATOR JOSÉ SARNEY.

CC: Senator Lindbergh Farias, Senator Randolfe Rodrigues, Congressmember Jandira Feghali, Congressmember Alessandro Molo

REF: CPI DO ECAD AND THE REFORM OF THE BRAZILIAN COPYRIGHT LAW

Dear Senator José Sarney,

We met in 2003, when we opened together the seminar "O Software Livre e o Desenvolvimento do Brasil" (Free Software and the Development of Brazil) that took place at the Brazilian Congress. I am writing to you because Brazil's debate over copyright law has created a special opportunity.

The Parliamentary Inquiry Commission to investigate the collecting societies ("CPI do ECAD") has found corruption in the copyright collecting societies in Brazil. More importantly, it has found the copyright collecting system in Brazil is dysfunctional: it lacks transparency, efficiency, and good governance.

Brazil is now poised to reform this system. The CPI do ECAD has proposed legislation to require collecting societies to be transparent and efficient, and to use the possibilities of the Internet age to improve their services to their stakeholders and society in general.

How can the copyright collection system benefit society in general? I would like to suggest taking this opportunity to go even further: to legalize the sharing of published works, in exchange for a fixed levy collected from Internet users over time.

When I say "sharing", I specifically mean the noncommercial redistribution of exact copies of published works--for instance, through peer-to-peer networks. The crucial case is the one where those who are sharing receive no income from doing so; borderline cases such as the Pirate Bay (which receives money from advertising) need not be included.

To recognize the usefulness to society of Internet file sharing among the citizens will be a great advance, but that plan raises a second question: how to use the funds collected? If used properly, they can provide a second great advance -- in support for the arts.

Publishers typically propose to use money to "compensate" the "rights holders" -- two bad ideas together. "Rights holders" is a disguised way of directing the money mainly to publishers, with only trickle-down for the artists. As for "compensate", that concept is inappropriate, because it means to pay someone for doing a job, or to make up for taking something away from him. Neither of those descriptions applies to the practice of file sharing, since listeners and viewers have not hired publishers or artists to do a job, and sharing more copies does not take anything from them. (When they claim to have "lost" money, it is by comparison with their dreams of what they could have got.) Publishers use the term "compensate" to frame the issue in their favor.

There is no ethical reason to "compensate" anyone for citizens' file sharing, but supporting artists is useful for the arts and for society. Thus, the best way to implement a sharing license fee system is to design it to distribute the money so as to support the arts efficiently. With this system in place, artists will benefit further when people share their work and will encourage sharing.

What is the efficient way to support the arts with these funds?

First of all, if the goal is to support artists, don't give the funds to publishing companies instead. Supporting the publishers does little to support artists. For instance, record companies pay most musicians little or nothing of the money that comes in from sale of records: the musicians' record contracts are cunningly arranged so that musicians do not start to receive "their" share of record sales until a record sells a tremendous number of copies. If file sharing levy funds were distributed to record companies, they would not reach the musicians. Book contracts are not quite as outrageous, but even authors of best-sellers may get little. What society needs is to support these artists and authors better, not to support the publishers better.

I propose therefore to distribute the funds solely to the creative participants, and ensure in the law that publishers cannot claim it back from them or deduct it from money otherwise owed them.

The levy would be collected initially by the user's Internet Service Provider. How should it travel to the artist? It might pass through the hands of a state agency; it might even pass through a collecting society, provided that collective societies are reformed so that any group of artists can start their own.

Artists must not be compelled to work through the existing collecting societies, because these may have antisocial rules. For instance, the collecting societies of some European countries forbid their members to publish anything under licenses that permit sharing (for instance, they forbid using any of the Creative Commons licenses). If Brazil's fund for supporting artists includes foreign artists, they must not be compelled to join those collecting societies in order to receive their shares of Brazilian funds.

Whatever chain the money follows, none of the institutions in the chain (ISP, state agency, or collecting society) may have any authority to alter what share goes to each artist. That should be firmly set by the rules of the system.

But what should those rules be? What is the best way to apportion the money among all the creative participants?

The most obvious method is to compute each artist's share in direct proportion to her work's popularity. (Popularity can be measured by inviting 100,000 randomly chosen people to provide the lists of the works they have played, or by measuring peer-to-peer file-sharing.) That's what "compensate the rights holders" proposals typically do.

But that method of distribution is not very effective for promoting the arts, because a large fraction of the funds would go to the few superstars, who are already rich or at least comfortable, leaving little money to support all the artists who really need more.

I propose instead to pay each artist according to the cube root of his or her popularity. More precisely, the system could ascertain the popularity of each work, divide that among the work's artists to get a figure for each artist, then compute the cube root of that figure, and set the artist's share in proportion to that cube root.

The effect of the cube root stage would be to increase the shares of moderately popular artists by reducing the shares of superstars. Each individual superstar would still get more than an individual non-superstar, even several times as much, but not hundreds or thousands of times as much. Shifting the funds towards moderately popular artists means that a given total sum will adequately support a larger number of artists. Furthermore, the money will do more good for the arts because it will go to the artists who really need it.

Promoting art and authorship by supporting artists and authors is the proper goal of a sharing license fee because it is the proper goal of copyright itself.

A final question is whether the system should support foreign authors and artists. It would seem fair for Brazil to demand reciprocity from other countries as a condition of giving support to their authors and artists, but I think that would be a strategic mistake. The best way to convince other countries to adopt a plan like this is not by pressuring them through their artists--who won't feel the lack of these payments because they are not accustomed to receiving any--but rather by educating their artists about the merits of this system. Including them in the system is the way to educate them.

Another option is to include foreign artists and authors but cut the payment down to 1/10 when their coutries do not join in reciprocal cooperation. Imagine telling an author, "You have received $50 from Brazil's sharing license levy. If your country had a similar sharing license levy and made a reciprocal agreement with Brazil, you would have received $500 from Brazil just now, plus the amount from your own country." These authors and artists would start to advocate the system in their own country, plus reciprocity with Brazil.

I know of one possible impediment to adopting this system: Free Exploitation Treaties such as the one which established the World Trade Organization. These are designed to make governments act for the benefit of business rather than the people; they are the enemies of democracy and of most people's well-being. (We thank Lula for saving South America from ALCA.) Some of them demand "compensation for rights holders" as part of their general policy of favoritism for business.

Fortunately this impediment is not unsurmountable. If Brazil finds itself compelled to pay for the misguided goal of "compensating rights holders", it can still adopt the system presented above _in addition_.

The first step towards ending an unjust dominion is to deny its legitimacy. If Brazil is compelled to "compensate rights holders", it should denounce that imposition as wrong, and yield to it only until it can be abolished. The denunciation could be stated in the preamble of the law itself, like this:

Whereas Brazil wishes to encourage the useful and helpful practice of sharing published works on the Internet. Whereas Brazil is compelled by the World Trade Organization to ransom this freedom from the rights holders, even though that money will mainly enrich publishers rather than supporting artists and authors. Whereas Brazil is not yet ready to break with the World Trade organization and not currently in a position to replace it with a just system. Whereas Brazil wishes, aside from that imposed requirement, to support artists and authors better than the existing copyright system does.

The wasteful, misdirected plan for "compensation" need not exclude the useful, efficient plan to support the arts well. Thus, implement the plan suggested above to support artists directly, for the good of society, and implement in parallel the "compensation" required by the WTO--but only so long as the WTO retains the power to impose it. The law could even say that the "compensation" system will be discontinued when no treaty requires it.

This will begin the transition to a new copyright system that suits the Internet age.

Thank you for considering these suggestions.

Copyright (c) 2012 Richard Stallman Verbatim copying and redistribution of this entire page are permitted provided this notice is preserved.