After memorable debates at the French National Assembly and the French Senate about bill Hadopi 1 and Hadopi 2, the Minister of Culture has created a task group dedicated to cooperation, reflexion and proposal, in order to suggest short term concrete measures to improve the legal offer of cultural contents on the Internet, as well as the remuneration of the performers and all contributors of those works. This task group has been entrusted to Mr. Patrick Zelnik, Jacques Toubon and Guillaume Cerruti. We have received the following questionnaire from them, to which the SNAM has sent some answers we would like to share with you.
1) How to meet the expectations of the Internet users in terms of proposing a legal access to cultural contents on the Web (especially music, movies, books and press) ?
We believe the legal cultural offer should be much more diversified. In this regard, we suggest creating public digital platforms, offering a wide choice of contents, thus giving to the various authors and artists, especially those unsigned, the chance to disseminate their works on the Web.
In fulfilling the need for a wide-ranging contents, such platforms would meet the expectations of a great number of Internet users for less published of less accessible works.
Furthermore, we believe we need to work on a real interoperability between the different systems that are used as technical supports, in order to protect their contents (whether it is streaming, or pay-per-view systems on public broadcasting sites).
2) In the fields you are most concerned with, which constraints and emerging problems do you experiment in terms of disseminateing on internet ? (technological improvements, funding, etc)
All musicians are concerned by the Internet. Disseminateing music on the Web has become one of the usual things to do, if not the main support for which an interpretation is nowadays recorded. For instance, classical music concerts are not anymore recorded primarily for being sold on a carrier like a CD or a DVD, but rather disseminated on specialized websites (as « Great symphonic evenings » for example). Then according to the online audience and demand, those recordings will be released -or not- as CD’s or DVD’s.
In making their works available on the Web, some musicians bypass the fact that some of the majors of the music industry actually lock up the distribution channel. But they also experiment at their own expense that without a real marketing strategy, the number of downloads of their music will remain fairly low. In addition, they rather unanimously notice that their works are quite often disseminated on other sites as well, without their authorization, and without them receiving any remuneration in counterpart of their exclusive rights (cf. Deezer, Jiwa...). Powerless, they see themselves as volunteer contributors to the creation of a new business pattern, in which some make profit, and others do not. It is necessary to quantify, repair and invert this unfairness.
It is also necessary to indicate, when musicians give their authorization for disseminating their interpretations on a commercial site, for example, that the financial remuneration they perceive is either nonexistent, either ridiculously low.
In many cases, the phonogram producers have put online files careless of knowing if the interprets had authorize this type of use or not.
Lastly, disseminating works on the Internet is often made in the greatest of chaos and the works are often truncated without the performers’ authorization and without any consideration for the internationally recognized moral right. The point is here about defending the integrity of the works and of the interpretations, jeopardized by the new online disseminateing channels.
3) How to favor the development of a legal online cultural offer ?
As early as 2005, we publicly took position in favor of one -or many- public platform(s) for legal downloading, in order to give access to a wide-range offer of works and interpretations, affordable for the public as well as fair for the performers and authors.
We suggested to take part in creating a partnership with the representatives of the different categories of beneficiaries, as well as representatives of the online consumers, for acting towards creating a public platform for legal downloading.
4) How to guarantee the diversity of those offers, and make sure new talents can emerge ?
The fundamental principle of the public platform will be to guarantee a wide-range offer in proposing a variety of recordings, notably self-productions, giving new talents the means to make themselves known. A special category would be reserved for new talents on those sites, and an appropriate promotion would be evenly done for all.
5) Which incentives can the public authorities implement in that field ?
Acting against illegal downloading is determinative for us. Nevertheless, it is far from being satisfying to solely base our actions on punishing bad behavior. We suggest to campaign for educating the Internet users about the rights related to creation and the Internet. In this regard, the public services should take the initiative of a countrywide education and information campaign (in schools, campuses...) on those themes :
- Investment. This is the essence of the contents. Of course the investment is financial, but for artists and authors, it is also human. It is important to show that creating a work, whatever it is, results from a long learning process, as well a long intellectual and practical effort, whether it is for creating a book, a movie, music...
- “Gratuitousness is robbery”.
- Exception and cultural diversity.
- Democracy and freedom.
This countrywide campaign could be initiated by public services and be carried over by the European entreaties (European commission and parliament), or even international authorities (OMPI, BIT...).
As for musicians, the FIM (International Federation of Musicians) could take part into this campaign.
The public services could then rely on the diversity of the works offered on the Internet thanks to the creation of legal public platforms.
6) What possible business models can finance the cultural industry ?
Producing and disseminateing music is one of the only sectors that slip through the funds plan or the support accounts. We propose to implement a special fund or support account for the cultural industries (majors, independent producers, self-producers) in order to guarantee the diversity of the offer online. The subsidization of this fund or of those accounts could be made possible through adjusting the VAT (a tax on the “added value”) with a 3,5% part, over the 19,6% total, allocated to this plan (the tax income itself would remain unchanged, in order to allow resources to implement a voluntarist cultural policy in terms of producing and disseminateing contents on the Internet).
7) How to insure a fair income to the performers and the producers of cultural contents ?
Global license proposals or Creative Commons are no solution for granting a fair retribution to authors, artists and producers. In radically stretching the field of exceptions to the exclusive rights, we call the essence of authors’ rights and related rights to these into question.
Transforming the authors’ rights and related rights into the simple right to be remunerated means reappraising the moral rights and the exclusivity of those rights in undermining the relations between the authors, the interprets, the producers and the users.
For this reason, we suggest considering the Internet Access Providers as Users, and make them contribute in order to make sure the legal beneficiaries are remunerated.
The main part of this contribution, just like for publicity, would lead to a fair remuneration of the legal beneficiaries, with respect to the exclusive rights for the totality of the legal offers.
Even if they try to claim their neutrality as “hosts”, the Internet providers, true businesses taking their financial advantage into their audience, are collaborating in a large scale hacking and counterfeiting process. In consequence it would be logical that those businesses would be forced to transfer to the legal beneficiaries (authors, artists and producers) that have participated in the creation of the disseminate contents, a part of the profits made through exploiting their works. This payment could be considered as a fair remuneration in counterpart of using those works for which a great investment was necessary, or could be considered as a compensation for complicity in disseminateing illegally protected works and interpretations.
In that perspective, the remaining part of the contributions made by all users could be attributed to compensating this prejudice.
8) What are the good behaviors, in France or abroad, that we could take as models in that field ?
It seems that the IPRED bill in Sweden (similar in many ways to the French Hadopi bill) is giving good results, taken into consideration that Sweden is only 8 million inhabitants and that Scandinavian mentalities are much different from French ones.
9) Any other thing you would like to point out ?
Nowadays, the stakeholders and their representatives (Unions, organizations, SPRD), the Internet access providers, the whole community of Web 2.0 users and the consumers do not find a place to exchange, and to build all together real solutions to the problems raised by the sharing of files on the Internet.
In order to put together the different proposals of all parties, that in many cases are opposed and do neutralize one another, we propose to create a national debate about Creation and the Internet, just like the national debate about environment that was held some two years ago in France (“le Grenelle de l’environnement”).
In the ongoing debate, the attention given to independent production, or even self-production, is more than often overwhelmed by the cultural industry. We believe it is mandatory to clearly show the part of independent production, or even self-production, when talking about cultural production, for it needs to be treated it in a special way, knowing that the “majors” hold 95% of the market.
Dissemination on the Internet has allowed a lot of new talents to emerge ; however the artistic quality, the professional status as well as the reputation of the artists disseminate on the Web do require a financial support from the public authorities. If for some music styles, dematerialized dissemination can represent the accomplishment of a creative process, in most of the cases it only accompanies or prolongs an actual live performance. The internet and its protean offer can create the illusion of a spontaneous generation of talents and therefore give a pretext, in the name of new technologies, for a disengagement of the State and of Local Authorities in regards to their responsibilities in terms of supporting creation and distribution. Something similar to the whole phenomenon of pirate radios in the 70’s and the 80’s might happen again, somehow applied to the Internet, if the market is the only regulator for the online offer and if profitability is the only criterion for choosing the works to be disseminated : very quickly the diversity will be sacrificed by the “majors’” in the name of their financial means and their sales force. This is why we do need public downloading platforms. And Opera disseminated on the Web, would it be produced by the Met or even by the Scala, is not the answer the SNAM is expecting in terms of musical policy in our country, when financial disengagement jeopardizes the Opera Houses.
Translated from French by : Claude Nadeau