Charter for Innovation, Creativity and Access to Knowledge @ FCForum

Citizens ‘ and artists’ Human Rights in the digital age

Immediate and urgent solutions

(Complete Version 2.0)

A broad coalition from over 20 countries, of hundreds of thousands of citizens, users, consumers, organizations, artists, hackers, members of the free culture movement, economists, lawyers, teachers, students, researchers, scientists, activists, workers, unemployed, entrepreneurs, creators…,

invites all citizens to make this Charter theirs, share it and put it into practice.

We invite all governments, multinationals and institutions urgently to listen to it, understand it and enforce it.

Below you will found the Complete Version of the Charter.

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(Important introductory note: Author rights, patents, royalties and similar creativity incentives are sometimes called “Intellectual Property”. This term, as Richard Stallman explains, is imprecise, distors physical reality and is ontologically inaccurate. We will not use it in this Charter. We will only use the correct terms such as “Author rights”, “patents”, “royalties”, etc.)

1. Introduction
2. Legal demands
3. Guidelines for Education and Access to Knowledge
4. Structural requirements for a knowledge society open to all and for all
5. Transparency
6. References
7. Members of the FCForum
8. Public endorsements
9. Licenses

1. Introduction

We are in the midst of a revolution in the way that knowledge and culture are created, accessed and transformed. Citizens, artists and consumers are no longer powerless and isolated in the face of the content production and distribution industries: now individuals across many different spheres collaborate, participate and decide in a direct and democratic way.

Digital technology has bridged the gap, allowing ideas and knowledge to flow. It has done away with many of the geographic and technological barriers to sharing. It has provided new educational tools and stimulated new possibilities for forms of social, economic and political organisation. This revolution is comparable to the far reaching changes brought about as a result of the printing press.

In spite of these transformations, the entertainment industry, most communications service providers, governments and international bodies still base their sources of profits and power on controling contents, tools and distribution channels, and on managing scarcity. This leads to restrictions on citizens’ rights to education, access to information, culture, science and technology; freedom of expression; inviolability of communications and privacy; freedom to share. The protection of private interests should not be allowed to hold back the development of society in general, above the public interest.

Today’s institutions, industries, structures or conventions will not survive into the future unless they adapt to these changes. Some, however, will alter and refine their methods in response to the new realities. And we need to take account of this.

Political and economic implications of free culture

Free culture (as in “freedom”, not as “for free”) opens up the possibility of new models for citizen engagement in the provision of public goods and services. These are based on a ‘commons’ approach. ‘Governing of the commons’ refers to negotiated rules and boundaries for managing the collective production and stewardship of and access to, shared resources. Governing of the commons honours participation, inclusion, transparency, equal access, and long-term sustainability. We recognise the commons as a distinctive and desirable form of governing. It is not necessarily linked to the state or other conventional political institutions and demonstrates that civil society today is a potent force.

We recognize that this social economy, in addition to the private market, is an important source of value. The new commons revitalised through the digital technology (amongst other factors) enlarges what constitutes “the economy”. At present governments give considerable support to the private market economy; we urge them to give the same extensive support that they give to the private market to the commons. All that the commons needs to prosper is a level playing field.

The current financial crisis has shown the severe limits of some previous models. On the other hand, the philosophy of Free Culture, a legacy of the Free/libre and Open Source Software movement, is the empirical proof that a new kind of ethics and a new way of doing business are possible. It has already created a new and workable form of production, based on crafts or trades, where the author-producer doesn’t lose control of the production process and can freed from production and distribution intermediaries. This form of production is based on autonomous initiative in solidarity with others, on exchange according to each person’s abilities and opportunities, on the democratisation of knowledge, education and the means of production and on a fair distribution of earnings according to the work carried out.

We declare our concern for the well-being of artists, researchers, authors or other creative producers. In this Charter we propose a number of possibilities for collectively rewarding creation and innovation. Free/libre and Open Source Software, Wikipedia, free licensed Net Labels and book publishers, and many other examples show that the model of Free culture can sustain innovation and that knowledge monopolies are not necessary to produce knowledge goods. In cultural production, what is sustainable depends to a significant extent on the type of ‘ product’ (the costs of a film for example, are different from those of an online collaborative encyclopedia). Projects and initiatives based on free culture principles use a variety of ways of achieving sustainability. Some of these forms are consolidated. Some are still experimental. A widespread principle is that of combining several sources of finance. This has the added benefit of guaranteeing independence.

The economy models for sustaining cultural production include amongst others: non-monetary donations and exchange (I.e. gift, time banking and barter); Direct financing (I.e.: Subscriptions and donations); Shared capital (I.e.: Matching Funds, Cooperatives of producers, interfinancing / social economy, P2P Banking, Coining virtual Money, Crowd funding, Open Capital, Community based investment cooperatives and Consumer Coops); Foundations guaranteeing infrastructure for the projects; Public funding (I.e.: basic incomes, mutualized fundings, grants, awards, subsidies, public contracts and commissions); Private funding (I.e.: venture investment, shares, private patronage, business investment infrastructure pools); commercial activities (including goods and services) and combination of P2P distribution and low cost streaming. The combination of these options is increasingly viable both for independent creators and industry.

There must be clear rules that promote public and sharable knowledge, protecting it from any forms of exclusive appropriation by anyone and thus preventing any restrictive monopolies or oligopolies that may emerge from this appropriation.

The digital era holds the historic promise of increasing justice and of being rewarding for all.

This is the objective of the following proposals:

2. Legal demands

We have identified flaws in national regulations and international treaties regarding the dissemination of culture and knowledge, both in private, contractual relations and in international public policy. We suggest reforms necessary to overcome these problems.

The conservative and defensive behaviour of the copyright production and distribution industries has led to a situation where authors and their audiences are pitted against each other. This conflict benefits largely the media conglomerates and government organisations by giving them control over global flows of information at the expense of creators and consumers. This is detrimental to the public interest.

In this context the public interest is served by supporting and ensuring continued creation of intellectual works of significant societal value, and to ensure all citizens have unfettered access to such works for a wide variety of uses.

A. Rights in digital context:

Author rights, patents, royalties and similar creativity incentives should not be considered an end in itself, but rather a medium to promote public interest, innovation, access to science, technology and the arts.

Right to quote:

Quotation, defined as the extraction of a part of, but not the entirety, of a work must be defended 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, or for purely informational, creative purposes or any other purpose.

Private copying:

The rights of the individual in the private sphere and for personal use should not be undermined by the exclusive rights of the author.
There is no need for a copyright holder to authorise or be compensated for any reproduction, in any form, when dealing with works that have already been made public, when the reproduction is done for private use or sharing, both individual or collective, and when no direct or indirect economic profit is obtained from it.

Fair use:

There should be no requirement to seek an author’s permission for the reproduction or dissemination of artistic, scientific or technical works that have already been presented publicly, when the purpose is educational, scientific research, information, satirical or incidental to the principal creative objective, as long there is attribution and all moral rights are respected.
The defence of the right to private copying and fair use of works should be firm and absolute, given that copying is the very basis for learning and culture. Authors/creators are indebted to shared culture and for this reason their contributions to culture should not be subject to any form of compensation beyond commercial use of their work (sales, fees and royalties related to said sales or performances).
There should be a strong emphasis on defending the right to information.
There should be a strong emphasis on preserving the right to parody.
In addition, we subscribe to the delineated list of fair uses compiled in “Article 3-1 – General Limitations and Exceptions to Copyrights” of draft document Access to Knowledge 2005.
Remedies should be limited to proven monetary damages for actual counterfeiting. Lost sales and statutory damages cannot be applied to private copying and personal use. Injunctions shall not be issued if they constitute a prior restraint.
Non-Original or Creative Works: Facts and Works lacking in creativity (“a de minimus quantum of creativity”) should not be subject to copyright or copyright-like protections.

Freedom to innovate:

Freedom and innovation are not opposites of each other, but rather concepts that are strongly related. Repressive legal regimes that reduce freedom also tend to harm innovation. People need the freedom to change, modify, improve and test inventions, devices, and systems, and to freely engage in critical speech regarding such innovations.

Patents:

Refer to A2K draft, Part4.

B. Stimulating Creativity and Innovation

We declare our concern for the well-being of artists and authors. We therefore propose various methods for collectively rewarding artistic creation and innovation with the following criteria:

There should be diverse sources of support for creative communities including commercial use, direct fiscal support by consumers and public investment
In order to promote the fare remuneration of artists, the role of intermediaries should all be limited. The role of currently existing intermediaries should be reduced to critical functions such as collecting usage data and the just distribution of renumerations to authors.

Author rights and royalties distribution:

Creators, as any worker, should receive a fare reward for their work. In creative labors, when Royalties cannot be garanteed in a reasonable quantity and time, fees should be garanteed. The objective should be the creation of a stable employment environment in the cultural industry that would not necessarily be totally dependent on the ups and downs of royalties.
Differences in bargaining power always produce unfair outcomes, also between creative individuals and the commercial entities that invest in, market and/or sell culture and knowledge goods and lead to many creative works being withheld from the public. Authors/creators should be paid equitably for the activity they are involved in, whether or not they are members of a collecting society. Unfair contracts between authors and publishers should not be enforced by courts. Within 30 years of signing a contract with a publisher or employer, the author or her heirs should have an opportunity to regain the rights to the work under copyright. This shall not affect the validity of any existing licenses to use works, or licenses that permit sharing to use works granted to the public, including those which have conditions that protect the commons.
When there is commercial exploitation of a work, rules regarding economic rights should protect the economic interests of creative communities, and insure that third parties such as distributors do not prevent creative communities from having a fair share of the rewards, including fair royalties for creative persons.
All “digital levies” that indiscriminately sanction everybody in the name of “compensation for artists” and that attempt to penalize activities that are in no way criminal should be abolished. The concept of “obligatory compensation” should not exist.

Royalties management and collecting societies:

Authors/creators shall be able always to revoke the mandate of the collecting societies.
Collection societies are private entities that only and exclusively manage the “accounts” of their members which are never the entire creative community.
Free competition should be permitted as with all private entities. Legal monopolies for collection societies should be abolished.
Authors and editors should not be represented by the same entity, as in the days of vertical organisations.
Above all, collection societies should only collect money and manage works that are registered with the collecting society, and should not collect money for uses of works that are explicitly licensed under free licences. No collection society should be allowed to prevent artists or authors from using free licenses.
Private collecting societies shouldn’t be managing unpersonifacable levies. Those amounts should be managed buy public institutions and should be used to promote the creativity of the whole society.

C. Knowledge Commons and Public Domain

Non-copyrightable Works:

There should be no copyright on laws, government reports, political documents and speeches, or regulatory compliance information.
Sui generis database rights should not be introduced, and should be repealed in jurisdictions where they exist.

Public domain Works:

There has to be a guarantee that all the published public domain works are accessible.
Every jurisdiction should allow a work to be released directly in the public domain prior to the expiry of the general copyright term.
The results of developments funded by public money should always be licensed under a free access, use and distribution license and all developed patents should be released under royalty free terms, free of any other restriction and in a open, libre and free environment.
Research funded through educational institutions should be published on an sharable access model. Policy makers should implement the recommendations of the Paris Accord on scholarly publishing.

Works licensed to permit sharing:

Every legal system should facilitate and promote sharable licensing to the same extent as proprietary licensing.

Orphaned Works:

There should be freedom to use a copyrighted work if the copyright owner cannot be located after a due diligence search.

Freely available Works:

There should be no restriction of the freedom to access, link to and index any work that, although not sharably licensed, is already freely accessible to the public online.

Proprietary Works:

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 support shortening it. Excessive terms do not benefit consumers or authors.

D. Defending access to Technological Infrastructures and Net Neutrality

Internet access is essential for learning and for the practical and meaningful exercise of freedom of expression and communication.
Citizens and consumers are entitled to an Internet connection that enables them to send and receive content of their choice, use services and run applications of their choice, connect hardware and use software of their choice that do not harm the network.
Citizens and consumers are entitled to an Internet connection that is free of any form of discrimination – whether blocking, limiting or prioritizing – with regard to type of application, service or content or based on sender or receiver address.
IP addresses of citizens and consumers are potentially identifiable data and the data subject has a right of access to correct, delete, or prevent the transfer of their personal information.
Filtering of Internet content is a threat to fundamental rights, and is an invalid, ineffective and disproportionate solution for enforcement. No limitation or filtering should be carried out.
Citizens are entitled to access to a free, unlicensed band of the spectrum for digital communications, such as the analog TV range and, in general, at least a 25% of any new range of the spectrum that is released in its current use.

E. Access for works for persons with reading disabilities

When accessible formats of works for persons who have reading disabilities are created under copyright limitations and exceptions, the global legal systems should enable cross border import and export of such works.

F. Reverse Three-Step Test (Paradox on the Three Steps Test)

(The three-step test got introduced in the Berne Convention in 1967 and was later also added to the TRIPS treaty. It is a system that tend to prevent any reduction of the scope and duration of copyright. In this Charter, following a very strong legal tendency to prevent the further erosion of the public domain, we have devised a reverse three-step test for preserving our liberties in an information society).

Innovation, creativity, and access to knowledge may only be limited or constrained when and if the three conditions below are met simultaneously:

exceptional circumstances of public interest;
when methods are used that do not undermine or discriminate against the use, transformation and dissemination of knowledge, creative works and technology infrastructures, services and software;
when such restrictions do not violate human and civil rights in the information society and are not otherwise inconsistent with democratic culture.

3. Guidelines for Education and Access to Knowledge

Learning is a process of social construction of meaning through sharing knowledge, experience and cultural nuances. Culture evolves as knowledge spreads throughout society. We understand education as a social process that involves a wide range of educational actors, technologies, entities and activities, not just the official and formal ones. Our vision of education is one which fosters a culture of knowledge sharing and educational innovation that is efficient and sustainable.

A. Empowerment of educators:

Education is a fundamental tool to improve our societies and achieve human progress. The task of educators must be recognised. They need to be empowered to facilitate learners in the values of a sharing culture, the use of Free/libre and Open Source Software and Free Knowledge in general. Thus we urge educational institutions and communities to:

Assure training and technical support for educators in the use of Free/libre and Open Source Software and Sharable Educational Resources.
Ensure educators are able to dedicate part of their time to learn, maintain, author and share educational resources.
Set up new communities of educators for the exchange of knowledge and experiences and link existing ones.

B. Support and awareness:

Imitation is the starting point for learning. Copying and sharing knowledge are thus founding principles of any educational process. The culture of sharing embraces these principles rather than discouraging them. Thus we urge educational institutions and communities to:

Support activities and provide resources to raise awareness and understanding of the sharing culture and to promote a free, distributed and sharable education. Show useful case studies in education as good practices and encourage the creation of new projects.

C. Educational materials:

Educational resources are a basic educational tool; their sharable publication in the public domain or under a free license facilitates access, stimulates improvement and participation and caters for cultural diversity, while maximising reuse and efficiency. Thus we urge educational institutions and communities to:

Elaborate Sharable Educational Resources and free educational materials.
Distribution should be made:
- Through the Internet, using well structured, Open Standard compliant, easy to use repositories.
- Printing physical copies (e.g. using the already existing university-based publishers) and bringing them to public libraries and financially disabled people
Make publicly funded materials available freely for reuse without legal and technical restrictions. This can be either as public domain or under a free license, preferably with Copyleft protection.
Translate and localise these materials into different languages to reach the largest possible range of world population.

D. Software and other tools:

Free/libre and Open Source Software allows people to study and learn concepts instead of black boxes, enables transparency of information processing, assures competition and innovation, provides independence from corporate interests and increases the autonomy of citizens.

The use of open standards and open formats is essential to ensure technical interoperability, provide a level playing field for competing vendors, enable seamless access to digital information and the availability of knowledge and social memory now and in the future. Thus we assert that:

Educational entities should use Free/libre and Open Source Software as a learning tool, as a subject in itself and as the base for their IT infrastructure.
All software developed in an educational environment and publicly funded must be released under a free license.
Promote the use of Free/libre and Open Source Software in textbooks as an alternative to proprietary software to perform learning-related tasks such as numerical calculus, image editing, document composition, etc. where applicable.
Develop, provide and promote free editing tools to elaborate and improve didactic materials.
Technologies like Digital Rights Management must be refused to assure the permanent access to educational resources and enable lifelong learning.

E. Recognition and certification:

As new forms of collective production spread throughout the educational system, skills and experience acquired in this way should be taken into account in official accreditation and certification. Thus we urge educational institutions and authorities to:

Create mechanisms of certification to recognise a sharing culture and sharable education within the educational system.
Integrate these new practices with official and already existing educational curricula.
Adapt scientific policies on research so that they recognise the benefits of sharable access journals and self-archiving, in order to strengthen the dynamics of scientific debate and the quality of feedback.

F. Peer to peer education and collaboration between educators and learners:

The barriers between learner and teacher are being lowered and new forms of education are taking shape. Open communities and participation in peer-to-peer production processes provide enormous value for learning. Thus we urge educational institutions and communities to:

Boost collaborative work between teachers and students in the production of knowledge.
Encourage students’ involvement in teaching with their peers.
Share credit between educators and students.
Promote collaborative and interdisciplinary work between educators on different fields.

G. Science and academic knowledge:

Sharable Access publications assure the access to the results of scientific research, for scientists as well as the general public; they boost the possibilities for learning and they enable diverse research disciplines to discover each other’s results. Thus we assert that:

Universities and research centres should embrace the Sharable Access model for the publication of research results. These resut should be accessible in direct and anonymous way to the whole public.
The application for patents on the results of publicly funded research should be discouraged. Patents held by public institutions should be irrevocably released under royalty-free terms and free of any other restriction.

4. Structural requirements for a knowledge society

Privacy:

Citizens have the right to:

be allowed to browse the Internet and access contents anonymously.
decide at any time to move, modify or remove their user data from any online service.
protect their privacy and encrypt their communications.
Not to experience any interception in their communications, expect after previous judicial rule, and to encrypt their communications at any level, without any limitations concerning the key or algorithm used.

Rights on networks: Freedom to USE, CREATE and CONNECT:

Civil society and public administrations must have the right to provide and implement network services, including those offered for free and without conditions to the citizens.
Citizens must have the right to connect any hardware (e.g. carterfone), any software application (e.g. voip), or any other network (e.g. tethering) to free networks without any restriction.

Infrastructure and market regulation:

Neutrality: Net neutrality must be guaranteed (read Glossary of terms and legal demands section C for a precise definition).
Symmetry: Internet access providers must grant symmetrical connections or a reasonable download/upload ratio. There should be access to broadband (ITU-i113) as a universal service right for all citizens.
Diversity: monopolies in telecommunications infrastructures and service provision should be prevented. Citizens have the right to have access to more than one provider (public or private) and that the offer of this service is not subject to the acquisition of other products or services. In any case, all citizens have the right to have at their disposal the tecnology systems, products and infrastructures that allow free access to Internet (‘digital dividend’).
Network providers must fulfill agreed-upon access speeds; in pre-payment contracts, only the traffic explicitly transferred or demanded by the user must be charged.In addition, providers should always offer users a flat rate tariff system.

Public Administration:

Public sector, publicly funded projects and those that commit citizens by law or in a manner affecting their fundamental rights, should always use free software and open standards.
When a free solution or open standards does not exist, the government or the corresponding public institution should promote the development of the software needed. In the interim only solutions that are publicly auditable must be used in order to guarantee the democratic process as a whole.
The results of development funded by public money should always be licensed under a free license and all developed patents should be released under royalty free terms and free or any other restriction.
Governments must guarantee a non-exclusive free Internet access to every citizen independently of its place of residence (at least to the level required to exercise its rights as a citizen and to take part in democracy and relate to its public institutions).

Regarding how software evaluation and purchase should proceed in public administration:

Public purchases of software must evaluate the total cost of using it, including the costs of stopping using it and migrating to an alternative software.
Public accounting must clearly separate between the costs of software licenses, maintenance, support and service, all apart of hardware.

5. Transparency

In order to avoid the breach of any fundamental rights (e.g. invasion of privacy, freedom of expression, etc.) there is a need for transparency in enforcement. This must include information on the authorities in charge of the law’s application and on the nature of the obligatory procedures. The government should ensure, through a transparent and public process, the existence of systems of evaluation of how the norms are applied. The results published by the independent experts hired for the evaluation (see – database directive) should be taken into consideration in the norm-setting process. A meaningful way to ensure the transparency process is to have obligatory transparency audits.

We are promoting a three strikes systems for violators of the public right to be informed. There is a public interest in transparency of lobbying activities. A transparent process in national and international norm setting needs to include at least:

Public access to documents related to this process, the possibility to attend meetings (including via the Internet) and to be to able to read the meeting minutes. These minutes will include the names of the attendees, advisers, and the casted votes.
Details on the persons that are making the decisions
Meaningful opportunities to submit comments to the norm-setting process. The comments from all the contributors shall be made public. A dialogue between all parties is necessary, especially in responding to comments in writing. Public voices should be part of the public record.
Information on any evidence that is presented to promote or justify policies, including their sources and their reliability. Independent evaluation or peer review of data relevant to the intellectual property systems is needed.
Democratic access to statistics that are needed to evaluate the way that copyright and patent systems work, including for example the impact of such measures on prices, the royalties that are paid to creators for access to works or the impact on fundamental rights and freedoms.