The Digital Media Project

Source

Philip Merrill

Title

TRU #61 of communication to the public

No.

040420merrill09

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/04/20

 

#

Criteria

Description

1.

Name of TRU

Right communication to the public

2.

Summary description of TRU

appears in the WCT/WPPT (WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty) as an Internet-friendly way to give authors protection for Internet-based "performances" or data transfers by wire or wirelessly to individuals consuming the data at a time of their own choosing, related to TRU to technological access restrictions and TRU reproduction

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).

The roots of this right are very old and coexisted in a way melded with TRU reproduction. Other words for this were often "making available" and various associations with the words "public" or "publish". This vagueness left the word more or less un-taken until 1996 when the WIPO applied it to users of electronic copyright-protected material enjoying the content privately at a time of their own choosing. It had been a problem determining how to give the power to restrict such a private use, because private uses had been traditionally non-governed.

4.

Nature of TRU

Examples of treaty references to TRU communication to the public include WIPO Copyright Treaty Article 8 (GIC 2.I.2.3), and WIPO Performances and Phonograms Treaty (for audio, not applicable to literary and artistic works) Articles 10 and 14 regarding "making available" (GIC 2.2.3). Goldstein points out, "Article 15 of the German Copyright Act divides economic rights between those involving exploitation in material form (reproduction, distribution, exhibition) and those involving the right to communicate a work to the public in nonmaterial form." (GIC 5.4.I.I.B.i) (link to German code)

TRU communicate can be considered a broad extension of TRU reproduction to cover the digital environment. Therefore it particularly covers and applies to DMP content, but is much less relevant in terms of deriving RQs from this TRU.

"Communicate" is good advice extolled in the King James in four places: Gal 6:6, Phil 4:14, 1Ti 6:18, and Heb 13:16, for example, "to do good and to communicate forget not". Interestingly this word also translates as "to share", coming from the Greek word koinohn- (eito/(sug-)isantes/ikous/ias). In fact the one with the "sug-" in front of it can be translated as "having become partners with". It is almost as if the Bible anticipates the connection between communication, file-sharing and P2P since what is a peer but a partner?

Until 1996 the word communicate rarely took on the more restrictive sense it now has under the WIPO WTC and WPPT treaties as a restrictive author's right applicable to private, anytime consumption of digital media distributed over the Internet. Before that it could be restrictive pertaining to performances, but was used somewhat alternatively with "making available" connecting to the publication requirement that sufficient copies be made available. In other words, sharing really mean getting it out there, so publishing is a means of sharing. Not everybody gets a free copy and the economics and means of media delivery often create compensatory remuneration to the creator — so there needs to be a copy available for sale somewhere, some way, somehow for this to work as a restrictive author's right. Fair use for something that is not "made available" is much broader than fair use for something where someone can just go out and buy a copy.

Noteworthy background on the WCT/WPPT's digital approach is given in Paul Goldstein's Copyright's Highway, Chapter 6 "The Answer to the Machine Is in the Machine". This includes a review of John Barlow's historic statement that "information wants to be free" 1995 in Amsterdam, followed shortly by a White Paper prepared for President Clinton called "Report of the Working Group on Intellectual Property Rights, Intellectual Property and the National Information Infrastructure" which coined the historic term "celestial jukebox". This led towards the 1996 proposals of Bruce Lehman at WIPO Geneva and the DMCA. While the DMCA was under review at a U.S. House of Representatives Commerce Committee Hearing, Chairman Thomas Bliley is quoted by Goldstein as having said, "the 'anti-circumvention' provisions of the Administration's bill create entirely new rights for content providers that are wholly divorced from copyright law." It is important to DMP to keep in mind that the "access" model in WCT/WPPT is a result of 1995-1996 thinking.

As definitive as the use of the phrase "communication to the public" has become since the WCT and WPPT, its meaning remains hazy insofar as it is not inherently relevant to the key digital treaty consideration of "access", DRM and rules against DRM-hacking. One thing, however, that is a consequence of this haze is the DMCA's potential (using DMCA as the prime example of this international set of obligations) to become a completely restrictive cloud that covers everything including private copying. That is part of why it is necessary for DMP RQs derived from TRUs to become the awl that can punch holes in this restrictive haze of TRU communicate, just as Berne Article 9(2) is now the way to make holes (aka exceptions/limitations/exemptions) in TRU reproduction. Even the DMCA was enacted with exceptions, namely any generated by a procedure to be followed by the Librarian of Congress in broad consultation. Despite being in favor of the DMCA personally, I would enjoy proposing, "Hey Dr. Billington, how about TRU quote?"

In a 2003 e-mail exchange with Leonardo, I expressed excitement over "accessright" as potentially a more helpful concept than "copyright". Leonardo answered copyright was such a hazy concept—used to mean so many things—that accessright was unlikely to fare much better. Since this also covers TRU reproduction (with its many exceptions) we can conclude defining the nature of TRU communicate with the public by considering it a haze through which we can view "access" which is at least more digitally helpful than copyright, TRU communicate with the public or TRU reproduction.

This topic is treated more fully at TRU to technological access restrictions.

5.

Benefits of TRU

Right-holder

6.

Possible digital support

Already comprehended by the DMP mission and workplan, since "mapping" of this right is inherently accomplished by DMP going forward.

Among the issues to be considered for support and RQs are the circulation of unpublished material, the regional confinement of material, and the development of enforcement tools both financial (as in fines) and disabling (of access). There must be sufficiently granular support for TRU first publication so that communicated content can have economic remuneration or contractual sales while being communicated to mid-sized groups (under 500 people) on a semi-regular basis. There is a threshhold of publication after which a great deal of fair use can and should be tolerated, but there are also early stages and premium uses for which good restrictions can make a win-win, money (or other compensation) going to the Right-holder, and exceptional experiences going to the End-user. In a sense, TRU communication can be supported in ways that are much more restrictive than analogue publication because they will presuppose the existence of strong DRM.

7.

Requirements

DMP shall support the ability of a creator or author to not publish or communicate their creations, choosing not to make their work broadly available to the global community of End-users.

8.

References