OII Guide to Intellectual Property Rights for Electronic Information Interchange

This guide seeks to highlight some of the key points relating to the application of copyright and intellectual property right (IPR) law to electronic information interchange. In particular it seeks to indicate the underlying principles on which national copyright and IPR legislation are based.

Note: This guide does not provide an authorative source of information on national copyright laws. Neither is this guide intended to influence the future directions of laws relating to the control of IPR. Attention is drawn the work of the European Commission's Legal Advisory Board for the Information Market in promoting the development of IPR legislation.

As the OII conference report on the Workshop on Technical Mechanisms for IPR Managementpointed out, "The advent of digital technology, and in particular multimedia applications, is transforming the nature and possibilities of IPR management:

• the multimedia medium has the physical capacity to store a vast amount of information in a very small space. The multimedia producer, therefore, is in a position to pack into his work materials from a multitude of sources, each of which requires copyright authorization from one or more specific rights holders; moreover, the rights holders concerned may be individuals and/or collecting organizations relating to works of different genre (this multiplies and compounds the traditional problem of identifying all the persons and/or organizations who are empowered to issue authorization for each of the uses desired)
• transferring a work from its traditional medium to a digital medium changes the work's potential circulation. Once the work has been digitized, it can be copied, duplicated and transmitted at a minimal cost without any derogation of quality
• transposition of work in a digital medium can transform the act of copying into cloning (the 'perfect copy'). This could potentially lead to uncontrolled and uncontrollable uses
• the concept of intangibility of the work, which is based on the rigidity of its physical medium of communication, is potentially threatened by digitalization which enables the signal to be processed in many different ways. Specifically, the interactive nature of emerging multimedia applications enables the user to intervene directly in the content of the works.

Digital technology, therefore, raises fundamental issues concerning IPR and, more specifically, copyright -- the legal foundation on which the cultural/creative industries are built. These include:

• protection of the author and stimulating creativity, especially the recognition of the special link between the author and the work as expressed by the moral right (the work as an expression of its creator's personality)
• protection of investments, where the cultural/creative industries' financial returns are traditionally dependent on their control over the circulation of the medium and the commercial necessity of acquiring an 'original' so as to have a suitable medium for the work."

The workshop identified the need for the development of standards to provide:

• a generic tattooing definition, which should include ID, copyright, possible usage and condition for use. The technologies should be indelible, unmodifiable (but perhaps updatable) and "follow" the information when copied. There should also be a natural progression of standardisation efforts.
• a "black box" to be embedded in any hardware which processes digital information. The black box should identify protected information, prevent unauthorised use, and enable fee clearance. It should also provide a legal proof of the transactions (trusted notarisation of events). The black box solution may require enforcement by law.
• means of payment. This could be a smartcard with enriched functionality, e.g. the relay of transaction details for off-line transactions, identification of user categories having privileged access to certain information.
• the introduction of Electronic Copyright Management Systems (ECMS), for which new standards may not be needed; existing standards such as EDI and Electronic Funds Transfer could be used. Systems need to be compatible and interoperable to allow cross-border applications.

At present there are no agreed standards that provide these functions, though there are a wide range of standards for multimedia object identification, as listed in the Library Information Interchange Standards section of the OII Standards and Specifications List. The Digital Object Identifier specification is expected to play a vital role in providing navigatable Internet links between identifiers and rights owners.

As Dr Daniel Gervais, Director of International Relations at Copyright Clearance Center Inc,pointed out in the Copyright Management sessionat the ANSI IISP Meeting on Safe Electronic Commerce held in Arlington, Virginia on 10th - 11th March 1998, rights holders need to be prepared to deal with a much higher volume of transactions, more atomized rights and more frequent exchange of rights. They, therefore, need to maintain a very precise and up-to-date rights information database, which should plug into any on-line sale or delivery system.

As there are currently no agreed standards in this area this guide currently concentrates on the laws that must underpin any future technical solutions developed for the electronic protection of intellectual property rights. It has been split into the following sections:

• The Berne Convention
• The WIPO Copyright Treaty
• Protection of audiovisual data
• The current situation in Europe
• The current situation in the US

The Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works, (commonly referred to as the Universal Copyright Convention) which was approved in Paris on 24th July 1971, and subsequently amended on 28th September 1979, forms the basis for most European copyright and intellectual property right legislation.

The following clauses have particular significance to the rights of readers of documents obtained over the World Wide Web:

Article 8
[Right of Translation]

Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorizing the translation of their works throughout the term of protection of their rights in the original works.

Article 9
[Right of Reproduction: 1. Generally; 2. Possible exceptions; 3. Sound and visual recordings]

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Article 10
[Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author]

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.

Article 10bis
[Further Possible Free Uses of Works: 1. Of certain articles and broadcast works; 2. Of works seen or heard in connection with current events]

(1) It shall be a matter for legislation in the countries of the Union to permit the reproduction by the press, the broadcasting or the communication to the public by wire of articles published in newspapers or periodicals on current economic, political or religious topics, and of broadcast works of the same character, in cases in which the reproduction, broadcasting or such communication thereof is not expressly reserved. Nevertheless, the source must always be clearly indicated; the legal consequences of a breach of this obligation shall be determined by the legislation of the country where protection is claimed.

(2) It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public.

The WIPO Copyright Treaty

The Berne Convention forms the basis for the, as yet unratified, WIPO Copyright Treaty, which was agreed at a Diplomatic Conference on Certain Copyright and Neighbouring Issues held by the World Intellectual Property Organization in Geneva on 23rd December 1996. This treaty makes it clear that "Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such."

When these ideas and concepts are captured in the form of a computer program, however, the treaty specifically states that "Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression."

With respect to data used by computer programs the Treaty states:

Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation.

Authors of (i) computer programs; (ii) cinematographic works; and (iii) works embodied in phonograms, as determined in the national law of Contracting Parties, shall enjoy the exclusive right of authorizing commercial rental to the public of the originals or copies of their works.

With respect to distibution of electronic data over communications networks the Treaty makes it clear that "authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them."

Under the terms of the Treaty countries adopting the proposed rules will be required to introduce legislation that makes it illegal to:

(i) remove or alter any electronic rights management information without authority;

(ii) distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

Protection of audiovisual data

Other WIPO agreements that may be pertinant to the distribution of multimedia information include:

• Rome Convention, 1961 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (26th October 1961)
• Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (29th October 1971)

WIPO has prepared a Treaty relating to the above Conventions that is still awaiting ratification:

• WIPO Performances and Phonograms Treaty

In particular is should be noted that Article 10 of the Rome Convention states that "Producers of phonograms [any exclusively aural fixation of sounds of a performance or of other sounds] shall enjoy the right to authorise or prohibit the direct or indirect reproduction of their phonograms."

Article 15 qualifies this by stating that "Any Contracting State may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Convention as regards: (a) private use; (b) use of short excerpts in connexion with the reporting of current events; (c) ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; (d) use solely for the purposes of teaching or scientific research."

Unfortunately the Rome Convention also states that "once a performer has consented to the incorporation of his performance in a visual or audio-visual fixation, Article 7 [concerning rights to object to reproduction or broadcasting] shall have no further application."

The currently unratified Treaty includes an Article 10 that reads:

Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.

A similar right is defined for producers of phonograms.

The current situation in Europe

Harmonization of national legislation is still required before consistent rules will apply across Europe. In December 1997 the European Commission published a Proposal for Directive on Copyright and Related Rights in the Information Society. In particular this proposal places "particular emphasis on new products and services containing intellectual property (both on-line and on physical carriers such as CDs, CD-ROMs and Digital Video Discs)". The proposed directive will "harmonise rules on the right of reproduction, the communication to the public right (including making protected material available on-demand over the Internet), the distribution right and the legal protection of anti-copying systems and information for managing rights".

A number of objections have been raised to this directive, especially from the library community. EBLIDA (European Bureau of Library, Information and Documentation Associations) issued a detailed report on the draft, and the ECUP (European Copyright Users Platform) have made similar points

Existing EU directives relating to this area include:

• Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases
• Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights
• Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission
• Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs

Since 1st July 1997 all EU member states have been bound by Council Directive 93/98/EEC to extend copyright protection of literary and artistic works, including artistic photographs, for a period of at least 70 years after the death of the author. For cinematograph productions the 70 year period starts with the death of the last survivor of the principal director, the screenplay author, the author of the dialogue or the composer of the music. Performers rights expire not less than 50 years after the date of performance. Posthumously published works published more than 70 years after the authors death are only protected for 25 years from the date of first publication. The minimum term of protection for critical and scientific works are 30 years from date of publication.

Most European countries have requirements for the deposition of printed works for which copyright is claimed in one or more national libraries, but do not have facilities for the capturing of electronic publications for which copyright is claimed.

The Nordic countries developed, in 1991, the concept of using an Extended Collective Licencethat contains the following elements:

• The organization and the user conclude an agreement on the basis of free negotiations.
• The organization has to be nationally representative in its field.
• The agreement is by law made binding on non-represented right owners.
• The user may legally use all materials without needing to meet individual claims by outsiders and criminal sanctions.
• Non-represented right owners have a right to individual remuneration.
• Non-represented right owners have in most cases a right to prohibit the use of their works.

A number of European Commission sponsored projects are currently assessing various proposals for copyright protection of electronic data, including:

• Imprimatur
• COPEARMS -- Co-ordinating Project for Electronic Author's Rights Management Systems
• CITED -- Copyright in Transmitted Electronic Document (completed project)
• COPICAT -- Copyright Ownership Protection In Computer Assisted Training(extends CITED)
• OSPREY -- Open Structure for Protecting Rights ElectronicallY
• CopySmart -- CITED-based multi-media IPR management on cost effective smart device
• AMIDE -- Advanced Multimedia Information Dissemination Environment.
• TALISMAN, Tracing Authors rights by Labelling Image Services and Monitoring Access Network
• MUSE, Mutlimedia Networks, which includes research and development of digital media management systems in the European music sector including methods and systems for embedded signalling and encryption
• OKAPI, Open Kernel for Access to Protected Interoperable Interactive Services.

The Imprimatur project has published a draftBusiness Model which can be used as the basis for developing Electronic Copyright Management Systems. This introduces the concept of the Imprimatur Common Reference Set (ICRS), a simple, very generic, entity-relationship model, based on four roles or actors (Creator, Publisher/Producer, Intermediary, User) and three flows (Rights, Information, Payment). The main active parties in the business model are the creator, the creation provider, the rights holder, the IPR database, the unique number issuer, the media distributor and the purchaser.

It is assumed in this model, as with other existing ECMS models, that payment is performed online in an electronic form, either by means of digital money transfer methods (electronic cash) or by means of secure electronic transaction protocols(credit card payments) such as SET. For many types of casual use of copyright (e.g. a single copy of a single article) the overhead costs are such that credit card payment is not realistic unless some form of agglomeration process is provided whereby payments are only made when a certain threshold of purchasing has taken place.

If payment is performed using electronic cash, then a 'bank' issues the money tokens to the payer and accepts them from the payee. This presumes that both the payer and the payee have access to the same bank, and that the forms of electronic cash they use are interchangeable. For international trading this is rarely the case today. Until there are better mechanisms for conversion of digital money tokens from one bank's system to another, or even between the different currency units used by the same bank in different countries, the full potential for electronic trading of IPR will not be met and ECMS systems are likely to be constrained to situations where multiple copies are required in a single country, or in a group of countries sharing a single currency. It is anticipated, therefore, that the introduction of the Euro as a common trading unit within Europe will do much to facilitate the development of ECMS systems, particularly if a Euro-based digital money token could be introduced that is accepted by all European banks.

In carrying out their research the Imprimatur team noted that "privacy is a fundamental human right" and that a necessary consequence of that was that "in society the default should be privacy rather than no privacy". They determined that "A reader should only be identified in a transaction if it is required to be so by a specific law" and "When a reader is presented with a screen demanding personal data for further access the fact that he refused to go pass that screen should not be recorded". This has important consequences for ECMS systems. By default no such system should collect or maintain information that is attributable to a specific source without the specific (as opposed to implicit) permission of that person. Imprimatur introduces the concept of aprivacy enhancing technology that will mask the true identity of users from the system and replace this with an authorized pseudo-identity,

A European Copyright Users Platform has been set up to provide a forum for European discussions relating to IPR and copyright.

The current situation in the US

On 16th December 1997 the US government published a No Electronic Theft (NET) Act. This act defines as a "Criminal Infringement":

Any person who infringes a copyright willfully either--
(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.

These rules apply in addition to existing US Copyright Act (as amended on 19th October 1976) that embodies the concepts of the Berne Convention, and many aspects of the WIPO treaty. The US requires that copyrighted documents be deposited at the Library of Congress. The US Copyright Act has chapters that specifically relate to the protection of semiconductor chips, digital audio recordings and sound recordings and music videos.

The following laws have been drafted to update the US Copyright Act to align it with the WIPO Treaty:

• Digital Era Copyright Enhancement Act
• Digital Copyright Clarification and Technology Act
• WIPO Treaties Implementation Act
• On-Line Copyright Liability Limitation Act
• Collections of Information Antipiracy Act

For a US perspective on the role of ECMS refer to the paper by Dr. Gervais, Director of International Relations at the US Copyright Clearance Center (CCC), on Electronic Copyright Management Systems (ECMS) from Rights Trading to Electronic Publishing. CCC has also prepared some Guidelines for Creating a Policy for Copyright Compliance. CCC maintains a list of useful resources on US and international copyright law, which includes links to all the members of the International Federation of Reproduction Rights Organisations (IFRRO) and other relevant organizations.

This information set on OII standards is maintained by Martin Bryan of The SGML Centre and Man-Sze Li of IC Focus on behalf of European Commission DGXIII/E.

File created: April 1998