What freedoms do people need to work with culture? Or, to phrase the question another way, what human rights exist as a result of the existence of culture?
These freedoms may be disparate. Art may not need the same freedoms as journalism. But different areas of cultural endeavour need access to each other to continue the conversation of culture. Art draws on literature and criticism, and vice versa. Even if one artist may not use advertising imagery another may, or a musician the first artist enjoys listening to (or is inspired by) may. This means that an individual may not benefit from specific instances of use of their work, but will benefit from the general ability to use others’ work. This is not to privilege society over the individual, rather it is to give the individual the broadest general freedom.
The concept of “use” of culture is contentious, and failure to understand it leads to bad conclusions being drawn. Playing a song on your iPod is use. Playing the same song on your guitar, singing the same song in the shower, writing down the lyrics, ripping the song from your iPod to your new MP3 player, using part of the song to illustrate a video and mixing samples from the song into a new composition are all use of the work.
It is important not to privilege “creative” uses of work over “consumer” uses of work. This is important because doing so harms consumers (the vast majority of the population) and it also actually harms “creators”. Creators are consumers too, their education and ongoing production are based on consumption of other work. And their leisure time will consist of consumption like anybody else. There are no creators who are not downstream of other creators, both as creators and consumers.
If we privilege creators over consumers then DRM and NonCommercial restrictions become acceptable. These harm creators directly, by preventing them from using work creatively, and indirectly, by depressing consumption of their work. And they harm consumers as well. Regard creators as a sub-group of consumers, creation as a form of consumption (even if only in the sense that an artist is their own first audience), and this generalisation informs the idea of use.
The boundaries of use that people seem to understand intuitively are those of Fair Use. Artists seem to understand Transformative Fair Use, and I will call the combination of Transformative Fair Use, peer to peer sharing and other modern generalisations of fair use Generalised Fair Use.
It is Generalised Fair Use that makes sharing songs on peer-to-peer networks the same as making tapes for friends. Research shows that kids regard noncommercial copying among friends as acceptible but commercial piracy as unacceptible. Artists often regard using fragments or transformed copies of work as acceptable but wholesale copying as plagiarism. Generalised Fair Use is best captured in a licence by Creative Commons’s Sampling Plus license, written to incorporate the ideas of the band Negativland.
If Generalised Fair Use is the generally held view of the boundaries of cultural use, Richard Stallman’s Four Freedoms are the generally held view of the boundaries of software use, or of the freedom of users of software.
Stallman’s Four Freedoms are broader than Generalised Fair Use, in particular they allow wholesale re-use and commercial copying. If we try to apply the Four Freedoms to culture rather than to software this may seem to clash with intuitive understandings of use of culture. It may seem to be a mis-match. Stallman himself does not advocate the Four Freedoms for all cultural works.
The Four Freedoms can be explained psychologically and historically. They can be seen as Stallman’s attempt to recreate his personal nirvana, the MIT AI Lab of the 1970s. This explanation is not a dismissal. The MIT AI Lab at that time, funded by the Cold War American military, was indeed an ideal model of computer usage. And the Four Freedoms are an ideal expression of the human rights that come into existence with the ready availability of computing machinery, they give the most general freedom to users of computers. There were no human rights before there were humans, and there were no computing freedoms before there were computers. But the historical emergence of a truth does not invalidate that truth.
Fair Use has its problems. Lawrence Lessig describes Fair Use as “the right to hire a lawyer”. Fair use is not experienced as a general right in practice, it varies in its application even between instances of the same use. This is a strong flaw for Fair Use. No rights are certain in practice, but Fair Use is so uncertain, and so dependent on being able to pay for access to legal defence, that it can be a hollow “right”.
The contradictions of Fair Use’s indirect effects make the case for Fair Use as opposed to The Four Freedoms less clear cut. It is possible to make money from copying indirectly under Generalised Fair Use if you are a P2P company or a blank tape manufacturer. You just cannot make money directly. It is possible to copy an entire work. You must simply do so non-commercially or in a form that doesn’t compete with the original.You can copy all of a work non-transformatively in some circumstances. It is rare that Fair Use gives equivalent freedom to the Four Freedoms simultaneously, but this creates more uncertainty and may not restrict other users any more at any given moment.
The Four Freedoms are a superset of Fair Use. Compared to Fair Use they offer clarity and certainty in the form of a generalised set of rights. They solve every specific problem that “orphan works” protesters, p2p protestors, fair use protestors, and other specific campaigners seek to address. And they solve it not with a long list of exceptions but with a single inclusive strategy.
Opponents of The Four Freedoms for culture generally cite reputation or monetary remuneration as harmful losses to copyleft. These are serious complaints and deserve serious consideration. ND and NC are responses to the potential of such losses. But ND users generally want stronger restrictions than even normal copyright, and have Moral Rights to defend them anyway. To enforce ND effectively would require draconian anti-user technology that cannot be less harmful than any loss of reputation. And NC does not prevent everyone else making money from licenced work. P2P networks and MP3 player manufacturers can profit handsomely from NC work. It is true that other record labels cannot re-sell it. But it is also true that the author cannot compete economically with their own work made available universally at no cost. NC is therefore a hollow victory at best. This is not to say that economic or personality rights are unimportant. It is to say that the way they are approached here is self-defeating and overly harmful to other rights.
The Four Freedoms are not without their problems, but these problems are more subtle than people taking quotes out of context or people not being able to get rich from a novelty single. Alternatives to the Four Freedoms give less general freedom, are unclear or unfair, or are self-contradictory and ineffective despite seeming less harmful in some special cases. The Four Freedoms are the only general enough and powerful enough model of human rights concerned with the freedom to use creations of the mind that we have today. In as much as any discovery of human ethics can be, they are true.