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(A small clarification was made on January 9, 2011, adding the word "fixed".)
Dear President Elect Rousseff and the Citizens of Brazil
In Brazil's debate over copyright law, a momentous improvement has been suggested: freedom to share published works, in exchange for a fixed levy collected from Internet users over time. 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 provide the chance for a second great advance, in support for the arts.
Publishers typically propose to use the money to "compensate" the "rights holders" -- two bad ideas together. "Rights holders" is a disguised way of directing the money mainly to publishers rather than 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 be harmed, it is by comparison with their dreams.) Publishers use the term "compensate" to pressure others to view the issue their way.
There is no need to "compensate" anyone for citizens' file sharing, but supporting artists is useful for the arts and for society. If Brazil adopts a sharing license fee system, it should design the system for distribution of the money so as to support the arts efficiently. With this system in place, artists will benefit 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 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 receive "their" share of record sales until a record sells a tremendous number of copies. If file sharing levy funds are 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.
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 pass through a collecting society, provided that collective societies are reformed so that any group of artists can start their own.
However, 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, using any one 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 instutions 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.) 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 it.
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, and set the artists' shares in proportion to these cube roots.
The effect of this 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. With this offsetting, a given total sum of money will adequately support a larger number of artists.
Promoting art and authorship 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 natural 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--they 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."
I know of one possible obstacle to adopting this system in Brazil: 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 that of 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 obstacle can be surmounted. If Brazil finds itself compelled to pay for the misguided goal of "compensating rights holders", it can still adopt the system presented above. Here is how.
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 temporarily. 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 wishes, aside from that imposed requirement, to support artists and authors better than the existing copyright system does.
Then, after establishing a levy for the sake "compensation", establish a second additional levy (equal or greater in amount) for supporting authors and artists. The wasteful, misdirected plan for "compensation" should not be a replacement for the useful, efficient plan. So implement the useful, efficient plan that supports artists directly, because that is good for society, and implement the "compensation" required by the WTO but only so long as the WTO retains the power to impose it.
This will begin the transition to a new copyright system that suits the Internet age.
Thank you for considering these suggestions.
Copyright (c) 2010 Richard Stallman Verbatim copying and redistribution of this entire page are permitted provided this notice is preserved.