The Digital Media Project

Source

Philip Merrill

Title

Phil's questions

No.

040125merrill01

 

Sorry I took so long to answer your comments to my questions. Because of my need to organize your comments, I've combined everything and so the repeated sections are lengthy. My most recent comments are introduced with "JAN. 25 PHIL > "

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PHIL

 These assorted odd questions occur to me and I am soliciting opinions and comment.

 Question 1: At http://www.chiariglione.org/contrib/040102chiariglione01.htm The separation of 11 TRU of attribution & 23 TRU not to be miscredited as the author (misattribution) is too atomic for my taste, although these are separate TRUs. I think I'd be more comfortable seeing 23 included under 11 (I volunteer to write this by the way). Agree/Disagree?

LEONARDO

 We can merge the two, but what about having a merging phase later on?

CRAIG

 I can agree if you also throw in the third part, "Paternity".  Three sides of the same prism.

 JAN. 25 PHIL >

Craig, you are quite right as to the connection. However I have now decided that the attraction of keeping these separate is the potential digital support for attribution & misattribution. I feel that although they could be (and traditionally are) merged as far as discussing the law, they deserve separate templates to highlight their distinct properties as functionalities to be designed. So I favor no change to these and answer my own question "Disagree".

 * * *

PHIL

 Question 2: I propose that we add TRU reproduction/economic exploitation/distribution (Right holder & Middleman - although economic exploitation is the only one inherently belonging to Middleman, the other two are often contractually assigned or transferred) Once again, this gets into the atomic issue, since there are a multitude of TRUs these could be further reduced to. Should this TRU be 3 TRUs?

LEONARDO

 This looks kind of obvious, but I suspect there are parties who are keen to have it spelled out :-)

 I suspect that, for the purpose of deriving requirements, this is 3 TRUs

CRAIG

 First of all, add it.  This fills what has been a glaring hole for some time.  ;-)

 But as to your question, yes and no.  I would say that technical support for this TRU may have three components, or maybe 20, or maybe just one, who knows so, no one will until we get to that point.  If you are going to write it, I say start it, if it ends up being a multi-tome afair, split it up but if not, I see no need to get that atomic with this TRU at this time.

 That said, this obviously appears to have three components but their grouping is logical so leave it as I agree to roll the three attribtution TRUs into one.  On the other hand, sometimes what looks like a single TRU could actually be a number of other TRUs hiding out and combined to seem to make one.  If that were the case, splitting, if possible, would seem the more benificial.

 But, there are cases where splitting causes problems.  These problematic cluster TRUs could actually be created/supported by combining other TRUs in other ways.  An example, "TRU for persistant access". Depending on the exact application that it is used in, it could be achieved in different ways.

 To make a long story short, I don't think it matters either way at this point because we are not anywhere near exercising/testing the TRUs we do have let alone the TRUs we hope to get from the TRU workshops.  We are still in the collection and preliminary documentation phase.

MARTIN

 Concerning economic exploitation I am not so sure. In German copyright law the Right of Exploitation inherently belongs to the author [1]. Exploitation includes reproduction and distribution.

 Moreover, there are fields of usage where widespread access and use of a work is more important than instant economic exploitation.

 Publishing in Science is an example [2].

 Since the Germans appear to be experts in the field of categories [3] and digital media [4] perhaps the table of contents of our copyright law could serve as a clue to identify and structure more TRUs of the Rights Holders [5] ;-)

> [1] http://www.iuscomp.org/gla/statutes/UrhG.htm#15

> [2] http://www.aaas.org/spp/sfrl/projects/epub/finalrept.html#recommendation

> [3] http://www.paul-klee-gymnasium.de/projekte/ethik13/kant/pics/kant.jpg

> [4] http://www.in.gr/musiccd/ixos/images/kraftwerk.jpg

> [5] http://www.iuscomp.org/gla/statutes/UrhG.htm

AND NOTE MARTIN'S helpful answer to my follow-up question about French IP law online and esp. moral rights

[1] - http://www.legifrance.gouv.fr/html/codes_traduits/liste.htm

[2] - http://www.legifrance.gouv.fr/html/codes_traduits/cpialtext.htm#Chapter%20I:%20Moral%20Rights

JAN. 25 PHIL >

I favor splitting these and also adding another, so I propose adding

TRU reproduction  (Right holder)

TRU economic exploitation (Right holder)

TRU distribution (Right holder)

TRU contractual commerce (Right holder & Middleman & End user)

As you can see, I have taken Martin's comment to heart about economic exploitation belonging to the right holder. My proposed TRU contractual commerce is intended to answer the huge question of why the U.S. resists the doctrines of paternity and integrity as moral rights. So I would write up economic exploitation along traditional international lines and make contractual commerce a broad umbrella encompassing many important issues for the value-chain - somewhat distantly related to TRU political freedom as having the same scope and reflecting important qualities of a nation and culture. Clearly because of big business being able to coerce contractual agreements and use courts to force compliance, this one has dark overtones in terms of potential for abuse. Yet it can also be the means through which new freedoms and prosperities are born.

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PHIL

 Note to Questions 3 & 4: Existing law in the analogue realm has two workarounds for areas where these kludge-y solutions work but don't make much sense, for obvious historical reasons. My question(s) as to both will be what the heck do we call these two TRUs.

 Question 3: I propose that we add a TRU covering "Neighboring Rights". I am familiar with this but not really qualified to summarise it, so based on recent reading here is my best shot. 50 years ago, a music recording was not protected in the U.S. but its underlying musical composition *was* covered. There are lots of other examples of stray types of media that need protection but are not specifically named in national legal systems. (Note that Berne only covers literary and artistic work, note also WIPO phonograms treaty.) The workaround between national systems of law was "You protect mine and I'll protect yours." Although I don't know this for a fact, I would extrapolate that during the period the U.S. did not cover phonograms, other nations did not need permission to copy U.S. recordings (provided they had permission to copy the underlying composition - an important matter of "Who do I have to pay in order to do this?"). I suppose this TRU workaround protects the Rightholder only, although its national framework suggests a broader scope. I also think this is a useful TRU for application to new media types. Should we call this "TRU neighboring rights"? That name doesn't seem very TRU-ish. (Would "TRU international reciprocity" be better?)

LEONARDO

 This seems too broad to me

CRAIG

 

 "TRU, Neighboring rights" looks good to me.  But, this to me, is another of those, don't worry too much about it now, cases.  There are a number of existing TRU names and TRU templates that are somewhat strange but there is a time for "word-smithing" and now does not seem the time.

 Ummm, you did say you were going to write this one up, didn't you?;-)

 JAN. 25 PHIL >

Leonardo, agreed but this is currently how many performances are protected and others refer to it that way. But I came up with something I really like, especially because of its potential for digital support outside of the international bilateral context. So I propose:

TRU reciprocal protection (Right holder)

Martin, let me know if you think this should be expanded to include Middleman. I feel it is more like economic exploitation, in that it is traditionally for right holders (albeit usually in some context of collective work or performance of something others have written or composed).

 * * *

PHIL

 Question 4: I propose that we add a TRU covering performance before small groups. This gets into the historical distinction between large public gatherings like symphonies versus individual consumption of media such as books. It's funny because it is so clear how money used to be collected for what, but the economic and social reality is now so changed. So basically public versus private. Internet consumption by an individual is now recognized as a performance although I am unclear to what degree the issue of whether it is "public" comes into play in some generally agreed way - I believe it at least does *not* qualify as private/individual if it is offered to multiple online viewers who could all use their own copies more or less simultaneously. But none of this existing law adequately covers a hypothetical multiplex in a mall where 10 people can rent a viewing space - bigger than a home theater - and request media from a central databank (e.g., feature films). Or what about a 100-seat home theater used for a regular gathering, or a church or school library version of this. It seems to me that this question is born of recording because back in olden times, rightholders just didn't bother getting compensation for these mid-size groups. It seems to me this was a commonly practiced type of infringement. Some of you may know that the U.S. now makes an exception for music played in small establishments such as restaurants or beauty parlors that essentially legalises small public performances without any performance fees being paid to collecting societies, breaking from international law by doing this (yes the U.S. is being sued for this). So given that the quandary of these mid-size groups is inevitable, and so far has only been covered by workaround or not covered at all, what the heck do we call the Rightholder TRU for this? The "TRU if too many people are viewing this at once I should get paid more than if it was just one copy for one person"?

 Sorry these questions are uniquely mind-numbing (at least they are to me!).

LEONARDO

 Another "Authorised Domain" Pandora's box, but yes, this is needed.

CRAIG

 I can understand your concern and your feeling the need to cover this TRU in a direct and straightforward manner, which it currently seemingly can not be but I think this one needs to sit and stew for a while, why?  Because I haven't a clue!  ;-)

 But, I know a couple of people of the legal persuasion that are on this reflector, maybe they can lend a hand. (HINT HINT!)  ;-)

 JAN. 25 PHIL >

So here is a new box chock full of potential for objections. I propose adding 5 new TRUs:

TRU respect for sale royalties terms and conditions (Right holder)

TRU respect for performance royalties terms and conditions (Right holder)

TRU respect for resale royalties terms and conditions (Right holder)

TRU U.S. first sale (end user)

TRU equitable remuneration (Right holder)

I feel my Question 4 handily fits into the one for performances. The resale/first-sale issue is another France v. the U.S. opposition, so should be written up. The funniest part of this for me is the anti-piracy educational activities embarked on by IFPI/RIAA/MPAA. Because no one ever tells the consumer what terms and conditions are involved with these issues - they just say "Buy this." And then the Middleman often tries to fudge the artist's share, while not really pushing the market to comply with the details that are already in the law so long as their sales channels are working right (e.g., supporting the status quo of how revenues arrive). And even now with these schoolbook "Don't Steal Music/Movies" classes, the underlying legal issues are not discussed with any sophistication because "DON'T STEAL IP" is thought to be the way to go, accompanied by touching portraits of set designers and low-selling artists of yesteryear. These "respect" rights should be written up because they exist and have received lip service, but they have not been properly handled (ref. also difficulty of explaining license terms to consumers).

 OK that's it, I warned y'all that I was going to come up with a bounty of Missing In Action TRUs. I have more that I'm still firming up, but these are the ones that directly address this e-mail thread.

And Martin, thanks again for the links to the German & French codes. I wish Google was my friend as it is yours, but it would be even more helpful if I spoke any languages other than English! I will review those 2 more closely in the not-too-distant future.