Charter for Innovation, Creativity and Access to Knowledge 2.0.1

Citizens’ and artists’ Rights in the Digital Age

Immediate and urgent solutions

(Download Complete Version Charter 2.0.1)

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

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

We invite all governments, multinationals and institutions to pay attention to it, understand it and enforce it.

Below you will find the Complete Version of the Charter 2.0.1

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Important introductory note:

Author rights, patents, trademarks, and a dozen other laws are sometimes lumped together under the term “Intellectual Property”. This term, as Richard Stallman explains, is biased and confusing, and misrepresents the facts of these laws. 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
5. Transparency
6. Glossary of Terms
7. References
8. Members of the FCForum
9. Public Endorsements
10. 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 social, economic and political organisation. This revolution is comparable to the far-reaching changes brought about by the invention of the printing press.

In spite of these transformations, the entertainment industry, most communications service providers, governments and international bodies still base the sources of their profits and power on controlling tools and distribution channels for what they call “content”. They present this approach as the only possible model for how a digital society can deal with culture. 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.

In deciding copyright policy, the general interest shall take priority over the specific private interests.

Today’s institutions, industries, structures and conventions will not survive into the future unless they adapt to the changes that result from digital era. 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/Libre Culture

Free culture (free 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 is an important source of value, alongside the private market. The new commons, revitalised through digital technology (among other factors), enlarges the sphere of what constitutes “the economy”. Governments currently give considerable support to the private market economy; we urge them to extend to the commons the same comprehensive support that they give to the private market. A level playing field is all that the commons needs in order to start being successful.

The current financial crisis has highlighted the severe limits of some of the existing models. On the other hand, the philosophy of Free/Libre Culture, a legacy of the Free/Libre Software movement, is empirical proof that a new kind of ethics and a new way of doing business are possible. It has already created a new, workable form of production, based on crafts and trades, in which the author-producer does not lose control of the production process and can free of the need for production and distribution intermediaries. This form of production is based on collaborative entrepreneurial initiatives, 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 and other creative producers. In this Charter we propose a number of options for collectively supporting creation. Free/Libre and Open Source Software, Wikipedia, Free/Libre licensed Net Labels and certain book publishing initiatives are just some of the many examples that prove that the model of free/libre culture can sustain innovation, and that knowledge monopolies are not required for the production of knowledge goods. In cultural production, sustainability is largely dependent on the type of ‘product’ (the costs involved in making a film for example, are different from those of an online collaborative encyclopaedia). Projects and initiatives based on free/libre culture principles use a variety of ways of approaches to achieve sustainability. Some of these forms are well-established, others are still experimental. It is necessary to investigate and promote sustainable financial models that are capable of addressing digital society as it is and the new uses and values emerging from this cultural paradigm.

Economic models for sustaining cultural production include: non-monetary donations and exchange (i.e. Gift, time banks and bartering); 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 projects; Public funding (i.e.: basic incomes, mutualised funding, 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 for both independent creators and industry.

There must be clear rules that promote public, sharable knowledge, protecting it from any form of exclusive appropriation by individuals or companies, and thus preventing the possibility of restrictive monopolies or oligopolies emerging from this appropriation.

The digital era holds the historic promise of strengthening justice and being rewarding for everybody.

This is the objective behind the following proposals:

2. Legal Demands

National regulations and international treaties regarding the dissemination of culture and knowledge, both in private, contractual relations and in public policy, are severely flawed. Here we will propose the reforms necessary to overcome these problems.

The conservative, defensive behaviour of the copyright production and distribution industries has led to a situation in which authors and their audiences are pitted against each other. This conflict mainly benefits 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.

The public interest is served by supporting and ensuring ongoing creation of intellectual works – because of their significant social value, and by ensuring that all citizens have unfettered access to such works for a wide range of uses.

A. Rights in Digital Context:

https://www.youtube.com/watch?v=Lt6NnE5aRR8

View online and download sharingisnecessary.ogg here

Author rights, royalties and similar incentives to creativity should not be seen as an end in themselves,
but rather as a creative stimulus and a means to promoting public interest.

The right to quote:

Quotation, defined as the extraction of part, but not the entirety, of a work should be free and permited 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, for purely informational or creative purposes, or for any other purpose whatsoever.

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.
Reproductions, in any form, of works that have already been published, when the reproduction is for the purpose of sharing or private use (either individual or collective), and when no economic/commercial profit is obtained from it, should not require authorisation from the copyright holder and does not generate “remuneration”. It should not be considered illegal to have a private copy of a work.

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.
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 list of fair uses outlined in “Article 3-1 – General Limitations and Exceptions to Copyrights” of draft document Access to Knowledge 2005.

Freedom to innovate:

Freedom and innovation are not opposites rather they go hand in hand. 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

https://www.youtube.com/watch?v=hLiUZ7a5YMw”

View online and download wecreatewedecide.ogg here

We propose a series of methods for collectively supporting artistic creation, based on the following:

There should be diverse sources of support for creative communities. These can be of a commercial nature, based on direct funding, or through public investment.
In order to promote fair remuneration for artists, the role of middlemen should be restricted.

Rewarding creative work and author’s rights: two different concepts

Creators, like any other worker, should receive a fair reward for their work. In creative labour, fees should be guaranteed whenever a reasonable amount and payment term of royalties cannot be guaranteed. The objective should be to create a stable employment environment for the cultural industry, which would not necessarily be totally dependent on the ups and downs of royalties.
Differences in bargaining power always produce unfair outcomes, and this also applies to negotiations between creative individuals and the commercial entities that invest in, market and/or sell culture and knowledge goods, and often lead to many creative works being withheld from the public. Authors/creators should be paid equitably for the activities 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 should not affect the validity of any existing licenses to use works, or licenses that permit sharing of works granted to the public, including those which have conditions that protect the commons.
In the case of the commercial exploitation of a work, economic regulations should protect the financial interests of creative communities and ensure that third parties such us the cultural industry do not prevent creative communities from obtaining a fair share of the profits.
All unfair “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 “compulsory compensation” should not exist.

Collecting societies:

Authors/creators should always be able to revoke the mandate of collecting societies.
Royalties collection societies are private entities, so they should be allowed only to manage the accounts of their members, who are in no case the entire creative community.
Free competition among collecting societies should be permitted, as with all private entities. Legal monopolies for collection societies should be abolished.Eligible authors and artists should be free to register with each society those works they choose, while leaving other works unregistered, or registering them elsewhere.
Authors and editors should not be represented by the same entity, as in the days of vertical organisations. Each member should have the right to vote. One member, one vote.
Above all, a collection society should only manage and collect for works that have been registered with it.
No collection society should be allowed to prevent artists or authors from using free licenses.
Private collecting societies should not manage non-attributable levies. Any amounts that are not attributable to particular authors should be managed by the state for the purpose of promoting the creativity of society as a whole.

https://www.youtube.com/watch?v=fDqidj_0XCs

View online and download thetrackscollector.ogg here

C. Knowledge Commons and Public Domain

https://www.youtube.com/watch?v=rdHgN1AlyuQ

View online and download vickycristinabarcelona.ogg here

Proprietary Works:

The 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 defend shortening it. Excessive terms do not benefit consumers or authors.

Public domain Works:

Every jurisdiction should allow a work to be released directly into the public domain prior to the expiry of the general copyright term.
The results of works and developments funded by public money should always be made accessible to everyone allowing free/libre use and distribution, in a free/open format. All the later uses and modifications (both commercial and non commercial) should respect the same licence.
Research funded through educational institutions should be published on an access model that permit sharing.
When the state or state-supported institutions possess copies of works whose copyright has expired, they must make them accessible to the public, so that they can be copied, shared and used in any form.

Freely available Works:

There should be no restriction of the freedom to access, link to, and index any work that is already freely accessible to the public online, even if it is not under a sharable licence.

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.

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 holder cannot be located after a due diligence search.

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, therefore Net Neutrality must be assured.
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. ISPs must fully document the protocols they use to communicate with the customer so that customers’ choice of software with which to use the Internet services is not limited by secrecy.
Citizens and consumers are entitled to an Internet connection that is free from any form of discrimination – whether blocking, limiting or prioritizing – with regard to the 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 subject of the data has the right of access it in order 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/Libre, unlicensed band of the spectrum for digital communications, such as the analogue TV range and, in general, at least a 25% of any new range of the spectrum that may be released.

E. Access to Works for Persons with Reading Disabilities

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

F. Reverse Berne’s Three-Step Test

The three-step test was introduced in the Berne Convention in 1967 and was later also added to the TRIPS treaty. It is a system that tends to prevent any reduction of the scope and duration of copyright. In this Charter, in keeping with a very strong legal current to prevent further erosion of the public domain, we have devised a reverse three-step test for preserving our freedoms 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 public interest in constraining them
the use of methods 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

Imitation is the starting point for learning. We understand education as a social process that involves a wide range of educational actors, technologies, entities and activities, beyond simply the official, formal ones. Our vision of education is one which fosters an efficient and sustainable culture of knowledge sharing and educational innovation.

A. Empowerment of Educators:

Education is a fundamental tool to improve our societies and achieve human progress. They need to be empowered to teach learners within the values of a sharing culture, which means, the culture of using Free/Libre and Open Source Software, and more generally of Free Knowledge. Thus we urge educational institutions and communities to:

Guarantee 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 learning, maintaining, authoring and sharing educational resources.
Set up new communities of educators for the exchange of knowledge and experiences and to link existing ones.

B. Support and Awareness:

Imitation is the starting point for learning. Copying and sharing knowledge are thus two of the 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 use educational materials released to the public under a free/libre license, and publish such materials.

C. Educational Materials:

Educational resources are a basic educational tool; their sharable publication in the public domain or under a free/libre 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:

Use and generate educational materials released to the public under a free/libre license.
Distribution should take place:
- Through the Internet, using well-structured, Open Standard compliant, easy to use repositories.
- Printing physical copies (e.g. using already existing university-based publishers) and bringing them to public libraries and financially disadvantaged people.
Translate and localise these materials into different languages, in order to reach the largest possible range of world population.

D. Software and Other Tools:

Free/Libre Software allows people to interact while they are studing and learning. Free/Libre Software it is not an passive model, it allows people to interact with the tools they are using since it allows to interact with the code, to study and learn about the code as well as using its features.

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

Educational entities should use Free/Libre and Open Source Software as a learning tool, as a subject of study in itself and as the base for their IT infrastructure.
All publicly funded software developed in or for an educational environment must be released under a Free/Libre license.
The use of Free/Libre and Open Source Software should be promoted in textbooks as an alternative to proprietary software where appliicable (numerical calculus, image editing, document composition, etc.).
Educational entities should develop, provide and promote free/libre editing tools to create and improve didactic materials.
Technologies like DRM must be rejected, in order to guarantee 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, official accreditation and certification processes should recognise the skills and experience acquired in this way. We thus 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, existing educational curricula.
Adapt scientific policies dealing with 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 learners and teachers 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. We thus urge educational institutions and communities to:

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

G. Science and Academic Knowledge:

Sharable Access publications ensure 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 remain informed of each other’s results. We therefore declare that:

Universities and research centres should embrace the Sharable Access model for the publication of research results. These results should be accessible in a direct and anonymous way to the general public.
Patent applications for 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:

browse the Internet and access content anonymously.
decide at any time to move, modify or remove their user data from any online service.
protect their privacy and encrypt their communications.
be free of all interception in their communications, except when authorized by court order, 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 the right to offer their use to citizens gratis and without conditions.
Citizens must have the right to connect any hardware to the network (following the carterfone principle), and to use the network for any purpose (for instance, for voip), and connect any other network (e.g. tethering) to networks without restrictions.

Infrastructure and Market Regulation:

Neutrality: Net neutrality must be guaranteed (Read Legal demands section D 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 the fields of telecommunications infrastructures and service provision should not be permitted. Citizens have the right to access more than one provider (public or private), and contracting one service should not require buying other products or services together with it. All citizens have the right to access the technology systems, products and infrastructures that allow free/libre access to the 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, systems that citizens are required by law to use, and systems whose use affects citizens’ fundamental rights, should always use free/libre software and open standards.
When a free/libre solution or open standard does not exist, the government or 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 overall.
The results of developments funded by public money should always be licensed under a free/libre license and all related patents should be released under royalty free terms and free of any other restriction.
Governments must guarantee non-exclusive, free/libre Internet access to every citizen, independently of his or her place of residence (at least to the level required to exercise his or her rights as a citizen and to take part in democratic processes and relate to 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 ceasing to use it and migrating to an alternative software.
Public accounting must make a clear distinction between the costs of software licenses, maintenance, support and service, apart from the hardware costs.

5. Transparency

Transparency in the enforcement process is required in order to avoid the breach of any fundamental rights (e.g. invasion of privacy, freedom of expression, etc.). This must include details on the authorities in charge of applying the law and on the reasons for the mandatory procedures. Governments should ensure, through a transparent and public process, the existence of systems that evaluate how the norms are applied. The results published by the independent experts hired to carry out 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 implement obligatory transparency audits.

We would be glad to endorse a “three-strikes system” for violators of the public right to be informed, if one is designed. 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, and the right to of attend meetings (including via the Internet) and read the meeting minutes. These minutes should include the names of the attendees, advisors and how each person voted, unless it is a secret ballot
Details on the persons that are making the decisions
Meaningful opportunities to submit comments to the norm-setting process. Comments from all contributors should 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 relating to any evidence that is presented to promote or justify policies, including their sources and their reliability. Independent evaluation or peer review 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 paid to creators as compensation for access to their works, and the impact on fundamental rights and freedoms.