The Digital Media Project

Source

Philip Merrill

Title

TRU #34 Right to reproduction

No.

040420merrill01

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/04/20

 

#

Criteria

Description

1.

Name of TRU

TRU of reproduction

2.

Summary description of TRU

broad right to exclude others from copying protected material (unless authorised to do so), implemented with many national variations, generally including listed exceptions

3.

Use records of TRU

This treatment relies on Paul Goldstein's books Copyright's Highway (GCH) and International Copyright (GIC) as well as Sam Ricketson's WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment (R). Like TRU to quote, reproduction is primarily covered by Berne and WCT/WPPT internationally and it is enforced nationally.

In earlier times, the exercise of this right included analogue restrictions that do not directly translate to digital:

Note that reproduction can be so broad as to encompass all Right-holder TRUs especially TRU distribution, including lending and rental, yet also including TRU broadcast and TRU performance. The right to reproduce is often embodied in law with regards to "subject matter" analogue media type, for example "phonograms" and "cinematic works". Since the 1996 WCT/WPPT, two new TRUs connected to reproduction have been broadly adopted, adapted to the phenomenon of digital media:

The history of TRU reproduction is long and varied. It cannot be emphasised enough that TRU reproduction is restrictive, giving the creator the right to restrict expression when others seek to reproduce a significant number of copies. It is so restrictive as to be "exclusive" giving the Right-holder the right to exclude potential infringing competitors by calling on the law for national enforcement. Simultaneous with this, some fair use copying has always been accepted, notably quoting, news, classrooms, and official announcements.

In some ways reproduction is like a belt - it only holds things together because of the fair use holes in it. Ironically, reproduction was not explicitly mentioned in early Berne. "The reproduction right, though regularly protected under national law, did not appear in the 1886 text" GIC 2.I.2.I.A, see also footnote 69. "In practice, reproduction rights were universally recognized under national legislation, but the exceptions to these rights varied considerably from country to country" R 20 and see footnote 47. Its introduction came with what is commonly referred to as the Article 9(2) exception allowing anybody to do anything provided the "three-step test" criteria are all met, see breakdown R 20-27. As far as the ability to make new exceptions, 9(2) is like an awl or drill that can make a hole in anything.

A long history of large and small industrial Middle-men have shaped the past of reproduction, notably the Stationers Guild. Goldstein gives a nice account of the Stationers' first claim in 1706 that they represented the rights of authors (GCH Chapter 1, 33-35) and he ends Copyright's Highway with a reference to this historical landmark. It is worth noting that Middle-men have a tendency to assert that most titles lose money. It has followed from this that organisations of Middle-men have often been in the best position to call for law enforcement through costly lawsuits. The advocacy work of many creators should be noted including Victor Hugo, Charles Dickens, Mark Twain (see to U.S. Congressional committee) and the opera composer Giacomo Puccini. Also notable is Supreme Court Justice Oliver Wendell Holmes, Jr. whose father was an author.

Because history has taken reproduction into the digital era there is now also a treatment for it there. On the other hand, the digital approach of WCT/WPPT is somewhat antithetical to the traditional history of copyright. Goldstein says, "Other than its inclusion in the text of a copyright and a neighboring rights treaty, the anticircumvention requirement has no connection—indeed is antithetical—to the philosophy of copyright generally, that privately enforced rights mediate more efficiently and equitably between authors and their audiences than do physical or technological fences." (GIC 5.4) See treatment at TRU communication to the public and TRU technological access restrictions.

It should be noted these two digital, post-Internet TRUs do not require mapping to the digital domain and should probably be excluded from any such mapping. They primarily govern DMP in the form of applicable treaty language. As far as our mapping project into the digital domain, their main use might be the assignation of TRU to technological access restrictions after the fact to those RQs that seem required by the use of digital security technologies such as encryption key management.

4.

Nature of TRU

Treaty reference to TRU reproduction includes WIPO Performances and Phonograms Treaty (for audio, not applicable to literary and artistic works) Articles 7 and 11 (GIC 2.2.3). U.S. copyright law grants TRU reproduction at 17 U.S.C. section 106(1) "to reproduce the copyrighted work in copies or phonorecords" (link to code)

Worthy of immediate note is GIC 5.4.I that ideas are not protectable by copyright, only expressions of ideas can be protected. The building blocks of thought and ideas are not covered by RH TRU reproduction. The sharing of ideas can cause many liberalities to be required, and has also consistently led to cases of creative "stealing" as well as commercial misconduct (e.g., misstatement of source).

This TRU also has general coverage of TRU adaptation which requires many issues to be addressed regarding derivative works, inclusion, linking, TRU quote, ecommerce opportunities, and limited rights of circulation within the private home network, ref. GIC 5.4.I.I.A(ii).

At GIC 5.4.I.I.A(i), Goldstein introduces his treatment of the "Reproduction Right" by saying, "Historically, the right to make copies of a copyrighted work is the seminal author's right, the law's response to the invention of moveable type." He later points out the tension between technological access restriction and copyright, saying, "Contemporary technologies for the transmission of copyrighted works have presented a challenge to effective definition of the reproduction right."

There is a spectrum from printers to the Internet using different reproduction technologies with differing analogue properties — generally referred to as different "subject matter" (although that phrase is also sometimes used, less properly, for the purpose of usages). Goldstein cites France's Intellectual Property Code Art. L 122-3 (footnote 564), "Reproduction shall consist in the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way." This shows the spectrum from physical fixation — a basically analogue concept — and the right of communication which was adopted and adapted to cover digital Internet transmissions in the 1996 WCT and WPPT treaties. It is noteworthy that the chaos of trying to cope with the steady development of new reproduction technologies caused most new technologies to be first and/or primarily covered by "neighboring" rights of TRU reciprocal protection.

Although the creator's exclusive right to restrict reproduction is legally supported and well-established, it conventionally occurs along with an extensive list of exceptions. For example, on pp. 42-3 of Ricketson (link above) appears an "Illustrative Table of limitations and Exceptions Under Berne" listing the following 17 subject matter exceptions (note: seven are justified by informatory purposes).

official texts (literary works or LW) — Article 2(4)
Justification: informatory; Limitations/Exceptions/Compulsory License: limitations; Mandatory/Permissive: permissive; Rights: all; Conditions: none
news of the day and press information (LW) — Article 2(8)
Justification: informatory; L/E/CL: limitations; M/P: mandatory; Rights: all; Conditions: none
political and legal speeches (LW) — Article 2bis(1)
Justification: informatory; L/E/CL: limitations; M/P: permissive; Rights: all; Conditions: none
public lectures, etc. (LW) — Article 2bis(2)
Justification: informatory; L/E/CL: exceptions; M/P: permissive; Rights: reproduction, all rights under Article 11bis(1); Conditions: informatory purpose
general (all works) — Article 9(2)
Justification: general; L/E/CL: exceptions, compulsory license; M/P: permissive; Rights: reproduction; Conditions: three-step test
quotation (all works) — Article 10(1)
Justification: informatory; L/E/CL: exceptions, compulsory license; M/P: mandatory; Rights: all; Conditions: 1 fair practice, 2 justified by purpose
illustration in teaching (all works) — Article 10(2)
Justification: educational; L/E/CL: exceptions, compulsory license; M/P: permissive; Rights: reproduction, all rights under Article 11bis(1);
Conditions: 1 illustration, 2 fair practice
newspapers, etc., articles, broadcast works (LW) — Article 10bis(1)
Justification: informatory; L/E/CL: exceptions; M/P: permissive; Rights: reproduction, all rights under Article 11bis(1); Conditions: 1 no reservation, 2 indication of source
reporting current events (all works) — Article 10bis(2)
Justification: informatory; L/E/CL: exceptions; M/P: permissive; Rights: photos, cine, all rights under Article 11bis(1); Conditions: informatory purpose
broadcasting (all works) — Article 11bis(2)
Justification: public access; L/E/CL: compulsory license; M/P: permissive; Rights: all rights under Article 11bis(1); Conditions: 1 equitable remuneration, 2 moral rights respected
ephemeral recording (music and words) — Article 11bis(3)
Justification: convenience, archival preservation; L/E/CL: exceptions, compulsory license; M/P: permissive; Rights: reproduction; Conditions: 1 must be "ephemeral", 2 "exceptional documentary character" (archival)
recording of music and words — Article 13(1)
Justification: new industry; L/E/CL: compulsory license; M/P: permissive; Rights: reproduction; Conditions: 1 already recorded, 2 equitable remuneration
cine works — co-authors (limited) — Article 14bis(2)(b)
Justification: convenience; L/E/CL: exceptions; M/P: permissive; Rights: reproduction, all rights under Article 11bis(1), public performance; Conditions: no contrary stipulation
censorship (all works) — Article 17
Justification: state power; L/E/CL: limitations; M/P: permissive; Rights: all rights; Conditions: must be for censorship reasons, none other
three implied/ancillary agreements between member states
  • minor reservationsJustification: de minimis; L/E/CL: exceptions; M/P: permissive; Rights: public performance, all rights under Article 11bis(1), public recitation;
    Conditions: de minimis
  • translationsJustification: necessity; L/E/CL: exceptions; M/P: permissive; Rights: reproduction, public performance, public recitation, all rights under Article 11bis(1) however not Articles 11bis or 13; Conditions: those applicable under Articles 2bis, 9(2), 10 and 10bis
  • anti-monopoly controlsJustification: state power; L/E/CL: limitations; M/P: permissive; Rights: all rights; Conditions: must be for anti-trust reasons, none other
It should be noted that these are only the limitations and exceptions in Berne and that a great many more exist, particularly regionally limited ones (fewer are recognized by international treaty but homegrown exceptions flourish like U.S. "homestyle" business establishments being exempt from royalty payments to collecting societies, which is currently being challenged in international court).

5.

Benefits of TRU

Although TRU reproduction is generally considered to benefit Right-holders exclusively, the traditional exceptions that normally come with it benefit End-Users, so this TRU can be considered from either a narrow RH-only or a broader RH/EU point-of-view.

6.

Possible digital support

TRU reproduction is likely to be supported by the basis of DMP and its workplan. Strong DRM supplies an unlimited ability to shut-down reproduction, so support of this TRU becomes a matter of the interactivity allowing authors to control their works as items of digital media, as well as support for the three "watchwords" covered in this section of TRU technological access restrictions: granularity, flexibility and extensibility.

As this is an economic right, it is worth noting that the primary measure of whether it is supported is whether it is economically successful.

Note issue of support for artists working through Middle-men.

At 5.5, Goldstein makes a most important argument that I will reproduce at length in order to discuss possible digital support: "Article 9(2)'s second requirement, that the reproduction 'not conflict with a normal exploitation of the work,' aims to fortify authors' interests in their accustomed markets against local legislative inroads. An obvious circularity underlies the requirement. At least historically, an author will normally exploit a work only in those markets where he is assured of legal rights; by definition, markets for exempted uses fall outside the range of normal exploitation. Consequently, it might be thought that to expand an exemption is to shrink the 'normal market,' while to expand the definition of 'normal market' is to shrink the permitted exemption. Common sense offers the surest guide out of this logical paradox." I suggest we can do a great deal better with DMBM development, so that common sense might have a field day. For example, the case of an author crafting a once-and-for-all DMBM that never changes should be supported, however more amorphous and statistical DMBM's can also be allowed to form in very liquid and transitional states, only firming up into stricter more rigid DMBMs when certain threshholds are passed. For example, supporting an artist's full-time livelihood can be used as one of several common sense measures of such a threshhold — that at a certain point, things get serious and then stricter DMBMs apply. However the very DMBM that applies could grow 'genetically' from the digital marketplace such that sharing usages were all caught up in the process of the DMBM's formation. This is especially likely to be applicable to TRU regional pricing.

Note the question as to whether or not we are crafting actual, real-world DEUs that form a set of creator's rights (or, more properly, options). Since the creator is the End-user, the distinction between sharing-ideas TRUs and these more intellectual property ownership type rights is inherently interesting. Properly defined (by RQs) they should illustrate two different sides of human nature, analogous to speech versus hearing.

The '90s White Paper suggested the use of "rules for managing copyright information so that users could know the identity of a work's author and owner and whether they were willing to allow use of the work" (GCH Chapter 6, 185).

7.

Requirements

DMP shall support the right of reproduction

8.

References