Este documento es el borrador de una propuesta colaborativa de la sociedad civil para la reforma de los derechos de autor y las medidas para garantizar el desarrollo sostenible de la cultura en el siglo XXI que acompaña. Fue redactada durante el Free Culture Forum 2012 que organiza Xnet en Barcelona, es ahora más vigente que nunca, y parte de estas propuestas:

El material generado por el propio FCForum 2009 y 2010:
– Carta para la Innovación la Creatividad y el Acceso al Conocimiento
– Modelos Sostenibles para la Creatividad en la Era Digital
Elementos para la reforma de la Propiedad Intelectual y políticas relacionadas con la cultura.

Las recomendaciones de Communia y el Manifesto de Dominio Público
Las propuestas preaparadas por el Centrum Cyfrowe y el Modern Poland Foundation

Gracias a Amelia Andersdotter, Jeremy Malcolm y a Joe McNamee (EDRi) por las contribuciones y comentarios.

	FCForum	La Quadrature Du Net	Communia	Centrum Cyfrowe & Modern Poland Foundation
		COPYRIGHT
Reduction of copyright term	YES: “The copyright term should not exceed the minimum term set forth in the Berne Convention. We already consider the minimum Berne term unfair; in the longer term we defend shortening it.”	YES: “This registration would be valid for a reconducible limited period (a few years). This proposals […] requires a modification to the Bern convention”	YES: “…the term of copyright protection for new works (that is works created after the term reduction) should be reduced.”	YES: “Poland should advocate the need to radically reverse this tendency and shorten the effective period of exclusive rights.”
No extension of copyright protection for performers and sound recordings			YES
Compulsory registration of works to get copyright protection		YES: “This registration would be valid for a reconducible limited period (a few years)” -Copyright 2.0 (CC-NC or CC-NC-SA by default)“Limited duration registration and copyright 2.0 can be combined”	YES: “Article 7: Obligations concerning rights-management information (…) 2. (…) (new second §) To facilitate the management of rights, the provision of rights management information shall be mandatory. A publicly available registry of rights management information shall be administered by the competent collecting societies.”	YES: “to return to the obligation of registering works in order to obtain protection or at least marking them with a copyright note or a relevant licence mark (as e.g. CC licenses).”
Reinforcement of “users’s rights” and Limitations among the Member States, opening up the exhaustive list to further adaptations		“Contrary to what some opponents state, these obstacles [to copyright exceptions for file sharing] lie not so much in the Bern convention and TRIPS three-step test but rather in the exhaustive character of exceptions and limitations in the 2001/29/CE directive.”	YES
The right to quote	YES: “Quotation, defined as the extraction of part, but not the entirety, of a work should be free and permited in all cases as a vehicle for the democratic development of the information society. This must apply in all cases in which the material quoted has already been made public in advance, whether it is quoted for educational or scientific reasons, for purely informational or creative purposes, or for any other purpose whatsoever.”
The legitimacy of referring and linking		YES: “There is a link between this general freedom of reference and the legal recognition of the non-market sharing of digital works between individuals advocated in the previous section. In the context of such a recognition, creating directories of links to digital files making possible to practice this sharing is a legitimate activity, whether it is conducted by commercial players or not.”
		PUBLIC DOMAIN (PD)
Simplification and harmonization of rules of copyright duration and territoriality to identify works in the PD.		YES	YES
Guarantee of full access to orphan works		YES: “an extended collective licence mechanism, giving libraries and archives […] the freedom to make orphan works available in digital form, and to every person the freedom to access them and use them at least without commercial aim. This scheme could be associated with a guarantee fund (financed by the State or parafiscal resources) which would protect users against claims of reappearing right holders ”Current Directive proposal about orphan works (problem with diligent search).	YES: “Both mandatory exceptions and extended collective licensing in combination with a guarantee fund should be explored.”“Any due diligent search requirements should be proportionate to the ability of the users to trace the rights holders ”	YES: “Exclusive rights should be limited if a work is orphaned, […] the search procedures required by the law should not be too timeconsuming or expensive.”“Copyright holder should be able only to prohibit the use of the work or demand the payment of a reasonable remuneration, without any right to compensation.”
Digital reproductions of works in the PD must belong to it.		YES	YES	YES
Sanction to false or misleading attempts to claim exclusivity over the PD			YES
Circumvention of TPM must be allowed when exercising user rights created by Exceptions and Limitations or when using PDM works		YES	YES	YES: “DRM removal or avoiding DRM in order to enable exercise user prerogatives (and, more broadly – use a work in-line with a license) should be explicitly allowed.”
		COLLECTIVE / INSTITUTIONAL RIGHTS
Freedom of non-market collective use		YES: “transformation of the exception for public performance [of copyrighted works] within the family circle into a non-commercial public performance exception. moral persons developing not-for-profit activities must benefit from the same access rights than individuals within non-market sharing.”		YES: “We suggest to abandon reference to specific entities in the provisions on user prerogatives. Instead, the law should define limitations to exclusive rights by specifying activities which could be performed by anyone (e.g. instead of “academic institutions” use the term “education or science”).”
Memory Institutions must benefit from compulsory and harmonized exceptions and limitations that allow them to make their collections available online for non commercial purposes		YES: 5. Freedom of non-market collective use:“Provision by libraries of reproduction means (including lending digital reading devices) to users: such use must be assimilated to private copies, even when there is a transmission to a distant facility.”	YES	YES: “Exclusive rights should be limited to allow libraries, galleries and museums to fulfil their public mission also with the use of the Internet.”
Strengthening existing exceptions and limitation for education and research purposes and broadening them to cover non-formal educational institutions.	YES	YES: “The European Commission itself considered in its Green Paper on Copyright in the Knowledge Economy to make education exceptions compulsory in Member States and extend their scope.”“[These] exceptions must not require financial compensation by users”	YES	YES
Digitization projects that receive public funding must at the minimum ensure that all digitized content is publicly available online	YES: “The results of works and developments funded by public money should always be made accessible to everyone allowing free/libre use and distribution, in a free/open format. All the later uses and modifications (both commercial and non commercial) should respect the same licence.”	YES	YES: “Free redistribution of digitized content reduces the risks inherent to centralized storage.”	YES: “In relation to the rights which are not owned by public entities but arise as a result of public financing, one should introduce a rule of making them openly accessible, preferably on the basis of free licenses.”
All publicly funded research output and educational resources must be made available as open access materials	YES: “The results of works and developments funded by public money should always be made accessible to everyone allowing free/libre use and distribution, in a free/open format. All the later uses and modifications should respect the same license”.	YES	YES	YES: “resources owned by public institutions or financed with public funds constitute a special kind of content which should be treated as a common good and should be available in the public domain.”
Strenghtening and broadening of the PSI Directive		YES	YES: “…to include publicly funded memory organisations – such as museums or galleries – [and to mandate] that Public Sector Information will be made freely available for all to use and re-use without restriction.”	YES: “resources owned by public institutions or financed with public funds constitute a special kind of content which should be treated as a common good and should be available in the public domain.”
		ECONOMY AND FINANCING
Alternative reward systems and cultural flat rate models should be explored to support sharing of copyright work	NO (flat rate)/ YES (private copying, p. 5)	YES: Flat rate “…creative contribution […] can support voluntary resource pooling and prepare the ground for more general schemes.” ———————– Support of sharing through exhaustion of rights doctrine “a definition of the exhaustion of rights for digital works that is at the same time […] a) wider, because one has to apply exhaustion to the reproduction right, and b) narrower because one can restrict the exhaustion of rights to non-market activities of individuals.”	YES
Legal requirements for fair publishing and distribution contracts		YES: “-A separate contract for digital publishing rights, with a limited duration. -In the case of a mixed edition, […] a return to authors of rights as soon as one of the modalities is no longer available. -Forbidding distribution platforms to exclude the non-market distribution of works by their authors -Minimum royalty levels for authors”		YES: “The transfer of rights should not prevent the author from recovering control over their work in a situation where a purchaser of copyrights blocks the use of the work or in other way infringes the author’s interest.”
Preventive competition policy against distribution monopolies		YES: “Compulsory collective licensing for digital distribution [so that] any distribution platform can distribute contents under terms that are as favourable as those conceded to its largest competitors”
Reform of collective management	YES: pp. 7 and 8	YES: Directive proposal should include:“-The principle of one person/one vote must apply. -Compulsory publication of data on the statistical distribution of the redistributed sums -Reform the treatment of the “undistributed” sums”		YES:“The obligatory intermediation of a collective management organisation should be excluded in the case of the Internet (repealing Articles 21(2) of the copyright law), especially if the author himself manifests such a wish (e.g. by awarding a free license to the work).”

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 open digital cultural space, in which all citizens can participate in the cultural life of the city (polis). The aim is to foster non-commercial creativity by and for all, and provide a stable framework for the cultural economy. We will promote these proposals towards governments, parliaments and international organizations.

Preamble

[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: prohibiting technical protection measures which do not enable legal use.

3. recognition of the validity of voluntary dedication to the public domain

The public domain should be defined and applied in a positive manner, recognising the
validity of voluntary dedication to the common pool of reusable works.

Implementation strategies: The legal enforceability of voluntary contributions should be recognized in all jurisdictions and interpreted as compatible with moral rights.

COLLECTIVE AND INSTITUTIONAL RIGHTS

4. Stronger rights 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

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 data sets 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 a fair exchange between publishers and authors, 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).

POSTFACE

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

Agenda Positiva, hay alternativas a la nueva Ley de Propiedad Intelectual