While around the globe copyright critics advocate the adoption of Creative Commons licenses as a way for enabling remix and non-commercial file-sharing, in Europe a second solution is debated more and more intensively: a so-called “culture flat rate”. Internet users should be mandated to pay a fixed amount per month and in return be allowed to non-commercially remix and share copyrighted files. Of course, differently to the private regulation approach of Creative Commons, such a “culture tax” would require legislative changes.
Technically, most countries already have a minor form of such a culture tax called private copying levies: a special tax or levy is charged on purchases of recordable media – in some cases also on recording or copying devices – and then redistributed to rights holders via copyright collectives. Regularly copying levies are justified as being a compensation for limitations and exceptions to copyright such as the right to make a private copy (see, for example, the US Audio Home Recording Act).
Compared to other aspects of copyright regulation, which are increasingly harmonized across jurisdictions in the course of international treaties such as the WTO’s TRIPS agreement, copying levies still vary significantly from country to country – both in terms of the types of devices and recordable media covered and in terms of levy levels. And these differences are far from being diminished, as recent developments in the neighbouring countries Germany and Austria illustrate: while in Germany the Association of Computer Manufacturers and a consortium of different collecting societies agreed on a new copying levy on any computer with a recording device (German press release), the Austrian supreme court of justice ruled against a similar levy (Austrian supreme court ruling, German).
In his contribution (PDF) to last year’s Free Culture Research Workshop at Harvard’s Berkman Center, the German media sociologist and activist Volker Grassmuck, argues in favor of a “Culture Flat-Rate to end copyright extremism and bring information freedom and remuneration for authors to the Internet.” He describes the model as follows:
“In 1965 the German lawmaker acknowledged that privat copying cannot be prevented, therefore it needs to be legalised, ensuring remuneration to creatives through a levy on recorders and recordable media […]. In analogy, the Culture Flat-Rate introduces the legal permission to copy and make available published works under copyright by private persons for non-commercial purposes, and in return a monthly levy is paid by broadband Internet users, collected by ISPs and collectively management by the communities of authors, i.e. collecting societies.”
How serious debates about a lump-sum levy have become even in countries with traditionally strict copyright regulation such as Germany has been demonstrated by the Association of the German Music Industry, which published a policy paper (German PDF) presenting “ten arguments against the culture flat-rate”. These are the following (own translation):
- The culture flat-rate is unfair as consumers pay for something they are not using
- The culture flat-rate undermines the economic base especially for the new digital business models
- The culture flat-rate is a disproportionally high burden for all consumers and disadvantages the socially deprived
- The culture flat-rate requires the set-up of a gigantic bureaucracy
- The culture flat-rate flattens culture
- The culture flat-rate takes away from creators and artists the right to control the usage of their works
- The culture flat-rate is inconsistent with the economic principles of our society
- The culture flat-rate is inconsistent with international law
- The culture flat-rate devalues intellectual property
- The culture flat-rate raises more questions than it answers
This list, of course, is highly partisan and has a very narrow concept of creators in mind. Without going into too much detail, many of the points have to and can easily be put into perspective: Arguments #1, #3 and #7 also hold for existing private copying levies, which creators and their collecting societies continuously strive to expand. The latter’s “gigantic bureaucracy” (#4) is also already in place. Whether a culture flat-rate really “flattens culture” (#5) is both a normative and an empirical question. While, in this context, the paper argues a culture flat-rate would reduce economic incentives to invest in niche products, large-scale empirical studies (see, for example, Kretschmer and Hardwick 2007) regularly show that (the majority of) niche artists receive(s) little to nothing from classic copyright-based business models. This is what in turn significantly delimits the field of application for argument #6. Whether a devaluation of intellectual property (#9) would really harm creative production and expression or rather foster new (collaborative) forms of creativity such as remix and mash-up is more of an open question than an argument; similarily, bemoaning the number of questions raised by a culture flat-rate (#10) does not mean that there are no feasible answers available for them (see, for example, Grassmuck 2009; via). And while a culture flat-rate could indeed harm new digital business models (#2), this is ironically the field where the industry incumbents dominating the Association of the German Music Industry have constantly failed over the past decade – even without a culture flat-rate. Business models using alternative copyright licensing such as Magnatune or Jamendo, on the other hand, are perfectly compatible with a culture flat-rate covering only non-commercial usage.
This leaves us with #8 as the only straight-forward argument in the list: a culture flat-rate is incompatible with extant international copyright regulation as put forward in the respective WTO and WIPO treaties. For proponents of culture flat-rates, these two organizations are therefore the primary arenas for advocacy.