The Digital Media Project

 

Source

Philip Merrill

Title

TRU #48 to restrict access to unpublished material

No.

040804merrill01

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/08/04

 

#

Criteria

Description

1.

Name of TRU

Right to restrict access to unpublished material

2.

Summary description of TRU

a fundamental and traditional right of authors to create without the public having the right to see what they are working on while it is in the process of being created; poses interesting challenges when drafts are circulated to a limited group such as editors or first readers

3.

Use records of TRU

The weakness of this TRU is that it is primarily supported in a way similar to performance rights, mostly through reciprocal treatment between countries. Because an author has a TRU first publication, they can circulate an unpublished manuscript for comment and criticism, but those who get a copy of the unpublished manuscript have no TRU fair use rights to distribute quotes to the public.

Examples come too light when the author's TRU has been violated, most commonly by journalists, for example a journalist making extensive quotes from an unfinished manuscript or pre-release publication of excerpts from Hillary Clinton's book.

4.

Nature of TRU

Pretty well supported but not meaningfully robust in the face of today's digital security issues.

The Universal Copyright Convention Article II(2) says, "Unpublished works of nationals of each Contracting State shall enjoy in each other Contracting State the same protection as that other State accords to unpublished works of its own nationals."

Article 3(1) of the Berne Convention says, "The protection of this Convention shall apply to:" leading into 3(1)(a), "authors who are nationals of one of the countries of the Union, for their works, whether published or not".

Paul Goldstein points out in section 4.I.I.I.B.i of his International Copyright, "Until the Stockholm revision, the fact that a work's author was a national of a Union country would ensure Convention protection only for unpublished works." So clearly there was at least significant law on the books protecting authors' TRU to restrict access to unpublished material despite the fact that this might have been enforced only after damage was done, so keeping private things private would be the preventive measure required.

The U.S. situation is per usual unique since Federal copyright required fixation of copyright notice until 1976, which is so to speak when the United States began adopting Berne's approach. As a side-remark, the effective date of March 1, 1989 when U.S. Berne adoption "entered into force" (IC A.1 Note 2) could strike somebody as quite late. So before 1976, the only protection in the U.S. for unpublished works was under state law. Goldstein says at section 4.2.I, "State common law copyright continues to protect unfixed works without regard to nationality or domicile."

A significant Supreme Court opinion ruled, "It is true that common law copyright was often enlisted in the service of personal privacy. In its commercial guise, however, an author's right to choose when he will publish is no less deserving of protection. The period encompassing the work's initiation, its preparation, and its grooming for public dissemination is a crucial one for any literary endeavor....The obvious benefit to author and public alike of assuring authors the leisure to develop their ideas free from fear of expropriation outweighs any short-term 'news value' to be gained from premature publication of the author's expression." (Harper & Row v. Nation, 471 U.S. 539, 554-555 (1985), taken from IC at sec. 5.5)

Goldstein suggests Berne Article 9(2) could apply the three-step test to unpublished works generally but calls this unnecessary. At sec. 5.5, he says, "Since, unlike some of the Berne Convention's narrower, self-contained exceptions, Article 9(2) is not confined to published works, it would appear to govern rights in unpublished works as well. Nonetheless, traditional respect for authorial privacy and autonomy has influenced jurispridence and legislation on the subject, with the result that unpublished works regularly enjoy greater protection from unauthorized use than do published works."

Problems exist for movie companies engaged in collective works, since the law favors what must have ben private handwritten manuscripts. Media producers and movie studios view dailies while a shoot is in progress, and this footage should be protected by this TRU. However its "subject matter" means there is less established law on the subject, although one would expect that some commercial law or theft definition could be used in most countries. One thing that is less flexible is the TRU moral rights perspective defining an author who receives protection only as a flesh-and-blood creator, with no extention to corporate owners of rights to collective works, per Goldstein sec. 4.I.I.I.B.i referring to German law.

5.

Benefits of TRU

All the benefits of privacy and wealth in the form of intellectual property. Harms newspapers looking to print sales-driven exposés.

6.

Possible digital support

A rich range of DMBMs can be derived from this, particularly because limited sharing of a pre-publication draft can generate valuable metadata while the creation is being finished. This can be added to celebrity and open blog text, generating gobs of metadata suitable for rent (after initial publication) to zealous fans of whatever topic.

It is worth noting that media production is already an early adopter of many computer network security solutions. In addition to digital transmission of dailies, this extends to digital secure distribution to radio stations and other pre-release circulation of versions to be further distributed after the date of publication or official release.

7.

Requirements

TRU security - user shall be able to apply security systems from any available