A Modest Proposal: for Preventing Creators’ Rights from Being a Burden and Hindrance to their Admirers, while Allowing Creators Compensation for their Labours

My last post raised a little debate, some of it intelligent. It also highlighted several points worth considering. Mulling them over, I’ve come up with the following Modest Proposal.

Despite the Jonathan Swift reference, I’m not suggesting creators should eat their children, though The Cronos Solution might have been a snappier title. (One could, I suppose, allegorise that we eat our brain-children, or indeed offer our own spiritual substance to sustain others, but I don’t want to go down any divine blind alleys today.)  And just like the starving Irish peasantry of the eighteenth century, we can’t turn back the tide of history. Since we can’t prevent illegal uploading and downloading of material without creator consent – or stealing, as some of us insist on calling it  – why don’t we look for ways in which creators could be recompensed for use of their content online?

In making this proposal I accept that, since I know less about the arcane inner workings of the Internet than I do about brain chemistry, there may be good reasons why it won’t work. I’d like to hear them, and any alternative proposals.

By ‘good reasons’ I mean technical limitations or difficulties in application, not that people wouldn’t like it or that it would cost money. It’s a given that almost any activity involving technology or entertainment costs someone money. At the moment the cost/benefit balance of illegal uploading and downloading is unfairly skewed away from content creators. Redressing that balance will make it less favourable to consumers and those who facilitate their habits. Heavy download users and ISPs might find themselves somewhat inconvenienced. Before the predictable rant of rejection begins, I urge the ranters to consider how much more inconvenienced they will be when the last niche author or artist dies of starvation and neglect because he or she had no more children left to eat.

Let’s assume that ISPs (or someone) can track and record every item uploaded to their sites. This applies equally to text music, video and still images, so all creators can be included. Let’s assume that ISPs (or someone) know their users, so they can identify material uploaded by its creators or rights owners. Trailers, promotional material and other items uploaded by the creators or rights owners themselves wouldn’t be eligible for payments from ISPs (etc). Let’s also assume that ISPs can track and record every hit on every single URL. I think I’m on safe ground here, since many ISPs charge for advertising or services on the basis of number of hits or clicks, and if they couldn’t get it right nobody would pay them.

So,  ISPs can tell what is uploaded, and by whom, and how many times each URL is accessed. The authorities can tell, from tax records and accounts, how much each ISP charges for advertising and how much money each ISP makes each year. There should be no problem in devising a way to calculate a fair payment from the ISP to the creator of content posted by a third party on any given URL.

We might base payments on simple presence. We could agree, for example, that if an ISP makes money from advertising, donations or other sources that rely on attracting people to their sites, then for every item they make available for download, five per cent of the daily income should go to the creator or owner of the copyright and intellectual property rights for every day, or part of a day, their property is available on the ISP’s sites.

But ISPs might argue that it’s unfair to expect them to pay creators whose material is sitting on their sites, but not necessarily making them much money, especially when they didn’t ask their customer to upload that particular item. Material that doesn’t attract clicks, they might say, isn’t earning us anything extra, and a fair percentage of nothing is still nothing. So it might be more sensible to base payments on popularity of material, and have ISPs pay an agreed sum every time a user clicks on or downloads an item. Pay-per-use is already established and easy to track with existing technology. The UK’s Public Lending Right operates in a similar way – authors receive a fixed sum every time one of their works is borrowed from a public library.

But how to get the income to the creators? We already have a number of models to follow, and mechanisms for allocating and delivering income to creators are well established. In the UK, the Authors’ Licensing and Collecting Society (ALCS) collects and distributes income for copying authors’ works.  The Performing Right Society (PRS) does the same job for composers, songwriters and music publishers. Both bodies liaise with organisations in other countries to collect income earned by British creators outside the UK. They divide up the income based on agreed formulae, so much per use, and distribute it to their members annually. I don’t know of a comparable body for visual artists or crafters,  but many creators’ organisations already advise their members on copyright issues (like the Artists Rights Society in the USA) and could be invited to take on the role of distributing income.

The cost of distribution need not fall on the State, the ISPs or their users: costs could be met from a levy on receipts before distribution, or by subscription. The ALCS is financed by subscription from authors, who see a direct benefit in paying for membership of an organisation that will collect and pass on income they might otherwise miss.

So that’s my Modest Proposal: ISPs pay a small sum to creators and rights owners for every item of their work uploaded to or downloaded from the Net by anyone other than the owners themselves. Creators’ organisations receive the income from the ISPs once or twice a year and distribute it to their members. ISPs will retain their present DMCA/OCILLA immunity, with the same legal requirements to take down material as at present. The uploaders and downloaders will incur no penalty unless identified and prosecuted by the rights holder, as at present. The creators would get paid for the use of their work, but would retain their DMCA/OCILLA rights to legal action: all payment would, of course, cease immediately the work was taken down following a request in the correct form.

There are four groups of people involved in the illegal download trade: the ISPs, the uploaders, the downloaders and the creators. This proposal, if put into effect, means everybody involved gets something out of the deal. Nothing would change for the first three groups, except that the ISPs would have to pay a small percentage of the profit they make on facilitating downloads to the creators of the material downloaded. The creators will still not have control of their work, in the sense that it can still be uploaded without their consent and they can only get it taken down by legal action; but given that they will receive some compensation, whereas at present they get none, many creators might regard this as a reasonable compromise.

Changes to existing legislation shouldn’t be too complex or contentious, unless the ISPs want to argue that it’s unfair that they should pay anything at all for material that drives content to their sites. It’s for them to decide whether they want to pass on the costs to their users. With goodwill on all sides, and intelligent use of the existing systems and technologies, the whole thing could be up and running in a relatively short time.

If enough of us took this proposal to our Governments, we could make it happen. We could make the Internet free-for-all fairer for all.

What do you think?

9 thoughts on “A Modest Proposal: for Preventing Creators’ Rights from Being a Burden and Hindrance to their Admirers, while Allowing Creators Compensation for their Labours

  1. I’m sorry Helen but your proposal falls at the first hurdle. The ISP’s do not keep track of the advertising, you do. Every time you go to a page with advertising on the page checks the cookies on your computer. It then either creates new cookies or ‘adds’ that hit to the pre-existing cookies. Periodically your computer then sends these running totals to the company or agency running the adds, who then sorts out the money involved. Your ISP has no involvement in this process at all.

    The ISP has no idea of what content is being accessed or downloaded via it’s network. A web data package is tracked through an “address” portion, and they can run totals on those, how many packets pass backwards and forwards. What is inside those packets is never looked at. The much talked about storage of everything you up and download is just storing copies of these packets. If the Govt wants to know what you have been doing that is what is handed over, it is then up to them to sort out what is what.

    ISP’s are carriers, nothing more. It is technically impossible to have them check. Not difficult. Not expensive. Impossible. If it was possible child pornography on the net would have been wiped out years ago. I cringe when people who should know better like Carol Voordeman say that ISP’s should be monitoring all traffic to stop child pornography and just won’t hear that they are asking for the impossible.

    Also Helen most web content is not held by ISP’s. I know several of my geekier friends who host their web pages entirely on their own computers, and ALL illegal content is passed as files person to person. What passes through the network is a tracking code, which makes no differentiation whatsover on what is actually being tracked.

    • In my experience, people generally say “It’s impossible” when they mean “It’s not in my/someone else’s interest to make this possible at the moment.” There might well be reasons for that, but those reasons can be examined. So what can we do to move this forward? If we can’t track usage through the ISPs’ records, but we can have copies of the packets handed over, it is presumably possible to track usage/downloading via these? Could the ad totals sent to the agencies be used to track hits?

      • The problem is pirates sites will just move their servers overseas, where the US doesn’t have any powers.

        If the US blocks their ip adresses they just get a new one and/or people in the US access it via a proxy server.

        ISPs aren’t the ones who profit from piracy.

        You have people who upload pirate works, people who download them, websites that host them like mangawhatever.com, and the isp who provides an internet connection.

        It is the mangawhaever.com owners who gain funds from the pirated content not the isp.

      • I think everyone involved in piracy profits from it except the people whose work is stolen. ISPs make money from traffic and piracy generates traffic. They may not make as much of their income from piracy as the websites that rely on big traffic flows to pull in advertising, but they definitely make some.

        A very small percentage levy on every such profiteer, from the ISPs to the websites to the advertisers on these sites, would create a pot of money that could be shared among authors and artists using existing arrangements. Then at least those people whose work is being stolen and used without their consent would get some compensation for it. This would do an enormous amount of good. Here in the UK our Public Lending Right gives income to every author whose book is borrowed from a library, and for many authors this is a very valuable addition to their writing income. Public Download Right could become just as valuable as Public Lending Right.

        The legislators should have thought of this and made appropriate arrangements before they signed the law into effect. It’s not too late for them to do it retroactively.

      • http://news.bbc.co.uk/1/hi/technology/8548190.stm

        I can see this being taken by the downloaders as a green light to do as they please.

        “You can’t cut be off, its my human right to access the internet”.

        I’ve seen peoples comments to John Ledford’s claim that illegal downloading was partly the reason for ADV UKs demies and they basically say ‘well, it hasn’t affected the shows I download, so what?’. I think the reaction will be different if/when the source dries.

      • I expect you are right – at least some members of the Legions of the Ignorant will take this as acceptance that their wish to take everything they want from the Internet, from porn to piracy, has attained the same basic status as the right not be be murdered.

        However, human right to access isn’t the same as human right to download. Those of us with two brain cells to rub together need to keep pointing this out.

  2. Well Panorama has kicked up this storm again.

    I just can’t understand why people think they should have access to other people’s work for free. Someone has worked hard to create something you obviously take enjoyment from (or you wouldn’t watch/listen) yet you won’t give them any thanks/reward for their efforts.

    A world where ALL information is free would be very dull. No-one would create anything.

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