The Digital Media Project

 

Source

Philip Merrill

Title

TRU #76 to restrict adaptation

No.

040909merrill03

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/09/09

 

#

Criteria

Description

1.

Name of TRU

TRU to restrict adaptation

2.

Summary description of TRU

this is traditionally referred to as the right of adaptation and vests control in the creator over other's use of their work to create derivative works based on the original; in the event unauthorised adaptations are made, their copyright exists "without prejudice to the copyright in the original work"

3.

Use records of TRU

One typical instance of adaptation is a book author granting movie rights. The mass-merchandising and cross-merchandising of movies now regularly involves a variety of book titles targeted to different readership demographics. At a certain point, the movie creators stop exercising a lot of control over all these and just let others make adapted works according to some sort of brand & content licensing agreement. Adaptations and other derivative works can be an important source of funds, even the primary source of profits. In the late 20th century, there was a period when a rock band's T-shirt sales on concert tour were one of the band's major revenue streams.

4.

Nature of TRU

Adaptations touch on several other TRUs and clearly have a Protean nature, since they can take numerous and unpredictable forms. This TRU to restrict adaptation is intended to treat the main right of an author or other Creator of Content to determine what altered or tranformative new versions are made from their work, presumably (but not necessarily) a literary or artistic work to begin with.

  • TRU of adaptation -- treated here as the countervailing rights and usages of people making adaptations
  • TRU to restrict performance -- analogous to this TRU, particularly as many performances may be considered interpretations
  • TRU of performance -- this is analogous to TRU of adaptation but refers instead to the Creators of performances
  • TRU for the author's work not to be tampered with (integrity) -- as a moral right, authors are entitled to preserve and govern the forms taken by their own creations
  • TRU of reputation -- of particular importance here, an adaptation that injures the original creator's reputation can be considered a 'bad' adaptation or one that should not have been authorised (if it was) in the first place
  • TRU to edit for personal use -- this TRU can be considered our main connection to progressive uses that can lead to extraction, transcoding, repurposing, and many yet-uninvented multimedia mash-mix formats, however the long-known barrier of authorial permission kicks in if the person later wants to share or publish their re-edited Content
  • TRU to transcode -- since 1991 (see below), adaptation has conventionally been understood to cover transcoding of digital computer languages
  • TRU of developing nations exception -- this provides a more liberal scheme of permissions for making adaptations, translations in particular
  • TRU of equitable remuneration -- the general theory of equitable remuneration often applies to adaptations and implies the heavy hand of government regulation (although not necessarily, i.e., when collecting societies can administer voluntary licenses without statutory authority)
  • TRU of translation -- although this is in a sense the first and most obvious form adaptation can take, we treat translation separately in part because it is very specific and predictable in contrast to progressive new forms of Digital Media adaptation
  • TRU of parody -- this is the shining example of an exception to TRU to restrict adaptation, because it is presumed Creators wil not authorise parodies
Adjusting modern copyright law to the needs of progressive uses of Digital Media is one of the compelling issues of our time. For example in June 17, 2004 testimony before a U.S. House of Representative subcommittee (ref. http://www.house.gov/judiciary/courts.htm), Register of Copyrights Marybeth Peters discussing legislation to permit the censored versions made by ClearPlay.com technology said, "While the technology that we have been discussing today is fairly benign, it is not difficult to imagine technologies that ... result in performances that do not simply edit out limited portions of the work that many viewers would find offensive, but either add new material or result in a rendition of the copyrighted work that so changes the character or message of that work that it constitutes an assault on the integrity of the work."

In U.S. law, adaptations are part of the definition of "derivative work" (17 USC 101). It is possibly noteworthy that while translations are the first example cited, adaptations are listed as a latter catch-all term as follows: "A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'." [emphasis added] The right to prepare derivative works "based upon the copyrighted work" is given to the copyright owner under 17 USC 106(2) (online at http://www4.law.cornell.edu/uscode/17/ch1.html).

Under Berne, TRU to restrict adaptation is covered, including for different "subject matter" types of media, as follows:

  • Art. 12 -- "Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works."
  • Art. 13 -- for composers and songwriters, recordings of musical performances of their works are delegated to national treatment that is not "prejudicial to the rights of these authors to obtain equitable remuneration"
  • Art. 14 -- several provisions regarding movie adaptations including the exclusive right to authorise "the cinematographic adaptation and reproduction of these works , and the distribution of the works thus adapted or reproduced"
Regarding its main treatment under Article 12, in International Copyright section 5.4.I.I.A.ii, Paul Goldstein says, "'Adaptation' in Article 12 probably means the recasting of a work from one format into another, as from a short story into a dramatic play or from a cartoon series into a musical comedy, while 'arrangement' probably means modification within the same format, such as an orchestral arrangement of a popular song."

Under Article 4(b) of the E.C. Directive on the Legal Protection of Computer Programs (1991, 91/250/EEC), the author or rights holder's right to restrict adaptations is extended to software while also giving protection to the one doing the adapting, as follows: "the translation, adaptation, arrangement and any other alteratioon of a computer program and the reproductoion of the results thereof, without prejudice to the rights of the person who alters the program" At the same section as the above, Goldstein says this applies to "translations from one computer language to another."

5.

Benefits of TRU

Rights holder

6.

Possible digital support

This is one of the most interesting and potentially variable issues for digital support, since End-users have great interest in creating various adaptations for personal use, for limited performance for friends and family, and also for communication to the public over the Internet. Perhaps the most interesting effort to deal with the several issues involved has been taken by Creative Commons with their sampling license (ref. http://creativecommons.org/projects/sampling) for which musician Gilberto Gil deserves special credit. The "CC" licenses however are human-mediated with no particular machine-mediated support or processing. Given a secure platform for DM capable of processing rights information, much of this could be automated in powerful ways.

Digital support for this TRU relates to support for TRU quote since under ideal circumstances an End-User enjoying the performance of an adaptation need only be a click away from access to the original. Also, the issue of whether an adaptation is harmful to the original Creator's interests would be susceptible to objective resolution based on statistical analysis of usage data.

As interactive Digital Media becomes more common and its progressive uses are increasingly explored, adaptation is becoming increasingly built in to what can be done with a distributed product. It is now many years since the first promotional releases of Internet songs for which private remixing of equalization has been authorized. Now many CDs are released containing audio and/or MIDI samples that are intended to be adapted for composition of derivative works, for example the so-called "royalty-free" for "rights buyout" market for production music. Videogames in particular are accommodating End-Users' desire to make adaptations, personalising and customising the individual experience. In fact, this customisation trend extends itself to hardware devices, particularly with regards to unusual covers or cases, such as leather instead of metal or plastic.

A DMP Digital Enabled Usage of particular relevance to this TRU is #40 -- Applying descriptions, ratings, processing and/or governance to a DM at the granularity required by the application -- at http://www.chiariglione.org/contrib/040720merrill01.htm. For example, an End-User purchasing DM could use it at home, edit a mash-mix version with or without extracting sections of the DM, and then query whether this adaptation can be shared or circulated with a wider group and under what restrictions; it would be nice to see such interactivity supported by automated processing of Content. It should be noted that the blind need all-visual media and the deaf need all-audio media, and adaptation into these formats could also be supported by Content processing automation.

7. Requirements includes requirements at DEU #40: "transcoding, transmoding, hooks to hang things on" the latter refering to sectional reference metadata providing writable fields into which data can be entered at a later time

8.

References