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?