The Digital Media Project

Source

Philip Merrill

Title

TRU #36 of distribution

No.

040420merrill06

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/04/20

 

#

Criteria

Description

1.

Name of TRU

Right of distribution

2.

Summary description of TRU

generally used to describe the circulation of "fixated" copies, including many contractual arrangements; like TRU reproduction, distribution is often identified by exceptions to the Right-holders ability to exclude, however distribution also often applies to new technologies or usage patterns, also including TRU lending and TRU rental.

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).

Distribution comprises many things, especially the analogue movements and uses of physical media. It is not so ethereal as "reproduction" or "communication" but rather imagines real people negotiating in real rooms over shipments, territory, or where used goods may be resold. It should be pointed out regarding "Possible Digital Support" that this could easily apply to uses of Digital media such as print-outs or books assembled through just-in-time printing.

4.

Nature of TRU

Examples of treaty references to TRU distribution include WIPO Copyright Treaty Article 6 (GIC 2.I.2.3) and WIPO Performances and Phonograms Treaty (for audio, not applicable to literary and artistic works) Articles 8 and 12 (GIC 2.2.3). "In France, Belgium and elsewhere, the distribution right is partially approximated by the so-called 'right of destination'...The only reference to a distribution right in the Berne Paris Text is in Article 14(I)" regarding movies (GIC 5.4.I.I.A.iii footnote 591). U.S. copyright law grants TRU distribution at 17 U.S.C. section 106(3) "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending" (link to code)

As cited at R 47, TRIPS Objectives Article 7 points to the "higher calling" to which TRU distribution can be called: "The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations." Although distribution can be imagined in terms of very worthy social policies, it is often regulated by contracts that bring it down to earth with a thud. For example, music industry attorney Don Passman gives the example of artists being asked to sign away their distribution rights for the territory of "the universe" (All You Need To Know About The Music Business, p. 158).

It is important that digital media distribution provides Right-holders with clear access to the legal system of some territory in which to sue in cases of infringement (GIC 3.I.2.2).

The opportunity for electronic transactions to provide cheaper, easier and better pricing or negotiations is recognized, for example, "When a copyright owner deposits its works into some future electronic retrieval system, it will be able to attach a price tag to each work, listing its rates for different uses of the work" (GCH Chapter 7). It is also possible that the ease of "electronic contracting" could eliminate the need for some compulsory licensing schemes (GIC 5.5.I.6).

5.

Benefits of TRU

Right-holder

6.

Possible digital support

The best way to support TRU distribution is by supporting broad circulation abilities for unpublished material and with regards to publication and post-publication distribution efforts, to provide robust and flexible support to (electronic) contracts and licensing. Note that standardisation of electronic contract language can benefit analogue by providing terms and conditions able to be included in analogue-executed printed documents. The use and support of unpublished material is referred to TRU to restrict access to unpublished material.

Merchandise manufactured by DM fabrication devices (inc. standard printers) should be branded (at least by watermark) and become subject to the laws and conventions of the analogue world.

Note serialisation and other labeling options.

Note the different challenges for digital support posed by distribution of physical goods defined as transfer of ownership (of the "good" but not its underlying copyright), accomplished by sale or gift, or else a rental or loan for which the original ownership of the "good" does not change hands but an End-user obtains the ability to freely use the distributed item. For digital support it must be considered whether the concept of owning a physical good is not somewhat antiquated and dysfunctional when the vital matter is access to content, for example the ability to obtain fresh digital originals if the previously used copy becomes lost or damaged.

7.

Requirements

DMP shall support the right of distribution.

8.

References