The Digital Media Project

Source

Philip Merrill

Title

TRU #44 of reasonable modification

No.

040519merrill01

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/05/19

 

#

Criteria

Description

1.

Name of TRU

Right of reasonable modification

2.

Summary description of TRU

A traditional Middle-man's right in some national legislation, allowing publishers to take unobjectionable liberties in altering writer's manuscripts for publication.

3.

Use records of TRU

Reasonable modification by Middle-men publishers is distinguished from harming the integrity of a writer's work by the unobjectionable quality of the modifications made. Correction of typos and grammatical errors are often cited as examples, however the harmful potential of this TRU is also clear and has long been recognised. For example, if a writer does or does not want sex scenes or other elements revolting/appealing to widespread popular tastes, and if the publisher disagrees with the writer, TRU reasonable modification is likely to be invoked by the publisher as justification to make changes. It is recognised that writers and their editors often have a tussle over the final form of a book for publication. Although writers certainly enjoy the dominant claim to sympathy because they are creators, the fact is that mere sellers/publishers of books regularly have useful insights that benefit the presentation of the writer's art and may help sales.

4.

Nature of TRU

Although some national legislation supports this TRU in civil law countries, it is also often supported by practice and/or contractual language.

In Paul Goldstein's book International Copyright, sec. 5.4.2.2, he refers to this in civil law countries as an exception to what is covered by the moral right TRU integrity: "As a rule, courts in these countries employ an objective, rather than subjective, measure of prejudice in order to discourage lawsuits by overly sensitive authors or by authors seeking to use moral right as a lever to extract some unrelated personal or economic advantage. Germany, which follows this approach, applies it to licensees as well as to third parties. Section 39(2) of the German Copyright Act provides that alterations to a work and its title 'which the author cannot reasonably refuse shall be permissible.'"

Regarding Berne Article 10, Sam Ricketson says [at http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf]: "Modifications and alterations to a work are often necessary where it is quoted or utilized for teaching purposes, and the need for such flexibility is supported by the records of the Rome conference, where proposed amendments to make borrowings under the Article 'conform entirely to the original text' were rejected."

5.

Benefits of TRU

Middle-Men (traditionally, but could potentially be applied to all Users as a DEU)

6.

Possible digital support

Digital media is capable of supporting modifications to an original such that an End-User would first be presented with the work as modified but would also be able to request the unmodified version and/or see what actual modifications were made.

Craig Schultz suggested (27 January 2004 e-mail) it seemed superficially this TRU could be applied to digital transformations such as TRU to transcode, and could be part of drawing the line between tampering with anticircumvention technology and 'adaptations' (in the sense that the word is used by the Universal Media Access community).

Based on Craig's thinking and the 26-27 April 2004 TRU WS presentation regarding people with disabilities, the phrase "reasonable modification" or "reasonable adaptation" could be used to define special permissions based on a user's special status. In other words, DM extraction and adaptation could be enabled if a user belongs to a group that enjoys or should enjoy special permissions.

7.

Requirements

DMP DRM shall support the display of previous versions of DM and comparison with subsequent forms or adaptations.