Crowdsourced Agenda for Free Expression

Respect Creators 3: Ensure reasonable penalties for copyright infringement – those that prioritize compensation for creators


When asked about penalties for copyright infringement, a majority of respondents to the question in the “Our Digital Future” tool (i.e. 71.2 percent of 10,245) selected either payment of a small fine (50 percent) or a warning and instruction about the laws surrounding copyright (21.2 percent). Less than 8 percent selected harsher penalties, like disconnection from the Internet (1.6 percent) or a fine ranging from $250 to $15,000 (5.5 percent). These results suggest that Internet users favour copyright regulations that emphasize education and compensatory damages – most Internet users we engaged are in favour of consequences for copyright infringement (including warnings or notices that, as we will demonstrate in Recommendation Two of this report, are effective at preventing repeat infringement). But, unsurprisingly, they would like to forego unnecessarily punitive systems in favour of reasonable penalties.

Though we’ve focused in this chapter mainly on the needs of creators in the cultural industries - i.e. musicians, film- makers, etc. – the detrimental effects of copyright policy on knowledge creation are also strong cause for sober second thought before pushing ahead with excessively punitive copyright regimes, like that envisioned in the TPP. In 2013, in response to the suicide of Internet freedom advocate Aaron Swartz,51 hundreds of academic authors published over 1,500 links to their own copyright-protected material, in an awareness-raising act of civil disobedience.52 The fact that these authors were opening themselves up to penalties for copyright infringement highlighted the ways in which the current copyright system for digitized materials does not serve knowledge creators, who often do not retain a license or rights to share their own works.53 In fact, these creators must then pay archives simply to access the material that they produced.54 The disjunct between the creator and the rights- holder, who are often not the same person or entity, provides yet further justification for eschewing highly punitive systems – these could punish creators, like academic authors, for sharing their own work.

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As the Authors Alliance argues, these types of authors, and others who write not just for pay but also to make their work available to the broadest possible audiences, have not been well served by misguided efforts to strengthen copyright. These efforts have not resulted in meaningful financial returns to most authors, and have “unacceptably compromis[ed] the preservation of our own intellectual legacies and our ability to tap our collective cultural heritage.”55 We therefore join with our crowdsourcing participants in insisting that there be reasonable penalties for sharing copyrighted materials – this means civil, not criminal, liability, and civil liability geared towards compensation for culture and knowledge creators, not Big Media companies.

We can see clearly in the case of academic publishing that copyright regimes are not designed with penalties that compensate creators in mind. In fact, as with three-strikes rules and automated takedown systems, creators can become the targets of copyright infringement penalties that unnecessarily impede the sharing of knowledge and culture. As Philippe Aigrain points out, “the effect of the recent evolution of copyright law, in the real world, is to concentrate power not in the hands of authors and artists, but in those of the stock owners of copyright.”56

Insisting that penalties should prioritize revenue for creators also has clear implications for copyright terms, as copyrights that extend beyond the life of the creator clearly have no impact on the compensation the creator receives. Therefore, as we will argue in the next section, these should be abolished in favour of a richer public domain of cultural works for creators to reference and remix. As participants in the “Our Digital Future” project suggested, a copyright regime that respects creators will be one that prioritizes reasonable penalties for infringement combined with maximal freedom to share, and to participate in creating an increasingly global digital culture.

Internet Voice
“Free expression is the glory of the Internet and the right of the people. As an author, I have a website with extracts of my books marked copyright. That’s enough. We display our work for people to see. If someone chooses to disregard this, they are outnumbered by the many who honour the system. No decisions of this magnitude should be negotiated secretly, nor should access be denied to the Internet. It is unreasonable to expect service providers to censor content and remove websites. Please listen to the people.”
– June Birch, United Kingdom