However, over the last several months there are have been two separate calls for a Digital Bill of Rights. A consumer-oriented one by a well-known blogger (that has won some favorable notices from consumer watchdog and digital democracy groups), and a labor-oriented one by the National Writers Union - America's union for freelance writers of all kinds. Which is unfortunate because the two calls stem from similar public-spirited impulses, and address two related problems of the digital age. But at the moment, the two efforts are operating independently of each other, and are likely not yet aware of each other.
This is at least partially because the National Writers Union of 2008 is a shadow of its former self - having dropped from over 7000 members several years ago to under 2000 today - due to a combination of the bad state of the publishing industry, corruption inside the company that formerly provided union members access to health care, the resulting loss of members that had relied on the union health plan, and various related internal crises. Followed by a voluntary trusteeship (takeover) of the union by its parent union the United Auto Workers. So it's not very easy for the NWU to mount and sustain any kind of national campaign at the moment.
Yet this state of affairs also exists because the NWU focuses its political work on what's best for its membership - like any good union. It has therefore focused its NWU Digital Bill of Rights [link to PDF document] on changes that are most likely to benefit writers. The union has seen its members ability to make a living as writers destroyed over the last 20 years by the rise of the internet as a major distribution medium for written material. Publishers have come to insist on "galactic rights contracts" that force writers to provide all rights to work they sell them for one (generally small) lump-sum payment. Which is a huge change from the traditional interpretation of copyright being "infinitely divisible" and allowing writers to get one payment for 1st North American Serial Rights, one for Anthology Rights, one for Radio Rights, one for French Translation Rights, and so on.
Even when a writer doesn't sell "galactic rights" to a work, they will often find work that they've sold to one entity reproduced online and picked up by other publishers without permission - some, like bloggers, operating on a non-profit basis, but many operating for-profit businesses and simply publishing copyrighted material at will in the usually correct supposition that no one can really stop them from doing so.
At the same time, new rights templates built on copyright like "Creative Commons" licenses have tried to keep copyright current for the digital age, and help writers (and other creators) clarify who can make use of their online work for free and who has to pay. But this development too is looked upon with suspicion by some (though not all) NWU leaders as a stealth mechanism to undermine copyright.
So last February, the NWU released a Digital Bill of Rights constructed to enumerate what legal reforms will be necessary to allow writers to protect their copyright on the internet and have some hope of making a decent living from their chosen trade.
The salient section follows here (feel free to read the first couple of paragraphs and skip over the rest)
"The NWU shall champion the principle that writers’ greatest assets are ownership of our intellectual and artistic property, a constitutionally protected right.
"DPs [Digital Publishers - Ed.] are legally bound to request the writer's permission to distribute or license his or her work. DPs must contact the writer or an authorized collective licensing organization and sign a contract with the rights' holder before they begin to distribute or sell that work.
"Rather than offer vague, open-ended contracts, DP contracts must delineate which specific rights are bought for a specific amount of money or other compensation and licensed for a specific length of time.
"Writers who find that DPs have copied or distributed substantial portions of their work in any media without permission, compensation, or attribution in order to generate income may demand that the DP remove the work from their files and cease reproduction of it.
"If a DP sells or uses a work to generate income from advertising, subscriptions, downloads, or any other means of commercial gain, writers must receive a fair and just share of the revenues generated from their work. If the DP does not provide the writer a fair price and a fair share of revenues generated from the work, or if the DP steals the writer’s work outright, the writer may seek redress through civil or criminal penalties.
"The right of writers to limit the duration of licenses must be respected. At the end of the license period, all rights revert to the writer.
"The right of writers to offer nonexclusive rights shall be respected. DPs must sign a new contract with the writer for any set of additional rights. Furthermore, each set of rights requires an additional fair fee.
"Noncommercial DPs must give the writer the courtesy of requesting permission to reprint all or substantial portions of a document. Reproduction of the material must contain full attribution to the writer as well as a link to the writer's website or email address, if the writer so wishes.
"Government agencies and courts must vigorously enforce existing copyright laws and treaties signed by the United States that uphold writers’ rights.
"If libraries or educational institutions purchase subscriptions to digital journals, a portion of the subscription fee collected by the DP shall be shared with the writers. Libraries must be able to permanently purchase annual subscriptions to digital journals for a single, reasonable fee rather than having to annually repurchase access to past-year volumes.
"Writers may continue to quote or otherwise use small portions of copyrighted material for creative purposes as long as full attribution is provided in accordance with the traditional fair use principle."
This document does all creators a service by highlighting positive aspects of existing copyright practices while laying out proper practice for noncommercial publishers (like your pals at Communicate or Die, for example) to follow when making unpaid use of copyrighted material. However it also spells out the kind of enforcement that the NWU expects out of the U.S. government in what heretofore has been the Wild Wild West of the internet.
In this it shares a common theme with the other Digital Bill of Rights - first floated in August by Erick Schonfeld, founder of the popular tech blog Tech Crunch. Schonfeld faces off against some of the same corporate forces on the internet - publishers - but is clearly also aiming his rhetoric at the music industry and the telecoms. All of these corporations have been trying to preserve their control over the transmission of digital information that they offer up for sale. Either in the form of books or records or videos in the case of publishers and the music industry, or in the form of access to internet content in all forms in the case of the telecoms.
Schonfeld is therefore making a Free Culture Movement argument that people should have the right to share digital copies of books, records or videos that they acquire legally with other people if they don't charge for them (just like we've all given physical copies of these items to friends of ours), and making a Net Neutrality argument that telecoms like Verizon and Comcast shouldn't have the ability to stop entire classes of files (containing books and records and videos) from transmitting across their networks at normal speed (or at all). Or to charge extra for users to access content coming from outside their networks - in effect, killing the universal access that the internet is built on.
So his Bill of Rights includes the following
"The Right to Use and Reuse Content: Consumers know that digital copies of songs, words, and videos are qualitatively different than physical copies, yet copyright law treats them the same way. When the economics of scarcity no longer apply, consumers start to behave differently. They copy and reuse content in unforeseen ways. The pendulum has swung so far that normal consumer behavior has now been criminalized. The concept of fair use needs to be updated and clarified, while still balancing the fundamental right of copyright holders to profit from their creations.
"The Right To Control Digital Property On Your Own Device: Possession may be nine tenths of the law, but digital devices don’t follow that rule. When it comes to digital property, who owns what is ill-defined. This can become especially complicated when content is tied to a specific device. If I download a digital book to my Kindle or an app to my iPhone, Amazon or Apple (to pick on them again) have the ability to pull any content from my device without notice or permission. Even if I’ve paid for the content in question. Copyright law and DRM technologies are so intertwined and confused that both consumers and companies could benefit from clearer rules of the road.
"The Right To The Free Flow Of Information: Internet service providers, especially those who benefit from public rights of way, should not be allowed to discriminate against information by data type. Debates about Net Neutrality can get bogged down in discussions about content filtering, packet prioritization, and backbone peering rules. But the issue here is basic access to the Internet and all the data that it contains. Data is information and artificial limits on what kinds of data can flow through the Internet’s pipes can amount to a form of censorship.
"The Right To (Some) Privacy: For the most part, the expectation of privacy is dead on the Web. But the privacy of certain types of information (health, financial) will always need to be protected. Federal guidelines for how to protect consumer data is preferable to a hodgepodge of industry and state regulations that are currently failing us. (Who wants to book a room at the Best Western?) Privacy laws are also inconsistent in the physical and digital worlds. The Bork law, for instance, makes it illegal for physical video stores to share my rental records, but iTunes or Amazon could sell my digital video or music purchases without running afoul of the law.
"The Right to Control Your Digital Identity: And what happens when the “content” in question is your own digital identity. Who owns that? The answer should be that you do. Congress is certainly interested in this issue, and wants to make sure that online advertising networks don’t abuse their possession of your identity data to bombard you with ads. In fact, Google and Yahoo, have been making preemptive moves in an attempt to stave off regulation. But politicians may want to take a closer look at the EU’s privacy directive, which has been in effect for more than decade. Citizens should be able certify that the digital identity associated with their name in a given database is in fact theirs and to revoke access to that identity information on a case-by-case basis."
It seems to me that the two documents would be much more powerful if they were merged - because the NWU probably won't have any serious arguments with Schoenfeld's document, or vice versa. The two documents already overlap in one key area, Fair Use Doctrine - the idea that people have a right to make limited noncommercial or educational use of copyrighted material without requiring permission from the rights holders. In fact, the NWU document essentially fulfills the directive of the Schoenfeld document that "fair use needs to be updated and clarified, while still balancing the fundamental right of copyright holders to profit from their creations."
So I'm going to go ahead and suggest that the creators of the two documents start discussions to merge the documents into one Digital Bill of Rights, and think about a unified campaign for its enshrinement in federal law.
At this point, viewers will be asking "why does this matter to the labor movement?" Two reasons. First, it benefits labor unions to have a such rights in a number of ways - the most obvious of which is that it will point the way to clarifications of copyright regulations that will legalize gray area practices that labor websites are as likely to participate in as anyone else like, for example, copying popular music from the internet for use in a union educational video without worrying about having the website shut down and the union sued by the music industry.
Second, a Digital Bill of Rights will help unions stake out a clear position on Net Neutrality - a key way to thwart corporate control of the internet in my estimation, if properly executed. This will, however, require the Communication Workers of America to be convinced to drop their opposition to Net Neutrality - based on their seeming conviction that helping Verizon defeat Net Neutrality initiatives is the best way to ensure large numbers of new unionized workers who would be hired to build out Verizon's high-speed FIOS network on a national scale to compete directly with non-union cable companies like Comcast.
"Net neutrality" - to directly quote one of my earlier Communicate or Die blog posts - "is the idea that the best internet is one built with "big fat dumb pipes" that any organization, institution or government entity can plug into at the top available speed. And that, critically, every government or business entity that runs a network must plug into all the other networks. In some enlightened countries, these big pipes are funded and overseen by the government in the public interest - not by corporations in the interest of making profit off of what should be a public service. There's good reason to think that allowing telecoms to take over management of the Internet - which was, after all, created by a massive public effort in the 1960s and 1970s in the U.S. - has seriously slowed down the development of our national internet infrastructure."
If CWA can be convinced that defending the principle of Net Neutrality is actually good for union jobs in the long run, then they can support a unified Digital Bill of Rights. If the labor movement supports such a document it will put us in a very progressive place on some of the key policy issues of our era, and will ally us with some large strong digital rights organizations like Free Press, the Center for Digital Democracy, Common Cause and the Consumers Union.
Should all this come to pass it can help the NWU put some real teeth in any organizing campaign it may mount to codify a creator-centric copyright for the digital age. It will also put the NWU clearly in the anti-corporate corner where it belongs and not make it appear to be merely a handmaiden for the some of the same corporations that even now are hunting down teenagers and trying to imprison them for the "crime" of sending copies of music files they've bought legally to their friends. And that even now are finding new and exciting ways of screwing creators out of the ability to make any living from their work at all while maintaining their tight centralized control over distribution of authors works - rather than fulfilling the promise of the internet to put distribution firmly in the hands of the creators, and cut out corporate middlepeople wherever possible.
I'll stop here before this essay turns into a book, but I'll be especially interested to hear what our viewers think about this one.
Jason Pramas, aside from managing the Communicate or Die labor tech blog for Prometheus Labor Communications, is also a working journalist and Steering Committee member of the National Writers Union/UAW Local 1981 - Boston Chapter. He was not an NWU member when their Digital Bill of Rights was drafted, but is most keen to participate in further deliberations on the document along the lines sketched out in the essay above.