The Digital Media Project  
Source L. Chiariglione
Title Collection of TRU templates No. 041120chiariglione01

Collection of TRU templates

This document collects all templates analysing Traditional Rights and Usages (TRU) of media users developed by the public DMP reflector in the course of 2004. It is composed of 3 tables

  1. TRUs ordered by sequential number
  2. TRUs ordered by category
  3. TRU templates

In the tables the following acronyms are used

RH : Right Holder
MM   Middleman
EU   End-User

and the following categories adopted to classify TRUs.

A : Already-established legislative TRUs of content creators
B : Already-established legislative TRUs belonging to end-users
C : Commercial and remuneration TRUs of direct economic significance
D : TRUs related to general social liberties
E : Fundamental TRUs from historical practice and interaction with analogue media
F : Consumer-choice TRUs relevant to the high-tech environment

The first two table also give the name of those who have developed the individual templates and the date of first posting. In order of number of TRU templates contributed they are

Name Surname Company Location Country # of templates
Phil Merrill Active Contributor Pasadena, CA US 53
Martin Springer Active Contributor Lübeck DE 15
Craig Schultz Multimedia Architectures   JP 10
Nicholas Bentley Active Participant   FR 2
Greg Colyer None   UK 2
Marc Gauvin sDae Madrid ES 2
Leonardo Chiariglione CEDEO Villar Dora (TO) IT 1
Mélanie Dulong de Rosnay Medialive Paris FR 1
Takanori Senoh Panasonic Osaka JP 1
Michael Topic The Tropical Group   UK 1

Table of TRUs ordered by sequential number

# Cat TRU RH MM EU Source Date Template
01 B TRU to quote     X Merrill 2004/01/20 Template
02 E TRU to make personal copy     X Dulong de Rosnay 2004/01/13 Template
03 D TRU to space shift content     X Schultz 2004/01/15 Template
04 D TRU to time shift content     X Schultz 2004/01/15 Template
05 F TRU to make playback device   X X Schultz 2004/01/19 Template
06 F TRU to choose playback device     X Schultz 2004/01/19 Template
07 B TRU to use content whose copyright has expired X X X Springer 2004/01/23 Template
08 D TRU to communicate privately     X Springer 2004/01/24 Template
09 D TRU to publish content anonymously X     Springer 2004/02/16 Template
10 D TRU to use content anonymously     X Springer 2004/02/29 Template
11 A TRU of attribution X     Merrill 2004/02/23 Template
12 D TRU of anonymity X     Merrill 2004/02/07 Template
13 E TRU to annotate for personal use     X Colyer 2004/05/11 Template
14 E TRU to edit for personal use     X Schultz 2004/01/19 Template
15 C TRU not to be counterfeited   X   Merrill 2004/01/10 Template
16 C TRU that sales displays will follow acceptable practice   X   Merrill 2004/01/10 Template
17 C TRU to be ignorant of usage   X   Springer 2004/01/11 Template
18 E TRU to apply a rating to a piece of content   X   Schultz 2004/01/15 Template
19 D TRU of continued access     X Springer 2004/01/14 Template
20 D TRU of political freedom X X X Merrill 2004/01/13 Template
21 D TRU of freedom of art     X Springer 2004/01/13 Template
22 A TRU to be recognized as the author (paternity) X     Merrill 2004/03/23 Template
23 A TRU not to be miscredited as the author (misattribution) X     Merrill 2004/03/23 Template
24 A TRU for the author's work not to be tampered with (integrity) X     Merrill 2004/03/23 Template
25 C TRU of "First sale"/Personal loan     X Schultz 2004/01/19 Template
26 D TRU to transcode     X Springer 2004/01/29 Template
27 E TRU to make prohibited content inaccessible       Schultz 2004/01/15 Template
28 E TRU to time based advertising       Schultz 2004/01/15 Template
29 D TRU to digital media rental       Schultz 2004/01/15 Template
30 D TRU to freedom from monitoring     X Colyer 2004/01/15 Template
31 F TRU of reverse engineering   X X Springer 2004/01/21 Template
32 A TRU of withdrawal/objection X     Merrill 2004/03/23 Template
33 B TRU of fair use     X Bentley 2004/09/01 Template
34 A TRU of reproduction X     Merrill 2004/04/20 Template
35 C TRU of economic exploitation X     Merrill 2004/09/29 Template
36 A TRU of distribution X     Merrill 2004/04/20 Template
37 C TRU of contractual commerce X X X Merrill 2004/09/29 Template
38 C TRU of reciprocal protection X     Merrill 2004/09/09 Template
39 C TRU of respect for sale royalties terms and conditions X     Merrill 2004/05/11 Template
40 C TRU of respect for performance royalties terms and conditions X     Merrill 2004/05/11 Template
41 C TRU of respect for resale royalties terms and conditions X     Merrill 2004/05/11 Template
42 C TRU of equitable remuneration X     Merrill 2004/09/09 Template
43 A TRU of reputation X     Merrill 2004/03/23 Template
44 C TRU of reasonable modification   X   Merrill 2004/05/19 Template
45 A TRU of first publication/disclosure X     Merrill 2004/03/23 Template
46 A TRU of parody X     Merrill 2004/09/09 Template
47 A TRU of factual reporting X     Merrill 2004/07/20 Template
48 A TRU to restrict access to unpublished material X     Merrill 2004/08/04 Template
49 A TRU of lending X     Merrill 2004/04/20 Template
50 A TRU of translation X     Merrill 2004/09/09 Template
51 C TRU of regional pricing   X   Merrill 2004/09/29 Template
52 B TRU of unpublished recording     X Merrill 2004/05/19 Template
53 B TRU of developing nations exception     X Merrill 2004/06/12 Template
54 B TRU of copying for classroom instruction     X Merrill 2004/07/20 Template
55 B TRU to access content in libraries     X Senoh 2004/01/30 Template
56 E TRU of authenticity of content guaranteed X X X Chiariglione 2004/06/13 Template
57 F TRU to choose the service X   X Springer 2004/03/02 Template
58 F TRU to choose the delivery system X   X Springer 2004/03/03 Template
59 A TRU of moral rights X     Merrill 2004/03/23 Template
60 C TRU of rental X     Merrill 2004/04/20 Template
61 A TRU of communication to the public X     Merrill 2004/04/20 Template
62 A TRU of applying technological access restrictions X     Merrill 2004/04/20 Template
63 E TRU to distribute lower-resolution copies only X     Merrill 2004/04/20 Template
64 E TRU to compel real-time only consumption X     Merrill 2004/04/20 Template
65 E TRU to restrict place of use X     Merrill 2004/04/20 Template
66 E TRU to restrict time of use X     Merrill 2004/04/20 Template
67 F TRU to make content creation device X X   Springer 2004/02/15 Template
68 F TRU to assign content description X X   Springer 2004/02/16 Template
69 F TRU to access content of one's choice     X Merrill 2004/02/16 Template
70 F TRU to run applications of one's choice     X Merrill 2004/02/16 Template
71 F TRU to attach playback devices of one's choice to a network     X Merrill 2004/02/16 Template
72 F TRU to access information about content     X Merrill 2004/02/16 Template
73 E TRU to share content with members of a group     X Topic 2004/09/19 Template
74 D TRU to improve end-user experience X X   Chiariglione, Springer 2004/08/03 Template
75 F TRU to choose security X X X Springer 2004/03/12 Template
76 A TRU to restrict adaptation X X   Merrill 2004/09/09 Template
77 A TRU to restrict performance X X   Merrill 2004/09/09 Template
78 C TRU contracting for middle-men to broadcast X X   Merrill 2004/09/12 Template
79 C TRU contracting for middle-men to publish X X   Merrill 2004/09/12 Template
80 C TRU contracting for middle-men to release X X   Merrill 2004/09/12 Template
81 C TRU contracting for middle-men to promote X X   Merrill 2004/09/12 Template
82 E TRU of adaptation     X Merrill 2004/09/09 Template
83 C TRU of performance     X Merrill 2004/09/09 Template
84 A TRU not to apply DRM to a piece of content X     Bentley 2004/04/14 Template
85 C TRU to syndication X X   Merrill 2004/11/09 Template
86 C TRU to choose mode of economic compensation X X   Gauvin 2004/04/25 Template
87 A TRU to determine context of use X X   Gauvin 2004/04/04 Template
88 E TRU to make a print of a video scene (repurposing)     X Merrill 2004/09/10 Template

Table of TRUs ordered by category

Cat # TRU RH MM EU Source Date Template
A 11 TRU of attribution X     Merrill 2004/02/23 Template
A 22 TRU to be recognized as the author (paternity) X     Merrill 2004/03/23 Template
A 23 TRU not to be miscredited as the author (misattribution) X     Merrill 2004/03/23 Template
A 24 TRU for the author's work not to be tampered with (integrity) X     Merrill 2004/03/23 Template
A 32 TRU of withdrawal/objection X     Merrill 2004/03/23 Template
A 34 TRU of reproduction X     Merrill 2004/04/20 Template
A 36 TRU of distribution X     Merrill 2004/04/20 Template
A 43 TRU of reputation X     Merrill 2004/03/23 Template
A 45 TRU of first publication/disclosure X     Merrill 2004/03/23 Template
A 46 TRU of parody X     Merrill 2004/09/09 Template
A 47 TRU of factual reporting X     Merrill 2004/07/20 Template
A 48 TRU to restrict access to unpublished material X     Merrill 2004/08/04 Template
A 49 TRU of lending X     Merrill 2004/04/20 Template
A 50 TRU of translation X     Merrill 2004/09/09 Template
A 59 TRU of moral rights X     Merrill 2004/03/23 Template
A 61 TRU of communication to the public X     Merrill 2004/04/20 Template
A 62 TRU of applying technological access restrictions X     Merrill 2004/04/20 Template
A 76 TRU to restrict adaptation X X   Merrill 2004/09/09 Template
A 77 TRU to restrict performance X X   Merrill 2004/09/09 Template
A 84 TRU not to apply DRM to a piece of content X     Bentley 2004/04/14 Template
A 87 TRU to determine context of use X X   Gauvin 2004/04/04 Template
B 01 TRU to quote     X Merrill 2004/01/20 Template
B 07 TRU to use content whose copyright has expired X X X Springer 2004/01/23 Template
B 33 TRU of fair use     X Bentley 2004/09/01 Template
B 52 TRU of unpublished recording     X Merrill 2004/05/19 Template
B 53 TRU of developing nations exception     X Merrill 2004/06/12 Template
B 54 TRU of copying for classroom instruction     X Merrill 2004/07/20 Template
B 55 TRU to access content in libraries     X Senoh 2004/01/30 Template
C 15 TRU not to be counterfeited   X   Merrill 2004/01/10 Template
C 16 TRU that sales displays will follow acceptable practice   X   Merrill 2004/01/10 Template
C 17 TRU to be ignorant of usage   X   Springer 2004/01/11 Template
C 25 TRU of "First sale"/Personal loan     X Schultz 2004/01/19 Template
C 38 TRU of reciprocal protection X     Merrill 2004/09/09 Template
C 39 TRU of respect for sale royalties terms and conditions X     Merrill 2004/05/11 Template
C 40 TRU of respect for performance royalties terms and conditions X     Merrill 2004/05/11 Template
C 41 TRU of respect for resale royalties terms and conditions X     Merrill 2004/05/11 Template
C 42 TRU of equitable remuneration X     Merrill 2004/09/09 Template
C 44 TRU of reasonable modification   X   Merrill 2004/05/19 Template
C 35 TRU of economic exploitation X     Merrill 2004/09/29 Template
C 37 TRU of contractual commerce X X X Merrill 2004/09/29 Template
C 51 TRU of regional pricing   X   Merrill 2004/09/29 Template
C 60 TRU of rental X     Merrill 2004/04/20 Template
C 78 TRU contracting for middle-men to broadcast X X   Merrill 2004/09/12 Template
C 79 TRU contracting for middle-men to publish X X   Merrill 2004/09/12 Template
C 80 TRU contracting for middle-men to release X X   Merrill 2004/09/12 Template
C 81 TRU contracting for middle-men to promote X X   Merrill 2004/09/12 Template
C 83 TRU of performance     X Merrill 2004/09/09 Template
C 85 TRU to syndication X X   Merrill 2004/11/09 Template
C 86 TRU to choose mode of economic compensation X X   Gauvin 2004/04/25 Template
D 03 TRU to space shift content     X Schultz 2004/01/15 Template
D 04 TRU to time shift content     X Schultz 2004/01/15 Template
D 08 TRU to communicate privately     X Springer 2004/01/24 Template
D 09 TRU to publish content anonymously X     Springer 2004/02/16 Template
D 10 TRU to use content anonymously     X Springer 2004/02/29 Template
D 12 TRU of anonymity X     Merrill 2004/02/07 Template
D 19 TRU of continued access     X Springer 2004/01/14 Template
D 20 TRU of political freedom X X X Merrill 2004/01/13 Template
D 21 TRU of freedom of art     X Springer 2004/01/13 Template
D 26 TRU to transcode     X Springer 2004/01/29 Template
D 29 TRU to digital media rental       Schultz 2004/01/15 Template
D 30 TRU to freedom from monitoring     X Colyer 2004/01/15 Template
D 74 TRU to improve end-user experience X X   Chiariglione, Springer 2004/08/03 Template
E 02 TRU to make personal copy     X Dulong de Rosnay 2004/01/13 Template
E 13 TRU to annotate for personal use     X Colyer 2004/05/11 Template
E 14 TRU to edit for personal use     X Schultz 2004/01/19 Template
E 18 TRU to apply a rating to a piece of content   X   Schultz 2004/01/15 Template
E 27 TRU to make prohibited content inaccessible       Schultz 2004/01/15 Template
E 28 TRU to time based advertising       Schultz 2004/01/15 Template
E 56 TRU of authenticity of content guaranteed X X X Chiariglione 2004/06/13 Template
E 63 TRU to distribute lower-resolution copies only X     Merrill 2004/04/20 Template
E 64 TRU to compel real-time only consumption X     Merrill 2004/04/20 Template
E 65 TRU to restrict place of use X     Merrill 2004/04/20 Template
E 66 TRU to restrict time of use X     Merrill 2004/04/20 Template
E 73 TRU to share content with members of a group     X Topic 2004/09/19 Template
E 82 TRU of adaptation     X Merrill 2004/09/09 Template
E 88 TRU to make a print of a video scene (repurposing)     X Merrill 2004/09/10 Template
F 05 TRU to make playback device   X X Schultz 2004/01/19 Template
F 06 TRU to choose playback device     X Schultz 2004/01/19 Template
F 31 TRU of reverse engineering   X X Springer 2004/01/21 Template
F 58 TRU to choose the delivery system X   X Springer 2004/03/03 Template
F 57 TRU to choose the service X   X Springer 2004/03/02 Template
F 67 TRU to make content creation device X X   Springer 2004/02/15 Template
F 68 TRU to assign content description X X   Springer 2004/02/16 Template
F 69 TRU to access content of one's choice     X Merrill 2004/02/16 Template
F 70 TRU to run applications of one's choice     X Merrill 2004/02/16 Template
F 71 TRU to attach playback devices of one's choice to a network     X Merrill 2004/02/16 Template
F 72 TRU to access information about content     X Merrill 2004/02/16 Template
F 75 TRU to choose security X X X Springer 2004/03/12 Template

Table of TRU templates

01

Criteria

Description

1. Name TRU to quote
2. Summary description Right to reproduce limited portions of another author's work, for a variety of reasons, and in a variety of ways usually involving some attribution. Permission from the original author is not required, however exercise of the quote TRU exposes the quoting author to possible legal challenges.
3. Use records Quoting is a custom going back to the beginning of civilisation. Quotation is a common part of news journalism, political speech and academic critical analysis. Its use is frequent and normal to society. Excerpts of text used in published book reviews are the classic example. The ease of reproducing short strings of text in analogue or spoken media has made reproduction of words the most common use. The application of quote TRU to the sampling of audio and/or visual media is less common, although the use of 30-second clips and computer screenshots is relatively common. Quotation that should be acceptable may be unfairly challenged in court or suppressed by a "chilling effect", for example some academic journals are unwilling to print papers containing two-sentence quotations unless the submitting author can provide written proof of permission to quote. Relatively common misuses of this TRU (or bad faith uses) include those adverse to the truthful communication of the quoted author's meaning, for example quotes used "out-of-context", or adverse to the quoted author's economic exploitation rights, such as "giving away" crucial elements of a plot.
4. Nature Legally supported. Nicely summarised by Professor Sam Ricketson at http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf — for example pp. 11-14 on Berne requirement. In particular (on pp. 83-84), Ricketson concludes by addressing the tension between the requirement under Berne and the potential for technological measures that protect digital media to take away this right. U.S. common law, constitutional first amendment and copyright law provisions regarding fair use provide open-ended scope for new applications of this TRU. In general this right is quite extensive and its limits are difficult to define with precision.
5. Benefits Inherently a right of author's quoting other authors' expressions. Because of its interaction with TRU political freedom, all members of society can benefit or be harmed.
6. Possible digital support Recommended and optional types of support are summarised under requirements below, especially functionality to support sectional reference. In addition to those, important areas for possible support include:

The scope of copy-and-paste functions for a given digital media item could be predefined by the author, so that copying could be restricted but quoting permitted. For example, such restrictions could isolate sections for which some automatic quotation functionality is suported or else could set a maximum size and/or resolution for the amount of material that could be quoted with automated support. Also, authors could encourage the quotation or promotional use of defined sections.

Richness and social scope (for example, socialising with friends using portable devices) of collaborative interaction with quoted material, including the ability for an author to negotiate permissions possibly tied with compliance to a promotional scheme.

Multiple techniques for reference including exact reproduction of material (including through the "analogue hole" although this raises dangers of infringement), sectional reference only, and sectional reference with the option of richer access to the source of the quoted material (possibly e-commerce enabled). For example, all quoted material could be reproduced on fixed media and alternatively all quoted material could exist only on third-party data servers responding to sectionally defined requests (program calls). It is noteworthy that the ability to link to material quoted or used in a bibliography has been cited as the inspiration for Tim Berners-Lee's creation of HTML.

Declaration by author doing the quoting of the purpose for which the quote is made, the potential for third-party review of the fairness of these statements including by author or author's representative, third-party impartial entity, or peer review among P2P buddies, etc. Although the overhead of such a process could be viewed as a burden for those exercising their right to quote, there might be circumstances under which this was compensated for by increased security from punitive litigation or a driving urge to publish quotation-rich analysis in some area where rightsholders are expected to be prone to sue over their material having been quoted without prior written permission.

Timeframe support for cease-and-desist communications/negotiations between quoter and quoted, including pre-publication and post-publication timeframes.

In the event that reference was made by means of a search string — e.g., find the phrase "for two days only" within an e-book — it could be important to provide a backup means to located the phrase if the primary means fails.

7. Requirements The ability to quote using a short but meaningful excerpt shall be supported, with attribution provided and without notice to the author quoted. Separately, convenient methods for providing authors being quoted with notice that they are being quoted should be developed and their use encouraged. Quotation without notice is expected to expose the author doing the quoting to legal liability. With no disrespect intended for the political importance of this type of quote, it could be referred to as the "so sue me" method. Because of its importance to political freedom, it shall be possible to publish such quotes anonymously, opening the door to the possibility of wrongful infringement. Within a given circle of digital media consumption, it should be possible to filter or suppress these, especially based on criteria such as assigned ratings or an excessive number emanating from a defined (but anonymous) source. Note that such suppression opens the door to the possibility of wrongful censorship.

Normative issues (not necessarily required) include the preservation of a stable digital media rendering to be quoted; efficient and adequate means of attribution; sectional reference functionality for example chapter-and-verse with text, timecode start-stop with linear audio and audiovisual material, geometrical sections of 2D/3D art, and more challenging references to the state of a multimedia item such as a level and POV in a game (note that these could require preservation of state information such as path or inventory of "weapons collected" etc.); functionality for owners of the same title to enjoy fully rendered references to sections; e-commerce ability to locate and possibly purchase or rent full access to media or else obtain limited access to rendered references.

8. References  

02

Criteria

Description

1. Name TRU to make personal copy
2. Summary description Civil law countries legal term is « private copy », while common law countries do not handle it specifically and consider it as part of fair use prerogatives (USA), or fair dealing and other exceptions for private study or research (UK).

This mechanism allows certain acts that pertain to exclusive right of reproduction without requesting prior authorization.
Two factors are taken into account: the user (individual, some institutions) and/or the purpose of the use (education, non commercial…) to fall under the exception scope and avoid copyright infringement. 

3. Use records
  • paper reprography and photocopying of a book, an article
  • analog or digital recording of an audiovisual work on a VCR, a tape recorder, a CD burner, a removable memory, a HD…
  • a coming use can be a virtual private copy accessible online
4. Nature Both customary and legally supported.
The foundation of this TRU is the respect of privacy and the former impossibility to control acts and uses made at home
The private destination of the copy was supposed not to damage the work exploitation. 
5. Benefits Private copy benefit for users is obvious: open access, creation emulation, inequalities reduction…
TRU to make personal copy can be associated to a license fee (levy, compensation or equitable remuneration) collectively shared out between right holders. 
6. Possible digital support Personal end-user identification and client-server authentication technologies could adapt this TRU to the digital age (risk of  jeopardizing other TRU : TRU to use content anonymously, TRU to be ignorant of the usage…)
It could be possible to propose a virtual private copy that could be accessed only online after user/purpose control. Copy-right would be replaced by access-right.
Qualification of the use purpose might require the mediation of a trusted third party. 
7. Requirements Reflect national differences
  • Belgian law distinguishes copy of literary and plastic arts works, and sound/audiovisual copy. Full copy of a book is prohibited but full copy of an article or a sound/audiovisual work is permitted.
  • Canadian law allows it only for sound recordings and partly for software (back-up or compatibility purposes).
  • French law prohibits any collective use (copyist and user must be the same person and communication reserved to the family circle) and gratuitous nature of the act is not a criteria
  • UK copyright legislation authorises personal copy for research purposes including commercial research.
    German law authorizes works to be digitally displayed only (no copy) within teaching and research institution, while articles or fragments can be copied.
  • some countries differentiate between analogical and digital private copy.

Support changing interpretation

The three steps test is increasingly adopted (Berne, WTO TRIPs, 1996 WIPO treaties, 2001 European Directive) to evaluate the legitimacy of exceptions and limitations on copyright. It binds their enforcement certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.
States, rightholders or industrials may have to take measures to ensure the compatibility between protection techniques and reproduction for private use. The law never defines the number of reproduction and the amount of the original materials allowed

8. References  

03

Criteria

Description

1. Name TRU of Space shifting
2. Summary description Digital media can be accessed wherever the User is.
3. Use records With albums, cassettes and more recently CDs, the User has been able to enjoy the content on the various media wherever the User has access to a device of the proper type.
4. Nature Historically, once a User bought physical media containing audio or in the more recent case of VCDs, video, the User could access the audio or video anywhere they happened to be at any given time as long as they had a device to play the physical media on.  Distribution agreements may determine when a given title was available in a specific area but once the User bought a title that was available, the User had full access to the title anywhere, including places it might not yet be available through contracted business channels.  Since the User’s access to the title was for personal use, even accessing titles in a region in which they are not yet available would have no impact on the business of the distributors.

But, it also must be understood that some content is acceptable in some regions/localities and not in others.

5. Benefits Users don’t have to worry about their content becoming invalidated if they move permanently from one region to another or are just traveling for a period of time.
6. Possible digital support None needed
7. Requirements None
8. References  

04

Criteria

Description

1. Name TRU of time shifting
2. Summary description The ability to access content at a different time then when it was originally made available.
3. Use records Since the advent of video recorders for use in the home, Users have been able to view content that may originally have been broadcast when the User was unable to view it.
4. Nature Many times, in a broadcast situation, Users have to choose between sometimes 100’s of offerings and select only the one they can view at any one time. With the ability to record a given broadcast, a User could possibly record all 100 and view them all.

Also, often is the case where the entire broadcast need not be viewed for the User to gain full benefit from it.

5. Benefits Users can access they normally would have missed.

Competition for a given time slot has less impact on a given offering’s chance for success as more people would have a chance to access than in head-to-head cases.

6. Possible digital support A large storage device or service.
7. Requirements The ability to store digital media for later consumption.
8. References  

05

Criteria

Description

1. Name TRU to .make playback devices
2. Summary description The ability to manufacture or otherwise create devices for accessing Digital media.
3. Use records Manufacturers have been able to make playback devices for any type of content that has been available.
4. Nature Until the advent of the DVD, there was no “active” restriction on who could manufacture and market what. Previous to that, one may have needed to license technology but with DVD, those wishing to manufacture and market devices must be party to the DVD trust management system which is digitally enforced.
5. Benefits The more manufacturers there are creating products for Digital media, the wider the market for Digital media will become.
6. Possible digital support Trust management.
7. Requirements Support for trust/risk management systems.
8. References  

06

Criteria

Description

1. Name TRU to choose playback devices
2. Summary description The User may choose among different devices for accessing Digital media and does not need a different device for Digital media of different types or different devices for Digital media of the same type but from different sources.
3. Use records When valued content can be accessed by hardware devices, Users have a multitude of choices for their use. Any device from any manufacturer for a given type of content would work and would work right out of the store.

Lately, content has been packaged in DRM only supported on PCs and in many cases a given title is locked to a single given PC.  This at the same time that one can play one’s DVD’s on any DVD player and use Secure Digital and Memory Stick memory cards on any devices supporting those standards.

4. Nature Hardware manufacturers rely on, create and use standards, either international or industry.   The current crop of PC based distribution schemes are proprietary and only open to the single developer that created the scheme.
5. Benefits Users become frustrated and confused when Digital media they paid for doesn’t work at all or only works on one device or a very limited set of devices.

Users are more willing to accept new types of Digital media and services when they can use the same familiar devices they have been using for accessing content for years.

There is more competition to provide the User with a device so quality and features will increase and purchasing prices will come down.

6. Possible digital support Standards
7. Requirements Standards

07

Criteria

Description

1. Name TRU to use content whose copyright has expired
2. Summary description Under the Berne Convention [1], the minimum duration for copyright protection is the life of the author plus 50 years (Art. 7(1)). Signatory nations may provide longer durations if they so choose [2]. The copyright law causes all copyrighted works which have reached the end of their term of copyright protection to fall into the Public Domain. Public Domain means that the creator of the work has given up or lost all rights to the work. It means that users may do anything with the work - read it, copy it, publish it, change it.
3. Use records
  • Electronic Books: Project Gutenberg [3] is the Internet's oldest producer of free electronic books.
  • Music: Public domain songs may be used for profit-making without paying any royalties. [4]
  • US Government Works: Works by the U. S. Government are not eligible for U. S. copyright protection. [5]
4. Nature Supported by copyright law.
5. Benefits The expiration of copyright was initially conceived as a way to balance the rights of the Creator to exclusive ownership with Society's need to have free use of ideas/works that become commonly used and a part of our intellectual and social vernacular. However, under existing copyright law, the likelihood of a new work entering the Public Domain during the lifetime of the average user is minimal. (see footnote in [6]).
6. Possible digital support
  • Creative Commons Public Domain Dedication [7]
  • Automatic determination of copyright expiration date in the user's country via a trusted online date/time clock, a nationally set term limit information and an author-set profile of the first publication details [8]  
7. Requirements The expiration of copyright protection or the willingness of the creator to dedicate the entire copyright in the work to the Public Domain.
8. References [1] - Berne Convention
[2] - Project Gutenberg Copyright HOWTO
[3] - Project Gutenberg
[4] - The Choral Public Domain Library
[5] - U.S. Copyright Office
[6] - The Beginning of the Gutenberg Philosophy
[7] - Creative Commons Public Domain Dedication
[8] - proposed by Philip Merrill

08

Criteria

Description

1. Name TRU to communicate privately
2. Summary description The power of an individual to decide who amongst a group of persons will be the recipient of his/her ideas, thoughts and emotions.
3. Use records Before the invention of communication technology, people could be reasonably certain that conversations in private (e.g. at home) could not be heard by other people. With the advent of electronic communication also eavesdropping technology (e.g. telephone wiretaps, microphones, surveillance cameras,...) emerged. As a consequence people who want to communicate privately more often need to use cryptography.
4.   Nature Supported by regional laws. (e.g. German Constitution Article 10 [1], U.S. law [2])
5. Benefits Private communication is considered a prerequisite for the unhindered exchange of ideas and thus for the liberty of an individual. [3]
6. Possible digital support
  • Phones that provide security against anyone listening into calls
  • Easy to use e-mail encryption
7. Requirements Strong cryptography.
8. References

[1] - Grundgesetz -- "Basic Law" (German Constitution)
[2] - The invention of the Right to Privacy, Dorothy J. Glancy, Arizona Law Review, 1979
[3] - On Liberty, John Stewart Mill, 1869

09

Criteria

Description

1. Name TRU to publish content anonymously
2. Summary description To publish content without revealing the identity of the publisher
3. Use records "Anonymous publishers have played an important role throughout the history of publication. Freedom of anonymous speech is an essential component of free speech, and freedom of speech is a critical part of any healthy democracy". [1]

Example: The Pentagon Papers. [2]
4. Nature Supported by law in some countries (e.g. USA: First amendment [3])
5. Benefits "Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority". [4]
6. Possible digital support
  • Anonymous Remailers
  • Rewebbers [1]
7. Requirements
  • configurable TRU
  • a user-set profile for the anonymous publication of content
8. References [1] - TAZ Servers and the Rewebber Network: Enabling Anonymous Publishing on the World Wide Web, Ian Goldberg, David Wagner, 1998
[2] - The Pentagon Papers Case
[3] - First amendment - an overview
[4] - US Supreme Court, McIntyre v. Ohio Elections Comm'n (93-986), 514 U.S. 334 (1995)

10

Criteria

Description

1. Name TRU to use content anonymously
2. Summary description To use content without revealing the identity of the user
3. Use records
  • reading newspapers and books
  • reception of audiovisual works (e.g. using radios and TV sets for broadcasted content or record players, CD players, MP3 players, DVD players for content distributed on physical media)
  • paper reprography and photocopying of a book, an article [1]
  • analog or digital recording of an audiovisual work on a VCR, a tape recorder, a CD burner, a removable memory, a HD...[1]
  • creating artistic works (e.g. texts, pictures, music, movies, sculpture) using parts (e.g. quotes, samples, scenes, segments) of content
4. Nature Both customary and legally supported.
The foundation of this TRU is the respect of privacy and the former impossibility to control acts and uses made at home. The private destination of the usage was supposed not to damage the work exploitation. [1]
5. Benefits Anonymous usage benefit for users is obvious: the ability to control their personal information. However, "It is clear that privacy is about trade offs. The most basic one is between the incentive the subject has to share information, and the incentives she has to hide information" [...] "In fact, individuals are actually less concerned about privacy than what they claim to be. Many are willing to provide very personal information in exchange for small rewards".[2]
6. Possible digital support
  • Trusted systems
  • Anonymous identities for end user identification
7. Requirements
  • Informational self-determination
  • Off-line authorisation, authentication and/or identification
  • The maintence of anonymity in the face of the collection and analysis of data which when combined may violate anonymity
  • The user using their choice of trusted authorities
8. References [1] - TRU to make personal copy
[2] - Protecting Privacy with Economics: Economic Incentives for Preventive Technologies in Ubiquitous Computing Environments, Alessandro Acquisti UC Berkeley Workshop on Socially-informed Design of Privacy-enhancing Solutions in Ubiquitous Computing Ubicomp 2002

11

Criteria

Description

1. Name TRU of attribution
2. Summary description Defined narrowly for DMP process as the right to assert authorship of media for which a source is not given (or an incorrect source is given), in other words the right to demonstrate that one's name should be attached to an uncredited (or miscredited) work as that work's creator. The term is used elsewhere as largely synonymous with TRU to be recognized as the author (paternity).
3. Use records The case described here for specification-development purposes falls within the larger right of paternity (also known as attribution) and so is founded on the condition that an author or other creator deserves credit for a work or quote that is either unattributed or misattributed. It is not believed that this is a common occurrence for entire works, but this does occur all too often for quotes. While there might be cases in which plagiarism is involved, the key circumstance this is intended to refer to is that the credit-entitled creator begins in a credit-denied state while his work is in some published presentation but the creator is able to assert this TRU attribution and regain the credit to which they are entitled.
4. Nature Legally supported. See also 59. TRU moral rights, with respect to the nature of moral rights generally. More specifically, see 22. TRU to be recognized as the author (paternity), of which this TRU is considered a specific, somewhat-narrow instance. Note that the distinction between attribution (11) and misattribution (23) is a feature of U.S. copyright law for visual artists at 17 U.S.C. 106A(a)(1) (A) & (B).
5. Benefits Benefits Right-holders and End-users. Constrains other Right-holders.
6. Possible digital support The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report).
7. Requirements DMP shall support the right of attribution (in this case used narrowly)
8. References  

12

Criteria

Description

1. Name TRU of privacy
2. Summary description Privacy involves three basic aspects:
  • Autonomy: the capacity of members of society to function as individuals, uncoerced and with privacy.
  • Intrusion: one should be free from government surveillance with a reasonable expectation of privacy.
  • Informational privacy: individuals have the right to limit their personal domain by denying access of their personal information to others, or to limit how much personal information they are obligated to give to others. [1]
3. Use records In the "analogue world", individuals were more or less able to control the access to their personal information:
  • Appeareances in the public were separated by space and time
  • The collection of information about individuals required physical interaction
  • Only visible and audible information was collected by surveillance tools
  • Only out-of-ordinary events were collected
  • Collections of personal information were separated
With the digitalization of the world, individuals are losing their ability to control personal information:
  • The public appeareance of individuals on the Internet reveals more details about preferences, interests and location
  • The manner to collect information about individuals becomes invisible
  • New electrical and digital surveillance tools collect more detailed and precise data
  • Routine events are collected
  • Collections of personal information are centralised in databases and can be accessed on-line [2]
4. Nature Supported by law (e.g. 4th Amendment, US Privacy Act of 1974 [3], EU Data Protection Directive 95/46/EC [4]). After 9-11-2001, worldwide privacy and civil liberty policies have changed ([5], [6]).
5. Benefits "A free and democratic society requires respect for the autonomy of individuals, and limits on the power of both state and private organisations to intrude on that autonomy". [7]
6. Possible digital support
  • Machine readable privacy policies
7. Requirements
  • Anonymity and Pseudonymity: the user shall be able to hide or only selectively disclose personal information
  • Secure Communications and Storage: the user shall be ensured that no unauthorized third party gets access to her information, either in transit or in storage
  • Transparency: the user shall be informed about the amount of her personal information under surveillance at any point in time; and why and how this is done
  • Trust: the user shall be able to find out whom she can trust to keep their promises, and who can help her in case of conflicts [8]
8. References [1] - Personal Privacy Protection Versus Your Right To Know... - ESRI/ National Research Council
[2] - Personal Privacy in Ubiquitous Computing, Marc Langheinrich ETH Zürich, Switzerland
[3] - The Privacy Act of 1974
[4] - Directive 95/46/EC
[5] - Privacy and Human Rights 2003 - Beyond September 11, 2001
[6] - PapersPlease.org
[7] - Australian Privacy Charter, 1994
[8] - Privacy-aware Ubiquitous Systems, Marc Langheinrich ETH Zürich, Switzerland

13

Criteria

Description

1. Name TRU to annotate for personal use
 
2. Summary description The traditional right to augment media with additional information for personal use. The result could be regarded as a limited form of derivative work. However, whilst the publication of derivative works is typically restricted by copyright, end-users have not traditionally been restricted from making annotations for personal use.
 
3. Use records Adding marginal notes in a book, labels on a record collection, audio notes to a compact cassette, etc.
Note that this TRU is underpinned by the TRU to freedom from monitoring: under the principle that unenforcable laws are bad laws, personal annotation had to be allowed if only because there was no practical way to limit it. It would (now) also be regarded as reasonable by end-users. Note that there can be trade in the end-result of annotation, for instance "famous writer X's" annotated copy of "famous writer Y's" book might be quite valuable, even sought by national libraries, etc. [with what copyright implications?]
4. Nature Customary. Also, legally supported at least to the extent that making annotations does not constitute a derivative work, in which case copyright is not involved.
 
5. Benefits End-users benefit by not being forced to separate original and supplementary information. End-users and authors may suffer from confusion between the original and the annotated work. Authors may suffer if annotations become public and are perceived to be detrimental to the author's interests or simply unjust because unrewarded derivative work. However, in this case annotations could also be permitted as commentary of the kind found in a newspaper.
 
6. Possible digital support Annotation implies some kind of write-permission. It could nevertheless be separated from the original information, either visibly (like sticky-notes on PDFs) or invisibly (like hidden tracked changes in Word), which would avoid confusion between the original and supplementary information.
 
7. Requirements Write-permission, optionally with separation of the original and supplementary information. Also, to allow, for example, handwritten annotations on printed text, it might be necessary to support media types (graphics, in this case) that go beyond those necessary for the original information (just text, in this case).
 
8. References  

14

Criteria

Description

1. Name TRU to edit for personal use
2. Summary description The User may edit, reorganize, mix or transform the Digital media as the User chooses as long as the User does not (re)distribute the edited results.
3. Use records Although with books, the ability to edit has been limited to making annotations in the margins or scribbling doodles on the blank pages, with reel to reel, 8-track and cassette (both audio and video) recorders, one could make compilations of favorite titles as well as mix together different content to create something totally new.
4. Nature Current copyright law restricts the right to reproduce or create derivatives to the copyright owner.  The copyright owner can of course authorize others to make reproductions and/or derivatives as well.
5. Benefits
  • Users are able to gain more enjoyment from and be more interactive with Digital media.
  • Gifted Users may be able to use their home creations to begin new careers and become another source of Digital media
6. Possible digital support Flexible rights management that allows changes and edits to be retained or allows the creation of new Digital media which then can not be (re)distributed.
7. Requirements Support for editing DRM governed Digital media.
8. References  

15

Criteria

Description

1. Name TRU not to be counterfeited
2. Summary description An editor/publisher of a collection of excerpts, some from the public domain and some copyright-protected, so the collection enjoys a new Middleman's copyright protection. Or a distributor of Rolex watches who inherits some of Rolex's right not to compete against illegal imitations.
3. Use records Identification of this TRU emerged on the reflector from a speculative discussion of Middleman TRU's. It is based on general anecdotal awareness only.
4.  Nature Although editors and publisher's of collected works enjoy quasi-authorial status in many legal systems, protection of Middleman TRUs is often supported only by a grab-bag of economic rights that vary regionally. Examples of legislation that show an awareness of the Middleman's vulnerability include copyright protection for databases and the layout and appearance of printed publications (because the content itself could be public domain). The right of reproduction TRU is also clearly involved.
5. Benefits Creator's and Middlemen are protected. Competing Middlemen are hurt and arguments can be made for and against the proposition that end users enjoy greater access to content when its reproduction is restricted.
6. Possible digital support Middleman TRUs are not well-supported by the current framework of copyright so there is a big opportunity to enlist Middleman value-chain players in a platform that respects their needs and improves their ability to make money.
7. Requirements No suggestions at this time.

16

Criteria

Description

1. Name TRU that sales displays will follow acceptable practice
2. Summary description The relationship between a distributor and a retail outlet. For example, expecting that stores will not make false claims about a product and will not improperly reproduce trade and service marks, as in a retail store clerk who might use magic markers to make a huge sign containing misspellings/misrepresentations or using completely wrong colors for a logo.
3. Use records Identification of this TRU emerged on the reflector from a speculative discussion of Middleman TRU's. It is based on general anecdotal awareness only. It is believed that some provision of authorized promotional materials online is already occurring in isolated cases.
4.  Nature The analogue TRU for this occurs in various commercial practice regulations and relies heavily on trademark. A Middleman will often require resellers to agree to contractual signage restrictions. If these are not followed, the owner of the trademark could have recourse for legal damages against both the Middleman and the party responsible for the unauthorized content of signage or other sales displays.
5. Benefits The burden on resellers is justified and everybody benefits.
6. Possible digital support Middleman TRUs are not well-supported by the current framework of copyright so there is a big opportunity to enlist Middleman value-chain players in a platform that respects their needs and improves their ability to make money. In a B2B application of online services, however, support for the provision of promotional materials could be provided (and it is believed isolated examples of this already are in practice).
7. Requirements No suggestions at this time.
8. References  

17

Criteria

Description

1. Name TRU to be ignorant of the usage
2. Summary description The exchange of information and physical goods between people (e.g. Rights holders and End-users) who are separated by space and time is enabled by an infrastructure to store (time-shift) and forward (space-shift). Acting as middlemen, the providers of the infrastructure and the technology to exchange information and physical goods enjoy the TRU to be ignorant of the usage of their services.
3. Use records Throughout history of mankind, "middlemen" provided the insfrastructure and the technology for the exchange of information and physical goods between people. Some examples:
  • Infrastructure providers for information storage and distribution
    • postal service: The postal service enjoys the TRU of being ignorant of the content of letters and parcels they transport. They cannot be made culpable for crimes committed by their users using their service. Letters and parcels are protected against search and seizure and cannot be opened without a search warrant.
    • libraries: Libraries enjoy the TRU of being ignorant of the content of the books, records and information sources they provide and the usage of the information contained therein. Thus they are able to offer unhindered public access to information.
    • network providers: Network providers enjoy the TRU of being ignorant of the content of the data packets exchanged by their users and thus are able to provide internet services.
  • Technology providers
    • coach industry: The car industry enjoys the TRU of being ignorant of their customers committing suicide by driving too fast and thus are able to sell cars that go 160 mph.
    • printing industry: The printing industry enjoys the TRU of being ignorant of the content of the books they print for publishers.
    • computer industry: The computer industry enjoys the TRU of being ignorant of the usage of their computers and storage media by their customers and thus are able to sell computers that can be fully controlled by the users.
4.   Nature Legally supported
5. Benefits Mankind benefits by this TRU, since private exchange of information and physical goods and open access to information would be impossible without it. Freedom of communication and open access to information is the key to the Enlightenment of society and the progress of science. Systems wishing to keep private communication between people under surveillance are negatively affected by this TRU. Since private communication also includes the possibility of illegal activities, the free exchange of information can have a negative effect (e.g. on industries who rely on selling information).
6. Possible digital support
  • Secure e-mail
  • VPN
  • Digital libraries
7. Requirements
  • Strong cryptography for secure communication between users (including Rights-holders)
  • Hardware/ software platform trusted by users (including Rights-holders)
  • All encryption keys of End-user devices controlled by the End-users
  • No software patents
8. References  

18

Criteria

Description

1. Name TRU to apply a rating to a piece of content
2. Summary description An individual, organization, industry or government can apply a rating on some applicable scale to digital media.
3. Use records Movies, songs, television broadcasts and even entire television channels and even software will many times have a rating applied based on some generally accepted, understood and published scale.
4. Nature There are many different rating systems/scales, for many different type of digital media. In some cases they are informative only and in some cases they are mandated. An example of the former is the rating system used in video game software in which it is advised that a person under a given age not have access. An example of the former is the ratings applied to movies in which a person under a given age shall not have access.
5. Benefits Users can more easily determine the suitability of digital media they or their family members access.
6. Possible digital support Metadata carried in the digital media declaring the rating applied as well as the rating scale used, along with metadata useful for the verification of both.
7. Requirements The ability to provide for and contain within digital media, verifiable metadata containing a rating as well as the system on which the rating was made.
8. References  

19

Criteria

Description

1. Name TRU of continued access
2. Summary description "As human beings, we benefit greatly from the works of others. Artists, thinkers, scholars, and performers create works that we all enjoy, learn from, and are inspired by."[...]

"With ever changing technology, in order to preserve many works we will need to constantly move them ahead, copying them to each new media form before the previous one becomes obsolete. Also, as we create new media, we need to preserve the knowledge of the methods of converting from one media to another, so we can still access the old works that have not yet been moved ahead. This is crucial. Without this information, even preserved works could be unreadable." [1]

3. Use records "In medieval times, knowledge was guarded for the power it gave. The Bible was controlled by the church: as well as being encoded in Latin, bibles were often kept chained up. Secular knowledge was also guarded jealously, with medieval craft guilds using oaths of secrecy to restrict competition. Even when information leaked, it usually did not spread far enough to have a significant effect. For example, Wycliffe translated the Bible into English in 1380-1, but the Lollard movement he started was suppressed along with the Peasants' Revolt."

"But the development of moveable type printing by Johannes Gensfleisch zur Laden zum Gutenberg during the latter half of the fifteenth century changed the game completely. When Tyndale translated the New Testament in 1524-5, the means were now available to spread the word so quickly that the princes and bishops could not suppress it. They had him executed, but too late; by then some 50,000 copies had been printed. These books were one of the sparks that led to the Reformation."

"Just as publication of the Bible challenged the abuses that had accreted over centuries of religious monopoly, so the spread of technical know-how destroyed the guilds. Reformation and a growing competitive artisan class led to the scientific and industrial revolutions, which have given us a better standard of living than even princes and bishops enjoyed in earlier centuries. Conversely, the societies that managed to control information to some extent became uncompetitive; and with the collapse of the Soviet empire, democratic liberal capitalism seems finally to have won the argument." [...]

"The parallel with earlier religious history is instructive. The Bible came into the public domain because once it had been printed and distributed, the sheer number of dispersed copies made it impossible for the bishops and judges and princes to gather them up for burning." [2]

4. Nature Customary TRU, insufficiently supported by copyright [3] and patent law. The protection of traditional knowledge as an intellectual property right of the Public Domain is being discussed within WIPO [4]
5. Benefits Mankind benefits by this TRU, since continued access to information and cultural heritage is essential for the freedom of science, the spread of knowledge, the enlightenment of society and the balance of public power.

"Unlike a printed work, a work protected by a copy protection system can only be read using a device implementing that system. It is important that some way to preserve access to such works for future reference, to implement the copyright bargain of protection for a limited time after which the work enters the public domain and is free for all to use". [5]

6. Possible digital support
  • Eternity Service [2]

  • Reasonable Copyright
  • Semantic data structures which would enable enhanced machine based searches. [6]
7. Requirements
  • Organization: searchable, reliable, public accessible content archives (digital libraries), possibility to create personal collections of references to content, open access to metadata

  • Efficient search mechanisms: On the assumption that human archiving of content is continuously growing, the need for efficient search mechanisms will also grow.

  • Format and physical media: open standards for content formats, codecs and physical media, licensed under fair, reasonable and non-discrimnatory terms

  • Device (hardware, software, user interface): user's confidence that she can access content with the device of her choice (TRU to make playback device). Availability of open source software for accessing, viewing, encoding, decoding and transcoding media. Availability of hardware documentation under fair, reasonable and non-discriminatory terms

  • Future developments: user's confidence that content will be available in the future (independently of political system, data loss, change of user's social status, technology provider, patent owner, ownership of DRM system).
8. References [1] - Copy Protection Robs The Future, Dan Bricklin
[2] - The Eternity Service, Ross J. Anderson
[3] - Copyright Act (17 U.S.C.)
[4] - WIPO National Seminar On Intellectual Property
[5] - Copy Control Systems, Position Paper of IEEE-USA, 2002
[6] - Suggested by Nicholas Bentley (commonrights.com) on the public DMP reflector, April 2004

20

Criteria

Description

1. Name TRU of political freedom
2. Summary description Some free speech rights mingle with fair use thinking to form a context for open communication, often greatly to the benefit of society as a whole as well as most, if not all of the individual players in a given digital media chain, from creators all the way to consumers. This generally includes the right to pursue some sort of business or commerce, to pass or influence legislation, to form licenses or agreements, and to generally strive to improve society for altruistic reasons.
3. Use records historically anytime and always now -
  • Declaration of independence signed by U.S. founding fathers and its accompanying bill of rights.
  • Minorities seeking to have opinions heard about possible local mistreatment, especially reporting and documenting the existence of extreme cases such as "ethnic cleansing" while these are in progress.
  • A sexually harassed woman needs to complain to the authorities but the local authorities will not help, so she needs to be protected and communicate that to other authorities.
  • Library users and/or university-affiliated researchers seeking to assure privacy.
  • 4. Nature American common law traditions exceed what can easily be summed up without resorting to the First Amendment language or Fair Use Title 17 Sec. 107. The issues involved were summed up nicely by President George W. Bush in remarks given November 6, 2003 at the U.S. Chamber of Commerce (at http://www.whitehouse.gov/news/releases/2003/11/iraq/20031106-2.html ), for example: "...the prosperity, and social vitality and technological progress of a people are directly determined by extent of their liberty. Freedom honors and unleashes human creativity -- and creativity determines the strength and wealth of nations."
    5. Benefits Everyone benefits.
    6. Possible digital support This is a touchstone that should be applied to everything we do, since hurting this TRU will diminish the quality of any DMP specification. As evidenced by popular antipathy to clunky DRM schemes, protection of copyrighted material can inadvertently overstep and hurt political freedom and what are perceived by many to be basic liberties.
    7. Requirements Among others, it is important to be able to preserve copyrighted material so that statements can be criticised (ref. http://www.chiariglione.org/contrib/031112merrill01.htm#E10E6).
    8. References  

    21

    Criteria

    Description

    1. Name TRU of freedom of art
    2. Summary description "Along with science, research, and teaching, art is free. The freedom guaranteed covers the artistic creation as regards both the work produced and the effect produced by it."
    [...]
    "One cannot without inhibiting the free development of the creative artistic endeavour prescribe how the artist should react to reality or reproduce his reactions to it. The artist is the sole judge of the "rightness" of his response. To this extent the guarantee of artistic freedom means that one must not seek to affect the manner in which the artist goes about his business, the material he selects, or the way in which he treats it, and certainly not seek to narrow the area in which he may operate or lay down general rules for the creative process." [1]
    3. Use records Throughout history of mankind, artists, in their chosen communicative medium, gave immediate perceptible form to what they have felt, learnt, or experienced. Artistic activity involves both the conscious and the unconscious, in a manner not rationally separable. Here are some examples for artistic freedom in action:
    • Literature: In his book entitled Mephisto, a Novel, or How to Get on in the World, Klaus Mann portrays the rise of Hendrik Höfgen, a talented actor who in order to make a career for himself as an artist in collusion with Nazi powers, is false to his true political leanings and rides roughshod over all human and ethical considerations. The model for Hendrik Höfgen was the actor Gustaf Gründgens, one of the Hamburger Kammerspieler in the 1920s, when he was a friend of Klaus Mann and briefly married to his sister Erika. In August 1963 Klaus Mann announced the publication of Mephisto, and suit was brought by the adoptive son and sole heir of Gustaf Gründgens, who died in October 1963. [1]
    • Music: In her manifesto "you can't say "fuck" in radio free america" [2] Patti Smith states: "We believe in the total freedom of communication and we will not be compromised. The censorship of words is as meaningless as the censorship of musical notes; we cannot tolerate either. Freedom means exactly that: no limits, no boundaries...rock and roll is not a colonial power to be exploited, told what to say and how to say it."
    • Sculpture: In their project "Nikeground - rethinking space"[3] , Austrian artists [4] use the name and the logo of a shoe manufacturer for a monument on a square in Vienna. After several weeks, the shoe manufacturer withdraws the case against the art project [5]
    4.   Nature Legally supported, but in different regions, is and has been effected by political and/or business influences.
    5. Benefits Mankind benefits by this TRU, since art is essential for the development of society and for the balance of public power. Systems wishing to suppress the freedom of expression are negatively affected by this TRU.
    6. Possible digital support
    • Creative Commons Sampling License [6]
    7. Requirements
    • Reasonable Copyright
    • Hardware and software tools (e.g. text editors, image editing software,...) that enable artists to manipulate (e.g. edit, quote, copy, combine,...) material (e.g. text, picture, audio, video,... DM content) without any restrictions
    8. References [1] - BVerfGE 30, 173 Federal Constitutional Court (First Division), 24 February 1971, translated by Professor Basil Markesinis
    [2] - "you can't say "fuck" in radio free america", Patti Smith 1977
    [3] - Nikeground
    [4] - 0100101110101101.org
    [5] - Public Netbase, Pressrelease 2004 [6] - Creative Commons Sampling License

    22

    Criteria

    Description

    1. Name TRU to be recognized as the author (paternity)
    2. Summary description Right of the creator of a literary or artistic work to claim authorship or otherwise assert personal credit for the work's creation.
    3. Use records Historically, before the institution of royalties became common, it was normal for authors and artists to receive a one-time fee when turning a manuscript or other work over to a publisher or other "buyer". In practice, some could point out that advances frequently work the same way in the present day although the promise of royalties exists. But without royalties, an author's branding of their creation with their name was essential to the value of future sales of their work to middlemen. In many ways, the "paternity" association of one's name with one's work is the essential bond between creator and creation from which the creator receives an expectation that they will benefit in the future.

    Because publishing under a pseudonym (or anonymously) is an option, paternity also extends to the right to claim authorship to one's own work which was previously published under a pseudonym (or anonymously).

    Although authors might contract to allow someone else to take credit for their own work, the paternity TRU can allow the true author to take credit even when this might be economically unfair.

    On collective works such as motion pictures, the right to have one's name associated with one's creation - and the separation of this from the economic contracts involved - becomes essential to the lengthy "roll credits" that often occurs at the end of the movie.

    It is worth noting anecdotal evidence that writers guilds commonly resolve disputes over who is entitled to have their name appear and how, and that these conflicts are frequent, lengthy and contentious.

    The use of names also can involve two people with the same name and problematic cross-cultural issues such as foreign alphabet support, the use of diacrital marks with Roman text, and pronunciation difficulties. For example, the composer Dvorjak's name is missing a hacek diacritical mark, the Russian author Solzhenitsyn is distributed under a romanization (versus Cyrillic) that is commonly mispronounced, and sounds such as the German "e" at the end of Hesse and Nietzsche can lead to heated debate as to whether it should be not-pronounced or pronounced with a strong "uh" sound, both of which are wrong.

    4. Nature Legally supported. See also 59. TRU moral rights, with respect to the nature of moral rights generally.

    Treaty landmarks include addition of paternity and integrity to Berne in 1928 Rome Act with Article 6bis according to Goldstein's International Copyright Sec. 2.I.2.I, and note mention of droit moral in 1928 Article 11bis. Also of note is Article 5 of the 1996 Geneva WIPO Performances and Phonograms Treaty. At Sec. 2.2.3, Goldstein says, "This is the first time moral rights have been prescribed for performers in an international agreement." A notable law case was decided 1991 by the Court of Cassation in France regarding movie colorization (Goldstein Sec. 3.3.2.2.C), interpreting moral rights being "inalienable" as providing authors from foreign countries with full access to the French court system to assert these rights (at a minimum, inside France).

    At Sec. 5.4.2.I, Goldstein quotes the WIPO Guide to the Berne Convention as calling Paternity the "first and foremost" moral right and the Guide says it "may be exercised by the author as he wishes; it can even be used in a negative way i.e., by publishing his work under a pseudonym or by keeping it anonymous, and he can, at any time, change his mind and reject his pseudonym or abandon his anonymity."

    Also at that section, Goldstein points to the U.S. as primarily protectng similar interests (to Paternity) through Trademark law at 15 U.S.C. Sec. 1125(a) (link to statute) titled "False designations of origin, false descriptions, and dilution forbidden" or when a licensee's obligation to give attribution is imposed on them by contractual agreement.

    5. Benefits Benefits Right-holders and End-users. Constrains the permissible behavior of Middle-men and others who might want to claim credit.
    6. Possible digital support The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report).

    Parternity should first be addressed by separating what is trivial from what is non-trivial about its support. Names are all over the place attached to most important consumer-priced digital media for sale. The company that produces the piece of media for sale is likely to be featured, as well as the "title" of the piece, perhaps a brief authorised "description" and whatever other personal information, quite likely to include a number of common human names such as Jose or Michael.

    Indeed one of the most problematic factors is local alphabet support either by or similar to Unicode. A treat for many audiences would be to hear the author pronounce his or her own name, and to have a way to choose to hear this alongside whatever alphabetic appearance the person's name has, in the spelling conventions of the author's native language.

    Additional material could be provided; it wouldn't be hard to price audio recordings of authors' mothers, wives or kids telling humorous stories about them or video clips of interviews with fans saying what was most meaingful about the creator's work. If all of this was author-approved, it could be trivial to provide all of this and much more, as well as many different approaches. For example, an XML RSS-feed type server could provide international mirror-hosting and be easily available online globally, although there would likely be local censorship concerns in many countries, especially respecting titles that are forbidden or are permitted for research purposes only.

    As a personal fan of "It's a small world after all" who grew up near the U.N., I can vouch for being an interested consumer in global atlases for which authors and artists can describe where they grew up and countries they travel to in cross-referenced databases.

    Especially obvious to DMP by now are the issues of quoting. TRU Paternity support in TRU Quote is essential.

    Note that moral rights vest more immediately in flesh-and-blood authors and so behave differently from data from sources more controlled by Middle-men or created as a collective work such that there is some consequential dilution of name recognition except for well-known stars. In some ways, in this system, any name that is a "star" name or a "hero" name should actually be cross-referenceable within the Paternity-support system.

    Along the lines of the WIPO digital agenda there is excellent potential for ecommerce support.

    A primary challenge is to specify curatorial supervision of the database, challenging authors' contributions when they veer away from reasonable and sensible data worth storing on their behalf within the trusted digital repository. Note that the database itself is specifically required to be trusted; there is a likelihood of economic harm if the database is not well-maintained as content per se.

    7. Requirements
    • DMP shall support the right to be recognized as the author (paternity)
    • DMP shall support the ability of creators to record the pronunciation of their name in their native language as well as the ability to display the native-language written form of their name.
    • DMP shall support straightforward global atlas referencing as well as the ability to associate 3D locations with time and short comments or descriptions.
    • DMP shall support paternity by providing a means to cross-reference prominent names, distinguishing people or parties that are identical from other entries with similar details.
    • DMP shall support ecommerce transactions consistent with the WIPO Digital Agenda.
    • DMP shall support the specification of conditions for maintenance of a trusted database, such that both its technological delivery as well as the integrity of its content are both well-maintained.
    8. References  

    23

    Criteria

    Description

    1. Name TRU not to be miscredited as the author (misattribution)
    2. Summary description Defined narrowly for DMP process as the right to assert non-authorship of media for which one is given as the source, in other words the right to demonstrate that one's name should be removed from the credit for a work that one did not create. The term is used elsewhere as closely related to TRU to be recognized as the author (paternity).
    3. Use records The narrow case described here for specification-development purposes is a corollary to the larger right of paternity (also known as attribution) having to do with a person's right to assert "Hey, I didn't say that." In other words, a non-creator of a cited work attributed to this individual is entitled to deny authorship and beyond that demonstrate non-authorship and have the mistaken attribution corrected by having their name removed.
    4. Nature Legally supported. See also 59. TRU moral rights, with respect to the nature of moral rights generally. More specifically, see 22. TRU to be recognized as the author (paternity), of which this TRU is considered a specific, somewhat-narrow instance. Note that the distinction between attribution (11) and misattribution (23) is a feature of U.S. copyright law for visual artists at 17 U.S.C. 106A(a)(1) (A) & (B).
    5. Benefits Benefits Right-holders and End-users. Constrains other would-be Rright-holders and Middle-men.
    6. Possible digital support The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report).
    7. Requirements DMP shall support the right not to be miscredited as the author (misattribution)
    8. References  

    24

    Criteria

    Description

    1. Name TRU for the author's work not to be tampered with (integrity)
    2. Summary description Right for the creator of a literary or artistic work to object to unreasonable modifications that distort or mutilate the work or otherwise present their work in a manner harmful to their reputation.
    3. Use records The prevailing, guiding principle that the creator of a work should be able to control having their work presented as originally intended falls victim to a host of complicating details. Creators are understandably sensitive about not having their work tampered with or modified without their approval, however middlemen and even end-users have compelling instances for which revision might be justified. There is also an important distinction to be made between works in the original as published and the various types of end-user modifications that can alter the original but are not intended for publication or distribution. For example, Mr. Schultz has pointed out "the difference between tampering with a file and claiming it is original and 'tampering' with a file for personal use or derivation purposes."

    For middlemen, a countervailing TRU is reasonable modification, which certainly applies to minor issues such as punctuation or correcting misspelled words. On the other hand, middlemen could seek to take liberties such as changing characters' names and deleting or adding scenes or prose passages. Examples could include sexiness, political controvery or the use of vulgar language, and these might be either added or deleted for marketing pusposes, particularly when cross-cultural sensibilities are involved.

    Although the U.S. resistance to moral rights can seem puzzling, it seems a likely speculation that the combination of paternity and integrity offer opportunities for creators to act like demanding prima donnas, regardless of what economic contracts say. This can include advocating integrity rights in combination with paternity by threatening, "If you do that, then you have to take my name off it" when the author's name is what gives a specific work its anticipated market value. For example, many a book author has objected to movie adaptations made from their books (e.g., Tom Clancy) by protesting that the filmmakers should have stuck to their book's plot and events more closely, and many a film director has objected to shortened versions demanded by film studios (e.g., Sergio Leone). Writers are also notorious for wanting deadlines extended, time for additional revision, or having unusual ideas of how to write such as fussing over commas. It has been said by many a businessman that without deadlines, creative types might simply never get things finished. Then if a work is a success, there is often a market for revisions and these in turn can entail a variety of complications.

    Visual artists may also have unique quality-of-reproduction issues, for example concerns about accurate reproduction of colors.

    In spite of the many excuses that can be made on behalf of those who habitually modify work as value players in the content-chain connecting creator with end-user, there are also compelling arguments to be made on the creator's behalf, since they are the source of the material to be presented. For example, American humorist James Thurber has related many stories in which his well-meaning and competent editors at The New Yorker magazine tried to mangle his prose in order to make it more acceptable. There is certainly a line that should not be crossed without the creator's consent, regardless of how difficult it might be to draw such a line for each individual work and proposed change. A well-known U.S. court case that was resolved on the economic issue of reputation - since moral rights do not apply in the U.S. except for certain visual arts - involved the work of Monty Python's Terry Gilliam, who successfully objected to commercially oriented edits made by ABC to condense his material for television broadcast (ref. Goldstein International Copyright Sec. 5.4.2.2).

    4. Nature

    Legally supported. See also 59. TRU moral rights, with respect to the nature of moral rights generally.

    Treaty landmarks include addition of paternity and integrity to Berne in 1928 Rome Act with Article 6bis according to Goldstein's International Copyright Sec. 2.I.2.I, and note mention of droit moral in 1928 Article 11bis. Also of note is Article 5 of the 1996 Geneva WIPO Performances and Phonograms Treaty. At Sec. 2.2.3, Goldstein says, "This is the first time moral rights have been prescribed for performers in an international agreement." A notable law case was decided 1991 by the Court of Cassation in France regarding movie colorization (Goldstein Sec. 3.3.2.2.C), interpreting moral rights being "inalienable" as providing authors from foreign countries with full access to the French court system to assert these rights (at a minimum, inside France).

    Before discussing the Oscar Wilde case (described more fully at TRU reputation), Sec. 5.4.I.I.ii of Goldstein says, "The economic right of adaptation will sometimes overlap the moral right of integrity which similarly empowers authors to control changes in their work." Note that many kinds of derivative work or "spin-offs" are possible but these largely don't impinge on TRU integrity unless they have author consent, that is to say the Right-holder exercising their TRU adaptation.

    5. Benefits Benefits Right-holders. Constrains the permissible behavior of Middle-men.
    6. Possible digital support The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report).

    Integrity presents a number of unique challenges. Especially obvious is bit-accuracy either after transmission or confirmed as "going well" at the consumer-receiver device (or at least not going badly enough for a user to "sound the alarm" and complain). Arguably, provisioning is impossible without some easy way for the customer to report whether service is satisfactory or poor.

    Several integrity concerns are connected to both TRU reputation and TRU that sales displays will follow acceptable practice. This would not be too difficult to arrange within some support-alternatives for "Integrity" provisioning.

    7. Requirements DMP shall support the right for the author's work not to be tampered with (integrity)

    DMP shall support specifications for End-users to signal content-providers as to whether the final rendering, of whatever data transmission is agreed to, is well-received and functioning as intended, conversely End-users shall be enabled to interactively communicate - to a service provider including a content service provider - in order to indicate when reception is garbled or unusable.

    DMP shall support the ability for End-users to signal or communicate dissatisfaction with content, preserving a measurement of the exact moment of the objection as well as content source material being objected to, including the ability to downgrade the rating of a creator's reputation (a virtual "shame on you").

    DMP shall support the specification for delivery of display criteria such as would be suitable to ensure that a promotional campaign remained branded within certain acceptable limits, for example minimum size of display, acceptable range of prescribed colors, authorised descriptions and other strings of prose.

    8. References  

    25

    Criteria

    Description

    1. Name TRU of "First sale"/Personal loan
    2. Summary description After the initial purchase, the purchased digital media may be disposed of in any way the purchaser chooses.   Examples are, re-selling, loaning, giving away.
    3. Use records For some types of information carrying media such as books or phonorecords, the owner could use and dispose of what was acquired in any way the owner wanted.   Books could be given away or re-sold as could phonorecords.   Used books and albums stores are prevalent in almost any city of moderate size.
    4. Nature Title 17, Chapter 1, Section 109 of USC limits this TRU, in the case of audio recordings and computer software to cases where the owner of the copyright must give authorization for any use or disposal other than the original purchaser using the audio recordings or computer software.   Interestingly enough, there is no mention of restrictions regarding video content.
    5. Benefits
    • Users will be more inclined to purchase content that they are unsure of if they know they can re-sell it or give it away if they find it not to their taste.
    • A User will be able to share content with a friend or family member without worry to the copyright owner that mass distribution is taking place.
    6. Possible digital support Enable a complete transfer of rights from one User to another.
    7. Requirements The ability to revoke one’s own rights to access and transfer those rights to another.
    8. References  

    26

    Criteria

    Description

    1. Name TRU to transcode
    2. Summary description The ability of an individual to convert (readable, audible, visible,...) content from one media format to another media format.
    3. Use records Throughout the history, people used their abilities to fixate literary and artistic works on media that appeared most appropriate to them. With the invention of the printing press it became easy to replicate works. Nevertheless, people needed to transcode works if the media formats offered by the "content replicators" did not fit their needs. Some examples:
    • Handwritten pocket bibles in the 19th century
    • Compact Disk recordings of vinyl records playable on "Walkman" devices in the 1980ies
    • MP3 files converted from Audio CDs playable on laptops in the 1990ies
    • DivX files converted from DVDs playable on laptops in the 2000s
    • ASCII files distilled from Word Documents
    • Media playable contemporary media player devices transcoded from media designed for an outdated and obsolete technology
    4.   Nature Customary TRU, supported by copyright laws (fair use).
    5. Benefits The ability to transcode content to appropriate media formats makes media users independent from the distribution chains of the (mass) media industry. Media users trancode content if they feel the need to play it back on a device appropriate for a certain usage situation or if they wish to preserve it for future use (continued access). By their ability to transcode media (and by their ability to make playback devices), users can define, evolve and control their media usage.

    Industry players who couple content to media formats and playback devices might be negatively effected, since the users need not license content several times if they wish to play it back on different playback devices.

    6. Possible digital support
    • Document format converters
    • Audio- and video codecs (decoders and encoders)
    7. Requirements
    • Open standards for content encoding
    • Well documented content formats available to the public under fair and reasonable conditions
    8. References  
    27 Description
    1. Name TRU to make prohibited content inaccessible
    2. Summary description The ability to identify content not meeting standards of acceptance in a given region/local and to disable its distribution and/or access.
    3. Use records Full nudity in videos or graphic images illegal to own or even access in some countries. In virtually all regions, some content, audio and video is deemed too offensive or racially and/or socially damaging to be allowed for distribution.
    4. Nature Although it is desirable to provide the freedom to create, distribute and consume any kind of content with no restrictions whatsoever, the reality is that some of what people create is not helpful to improving society but instead, can be detrimental.
    5. Benefits Governments, and the people they represent, have some control over content that may be counter to maintaining peace and prosperity in their given regions.
    6. Possible digital support Government participation in rating content and determining acceptability and providing means for access devices to determine acceptable content in the region in which they make digital media accessible.
    7. Requirements The ability to determine applicable mandated restrictions in a given region.
    8. References  

    28

    Criteria

    Description

    1. Name TRU of time based advertising.
    2. Summary description The ability to include periodic advertisements during digital media access.
    3. Use records Since the advent of the first periodical, the creation and distribution of different types of information has been supported by the use of the inclusion of advertising along with the information delivered.
    4. Nature
    • Television and radio broadcasts include advertisements on a periodic basis, in some cases 5 minutes of advertising for every 15 minutes of programming.
    • News papers, magazines and even web sites on the Internet use the display of advertisements even in addition to paid subscription.   Generally the greater the level of subscription, the lower level of advertisements.
    5. Benefits
    • Users access costs are reduced as someone else is helping to pay for it.
    • Distributors are able to provide programming they otherwise could not if they were 100% dependant on subscriptions alone.
    6. Possible digital support Delivering advertising content along with the digital media originally requested as well as being able to specify the periodicity of its display.
    7. Requirements
    • The ability to carry and deliver different types and combinations of content in a single distribution.
    • The ability to define access time relationships between different elements of a given digital media.
    8. References  

    29

    Criteria

    Description

    1. Name TRU of digital media rental.
    2. Summary description Selling access to digital media on a time limited basis.
    3. Use records Originally it was thought that video rental stores would put movie theatres out of business but instead they provided an outlet for movies which would likely never see a theatrical release as well as created an market for the viewing of movies that had finished their theatre schedule.
    4. Nature Today, the video rental business brings in about 18 to 20 billion dollars.   Without it the only outlets for post-theatrical releases or titles that never made it to the theatres in the first place would be television and the airlines’ in-flight movie offerings.  

    And, considering that slightly less than 50% of movies produced ever make it to the theatre and the airline and television market mainly interested in acquiring what had been successful in the theatres, there would be little chance for the 50% not lucky enough to go the main distribution route.

    5. Benefits
    • Users access costs are reduced as they often don’t view a given title more often than a couple of times and they don’t have to store every single title they have ever watched.
    • Users have access to content from different regions that they wouldn’t have had access to before.
    • Releases that don’t make it to the theatres have a market.
    • Retailers and distributors can provide a wider selection of content to a wider base of potential users because there is no need to be concerned about seeking advertisers for a given title or satisfying a limited population segment.
    6. Possible digital support Being able to enable and disable access based on the time of access.
    7. Requirements The ability to base the granting of access on time restrictions or the ability to determine the length of “rental” upon which to base payment.
    8.    

    30

    Criteria

    Description

    1. Name TRU to freedom from monitoring
     
    2. Summary description The traditional right to use personal property without any reference to another authority. The freedom not to be observed whilst doing so, or to have one's usage recorded or tracked.
     
    3. Use records After purchasing a book [audio CD, video], no further communication with the publisher takes place on reading [listening, watching]. This is clearly related to privacy, but also underpins other TRUs such as the TRU to annotate for personal use (e.g. write marginal notes in a book) and the TRUs to time- and space-shift. Because the control over a book [audio CD, video] is determined solely by physical access to it, these other TRUs were inherently possible and not practically preventable.
     
    4.  Nature Customary, but may now be explicitly supported (to some extent) by human rights and/or data-protection legislation. Also legally supported in the sense that reading books [listening to audio CDs, watching videos] is totally outside the scope of copyright law because no copying is involved.
     
    5. Benefits All users may benefit; no-one is obviously negatively affected by this right per se.
     
    6. Possible digital support Digital support would be easy! The problem is that it might impact other functionalities. Therefore this TRU may not be supportable in all digital contexts to the traditional extent. The underlying legal situation is also different because in many jurisdictions almost any digital use currently constitutes copying (e.g. from disk into memory). Note that this distinction in law may have arisen partly because of the greater ease of monitoring digital transactions.
     
    7. Requirements Methods using offline verification (e.g. checking an inline digital signature) should be able to support this TRU completely. However, any client-server method would probably violate it to some extent; the properties of the client-server connection alone would reveal some information about the end-user. "Anonymity" could dissociate the personal identity of the user from the client-server interaction. "Tracking" would be monitoring that could be linked from session to session, and this could be inhibited by lower-level anonymity. But no form of anonymity is likely to be perfect, and in any case the TRU is partly an issue of principle.
     
    8. References  

    31

    Criteria

    Description

    1. Name TRU of reverse engineering
    2. Summary description Reverse engineering means "the process of extracting know-how or knowledge from a human-made artifact". [...] "Human-made artifacts refers to objects that embody knowledge or know-how previously discovered by other people. Hence, the engineering required to uncover the knowledge is reverse engineering". [1]
    3. Use records Throughout history of mankind, people disassembled nature-made and human-made artifacts in order to understand their inner workings. Here are some examples of use [2]:
    • Education: to learn Operating System programming by disassembling an OS
    • Investigation of potential infringement: to reverse engineer a competitor's product in order to determine whether they have used some (copyrighted) code in their product.
    • Interoperability: to reverse engineer a media format in order to read the data and make an application using this data.
      • DeCSS: The Linux community had to use reverse engineered assembler code in order to build a Linux DVD player [3]
      • Universal Remote Control: A Remote Control manufacturer wants to provide a device which is able to control Consumer Electronic devices from different vendors, some of them are not produced anymore.
      • Preservation and Emulation: "Two freelance programmers have been working (independently) on reverse engineering the data file stored on the videodiscs in order to enable the data to be displayed on a 'modern' Windows-based system". [4]
    • Investigation of Cosumer Fraud: to detect violation of consumer rights (e.g. violation of privacy rights of computer users by "spyware")
    • Security Improvements: to understand insecure computer software in order to develop more trustworthy systems.
    4.   Nature Customary TRU if information about the objects under investigation is not available under fair and reasonable conditions. Partly supported by laws [1].
    5. Benefits Society benefits from the "Freedom to Tinker" [5], since without the possibility of the users to understand, discuss, repair and modify technical devices, only a few industry players would be in the position to advance the progress of technology.

    Industry players trying to create monopolies by promoting proprietary standards and technology might be negatively affected.

    6. Possible digital support
    • Decompilers/ Disassemblers
    7. Requirements Sometimes reverse engineering is the only method to learn and understand about an undocumented technical object. In order to render it unnecessary, it is desirable that software and hardware documentation is available to the public, open standards are developed and published under fair and reasonable terms and the development of open source software is not prevented by software patents.
    8. References [1] - The law & economics of reverse engineering, Samuelson, Scotchmer, 2002
    [2] - Article 2B and Reverse Engineering, Kaner, 1998
    [3] - Critique of DVD CCA's claims about DeCSS, Andreas Bogk, 2000
    [4] - The Domesday Project, Andy Finney
    [5] - Freedom to Tinker

    32

    Criteria

    Description

    1. Name TRU of withdrawal/objection
    2. Summary description Moral right under several legal systems to either withdraw a published work from publication, requiring remuneration for Middlemen economically hurt by this, as well as the right to assert that a published work no longer reflects the creator's current views.
    3. Use records Although relatively few countries treat this as a formal moral right, it comes up more frequently under economic rights when a creator no longer feels that a work reflects their views and wishes to withdraw it from publication or at least disavow its content.

    The sort of verbal dialogue that could illustrate this would be if someone asked "Did you really mean that?" or "What were you thinking when you said that?" Possible answers to which could be "I meant it at the time but I don't feel that way now" or "I must have been out of my mind and I'm ashamed that I said that."

    Considering how mutable an artist's creative thoughts may be, it is easy to imagine that giving them the power to repeatedly assert this right could allow them to cause quite a nuisance. On the other hand, the principle involved deserves a certain respect and protection, particularly since competitors or enemies might seek to damage a person's reputation by publicizing the poor qualities of their previous creations.

    Examples could include politicians' statements made during an earlier period in their career, artistic works edited and hyped by Middlemen that then fall flat causing the artist to claim "that didn't reflect who I really am" during subsequent efforts to promote new works, periods of religious zeal causing output created during this period to have a dogmatic or tedious character, and the same result as the preceeding however caused by a proclivity for so-called "adult" content such as sex, violence or foul language.

    When competitors or enemies refer to works that a creator might wish to disavow, there is a tendency to misrepresent the time or context in which the works were made public. For example, an enemy could say "Do you know that he said ___?" to which the speaker might reply "That was 30 years ago and I had just been insulted. That doesn't represent who I am or what I really think."

    4. Nature A right rarely asserted and primarily supported by France, Germany, Italy and Spain (ref. Goldstein, International Copyright, Sec. 5.4.2.4). See also 59. TRU moral rights, with respect to the nature of moral rights generally. It is considered related to economic rights of reversion of ownership to the author or "termination of transfer".
    5. Benefits Benefits Right-holders and End-users. Can be adverse to Middle-men.
    6. Possible digital support The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report).

    It should not be too challenging to provide fields in a reputational database allowing creators to express negative comments about their own previous work.

    7. Requirements DMP shall support the right of withdrawal/objection

    Note the proposed Integrity RQs support most of what's needed for this.

    8. References  

    33

    Criteria

    Description

    1. Name

    TRU of fair use

    2. Summary description

    Fair Use is an important limitation on an author's or copyright holder's exclusive reproduction rights. Fair uses of content traditionally include such activities as copies for scholarship, research, news reporting, comment, criticism, and parody.

    3. Use records

    The main justification for the 'Fair Use' doctrine has always been to balance public and copyright owners rights but in turn this generates a tension between copyright holder's and consumer's interests that is as evident today as it has always been.

    'The idea of fair use appeared in England at the beginning of the 19th century in the case of Cary v. Kearsley where the court recognized a right to “fairly adopt part of the work of another” in order to avoid putting “manacles upon science” .' [H]

    Traditional Fair Use:

    Quotations - 'It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. ' [K] Also see TRU #1 to Quote, http://www.chiariglione.org/contrib/040120merrill01.htm , for a wider discussion.

    Making personal copies appear to be considered 'Fair Use' in some jurisdictions but are an explicit limitation in others. (See TRU #2 to make personal copy, http://www.chiariglione.org/contrib/040113dulong01.htm )

    Educational use - 'to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.' [K] Also see TRU #54 Right of copying for classroom instruction, http://www.chiariglione.org/contrib/040720merrill03.htm )

    Further categories that are listed as fair under United States Code, Title 17, Section 107: [C]

    • criticism

    • comment

    • news reporting

    • teaching

    • scholarship

    • research

    It is probably worth reporting some allowed uses that are not 'Fair Use':

    • Consuming the content , reading the book, listening to the music, is not 'Fair Use' it is unregulated use. [F]
    • Selling or lending an authorised reproduction of the content is a 'First Sale' limitation on the rights holders exclusive rights and does not rely on the 'Fair Use' limitation. (See TRU #25 of First Sale, http://www.chiariglione.org/contrib/040119schultz01.htm )
    4.  Nature

    'Fair Use' also goes by the name 'Fair Dealing' in a number of jurisdictions, particularly the United Kingdom [G] and Canada. In this report the term 'Fair Use' is used throughout to refer to this limitation of the copyright holder's exclusive reproduction right.

    Legal Support:

    To take the United States as an example:

    The judicial doctrine of fair use, one of the most important and well-established limitations on the exclusive right of copyright owners, would be given express statutory recognition for the first time in section 107. The claim that a defendant's acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the years, and there is ample case law recognizing the existence of the doctrine and applying it. [D]

    The United States Code, Title 17, Section 107, Limitations on exclusive rights: Fair use, gives a good example of laws protecting 'Fair Use':

    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    (2) the nature of the copyrighted work;

    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [C]

    'No one of the factors is decisive; the court must weigh all the factors and compare them “in the light of the purposes of copyright”.' and 'When judging transformative uses, courts must consider the extent to which the second work simply replaces the first of contributes something additional,' and 'At issue in many transformative use cases is the commerciality of the second work, for a commercial use seems to overtly harm the original work's market potential by depriving it of potential revenue'. l

    'Fair Use' has both traditional and legal support but the legal support is vague; 'He [the user claiming fair use] doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. ' [E]

    The main international treaties covering 'Fair Use' are:

    • The Berne Convention for the Protection of Literary and Artistic Works (1886), Article 9, allows fair uses 'provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. ' [J]

    • TRIPS, Agreement on Trade-Related Aspects of Intellectual Property Rights [L]

    • World Intellectual Property Organiwation (WIPO) Copyright Treaty [M]

    Note: This analysis is by no means exhaustive, at best it is a summary of the issues. Readers are advised to consult the extensive documentation available on this subject a little of which is referenced at the end of this report.

    5. Benefits

    Helps support the copyright aim 'To promote the progress of science and useful arts' by applying another limit to the rights holders exclusive rights.

    In addition to the activities described above such as reporting and education 'Fair Use' is also important in preserving competition. For example, directing consumers to the copyrighted content and for the purposes of comparative advertising [A].

    Maintaining the copyright balance is one of the most difficult challenges in this area of fair use. Excessive 'fair use' privileges for the consumer could adversely affect the copyright holder's willingness to license or sell their content while, on the other hand, if consumers perceive 'fair use' restrictions to be excessive it may affect their choice of business model.

    6. Possible digital support

    Digital support facilitating fair use:

    • Digital devices can facilitate non-infringing reproductions that could dramatically support 'fair uses' of the content. A teacher could easily, quickly, and cheaply make multiple reproductions for all her students to enable study of the work. A reviewer can easily and accurately select a section of text and paste it as a quote in the article where she is reviewing the content.

    • Digital devices could automatically transfer author and rights holder attribution whenever they make non-infringing reproductions for 'Fair Use' and can even transfer Internet locations for further rights information and the source of legal copies.

    • Digital devices could automatically remind users who are making reproductions that they are only legally entitled to do this if they are licensed to do so by the rights holder or are making the reproduction for 'Fair Use' purposes. Digital devices connected to the Internet could then easily direct the user who is unsure of what represents 'Fair Use' to a site detailing the local laws governing 'Fair Use'.

    Digital support for regulating fair use:

    • Allow for reproductions that are not authorized by the rights holder. Thus not impinging on an important limitation on the exclusive reproduction right.

    In view of the problems in judging if a use is fair:

    'An appropriate analysis of fair use requires consideration of four factors (the purpose and character of the use, including whether such use is commercial in nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use on the potential market for or value of the copyrighted work). Evaluating each factor can be a difficult judgment, even for lawyers and judges.' [B]

    It is difficult to see how regulating reproduction can be accomplished automatically by a DRM system. At one level, say education, reproducing the entire work might be considered 'fair' at another level reproducing the smallest portion, say a catchphrase or melody, that is then used commercially might well be judged infringing.

    • One area where DRM might help regulate 'Fair Use' that does not rely on making a legal judgement would be to record who is making the reproduction and then this person can be brought to account at a later date if the use is judged not to be fair. This recording action might, however, introduce its own complicating issues such as privacy and reliability of the information recorded.

    • Another function to promote only fair use reproductions would be to remind the user, as mentioned above, and have the user confirm they are claiming 'Fair Use', by clicking an 'I agree' button, before the reproduction is made.

    7. Requirements

    DRM devices would have to work in multiple jurisdictions where the definition and interpretation of 'Fair Use' varies.

    Any technology that limits the use of the content might be increasing the scope of the copyright holder's rights beyond the level supported by copyright.

    8 References

    [A] DRM: The Good, the Bad, and the Ugly, John T. Mitchell - http://interactionlaw.com/documentos/DRM_good_bad_ugly.pdf

    [B] The Digital Delemma, Intellectual Property in the Information Age - http://www.nap.edu/html/digital_dilemma/ch4.html#FOOT13

    [C] United States Code, Title 17, Section 107 - http://www4.law.cornell.edu/uscode/17/107.html

    [D] Historical and revision notes house report No. 94-1476 - http://www4.law.cornell.edu/uscode/17/107.notes.html

    [E] Lawrence Lessig, Fair Use and Misuse, http://www.lessig.org/blog/archives/002119.shtml

    [F] Lawrence Lessig, Testimony on “The Digital Media Consumers’ Rights Act of 2003” , page 7 - http://www.lessig.org/blog/archives/hr107.pdf

    [H] For this comment and more history of copyright; see; iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media , page 68 - http://cyber.law.harvard.edu/media/itunes

    [G] Fair Dealing, Copyright, Designs and Patents Act 1988 (c. 48) , chapter III - http://www.hmso.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm

    [J] Berne Convention - http://www.wipo.int/clea/docs/en/wo/wo001en.htm#P138_25113

    [K] Berne Convention, Article 10 - http://www.wipo.int/clea/docs/en/wo/wo001en.htm#P138_25113

    [L] TRIPS - http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm

    [M] World Intellectual Property Organiwation (WIPO) Copyright Treaty - http://www.wipo.int/clea/docs/en/wo/wo033en.htm#P84_10623

    [N] iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media , page 72 - http://cyber.law.harvard.edu/media/itunes

    34

    Criteria

    Description

    1. Name TRU of reproduction
    2. Summary description broad right to exclude others from copying protected material (unless authorised to do so), implemented with many national variations, generally including listed exceptions
    3. Use records 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). Like TRU to quote, reproduction is primarily covered by Berne and WCT/WPPT internationally and it is enforced nationally.

    In earlier times, the exercise of this right included analogue restrictions that do not directly translate to digital:

    Note that reproduction can be so broad as to encompass all Right-holder TRUs especially TRU distribution, including lending and rental, yet also including TRU broadcast and TRU performance. The right to reproduce is often embodied in law with regards to "subject matter" analogue media type, for example "phonograms" and "cinematic works". Since the 1996 WCT/WPPT, two new TRUs connected to reproduction have been broadly adopted, adapted to the phenomenon of digital media:

    The history of TRU reproduction is long and varied. It cannot be emphasised enough that TRU reproduction is restrictive, giving the creator the right to restrict expression when others seek to reproduce a significant number of copies. It is so restrictive as to be "exclusive" giving the Right-holder the right to exclude potential infringing competitors by calling on the law for national enforcement. Simultaneous with this, some fair use copying has always been accepted, notably quoting, news, classrooms, and official announcements.

    In some ways reproduction is like a belt - it only holds things together because of the fair use holes in it. Ironically, reproduction was not explicitly mentioned in early Berne. "The reproduction right, though regularly protected under national law, did not appear in the 1886 text" GIC 2.I.2.I.A, see also footnote 69. "In practice, reproduction rights were universally recognized under national legislation, but the exceptions to these rights varied considerably from country to country" R 20 and see footnote 47. Its introduction came with what is commonly referred to as the Article 9(2) exception allowing anybody to do anything provided the "three-step test" criteria are all met, see breakdown R 20-27. As far as the ability to make new exceptions, 9(2) is like an awl or drill that can make a hole in anything.

    A long history of large and small industrial Middle-men have shaped the past of reproduction, notably the Stationers Guild. Goldstein gives a nice account of the Stationers' first claim in 1706 that they represented the rights of authors (GCH Chapter 1, 33-35) and he ends Copyright's Highway with a reference to this historical landmark. It is worth noting that Middle-men have a tendency to assert that most titles lose money. It has followed from this that organisations of Middle-men have often been in the best position to call for law enforcement through costly lawsuits. The advocacy work of many creators should be noted including Victor Hugo, Charles Dickens, Mark Twain (see to U.S. Congressional committee) and the opera composer Giacomo Puccini. Also notable is Supreme Court Justice Oliver Wendell Holmes, Jr. whose father was an author.

    Because history has taken reproduction into the digital era there is now also a treatment for it there. On the other hand, the digital approach of WCT/WPPT is somewhat antithetical to the traditional history of copyright. Goldstein says, "Other than its inclusion in the text of a copyright and a neighboring rights treaty, the anticircumvention requirement has no connection—indeed is antithetical—to the philosophy of copyright generally, that privately enforced rights mediate more efficiently and equitably between authors and their audiences than do physical or technological fences." (GIC 5.4) See treatment at TRU communication to the public and TRU technological access restrictions.

    It should be noted these two digital, post-Internet TRUs do not require mapping to the digital domain and should probably be excluded from any such mapping. They primarily govern DMP in the form of applicable treaty language. As far as our mapping project into the digital domain, their main use might be the assignation of TRU to technological access restrictions after the fact to those RQs that seem required by the use of digital security technologies such as encryption key management.

    4. Nature Treaty reference to TRU reproduction includes WIPO Performances and Phonograms Treaty (for audio, not applicable to literary and artistic works) Articles 7 and 11 (GIC 2.2.3). U.S. copyright law grants TRU reproduction at 17 U.S.C. section 106(1) "to reproduce the copyrighted work in copies or phonorecords" (link to code)

    Worthy of immediate note is GIC 5.4.I that ideas are not protectable by copyright, only expressions of ideas can be protected. The building blocks of thought and ideas are not covered by RH TRU reproduction. The sharing of ideas can cause many liberalities to be required, and has also consistently led to cases of creative "stealing" as well as commercial misconduct (e.g., misstatement of source).

    This TRU also has general coverage of TRU adaptation which requires many issues to be addressed regarding derivative works, inclusion, linking, TRU quote, ecommerce opportunities, and limited rights of circulation within the private home network, ref. GIC 5.4.I.I.A(ii).

    At GIC 5.4.I.I.A(i), Goldstein introduces his treatment of the "Reproduction Right" by saying, "Historically, the right to make copies of a copyrighted work is the seminal author's right, the law's response to the invention of moveable type." He later points out the tension between technological access restriction and copyright, saying, "Contemporary technologies for the transmission of copyrighted works have presented a challenge to effective definition of the reproduction right."

    There is a spectrum from printers to the Internet using different reproduction technologies with differing analogue properties — generally referred to as different "subject matter" (although that phrase is also sometimes used, less properly, for the purpose of usages). Goldstein cites France's Intellectual Property Code Art. L 122-3 (footnote 564), "Reproduction shall consist in the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way." This shows the spectrum from physical fixation — a basically analogue concept — and the right of communication which was adopted and adapted to cover digital Internet transmissions in the 1996 WCT and WPPT treaties. It is noteworthy that the chaos of trying to cope with the steady development of new reproduction technologies caused most new technologies to be first and/or primarily covered by "neighboring" rights of TRU reciprocal protection.

    Although the creator's exclusive right to restrict reproduction is legally supported and well-established, it conventionally occurs along with an extensive list of exceptions. For example, on pp. 42-3 of Ricketson (link above) appears an "Illustrative Table of limitations and Exceptions Under Berne" listing the following 17 subject matter exceptions (note: seven are justified by informatory purposes).

    official texts (literary works or LW) — Article 2(4)
    Justification: informatory; Limitations/Exceptions/Compulsory License: limitations; Mandatory/Permissive: permissive; Rights: all; Conditions: none
    news of the day and press information (LW) — Article 2(8)
    Justification: informatory; L/E/CL: limitations; M/P: mandatory; Rights: all; Conditions: none
    political and legal speeches (LW) — Article 2bis(1)
    Justification: informatory; L/E/CL: limitations; M/P: permissive; Rights: all; Conditions: none
    public lectures, etc. (LW) — Article 2bis(2)
    Justification: informatory; L/E/CL: exceptions; M/P: permissive; Rights: reproduction, all rights under Article 11bis(1); Conditions: informatory purpose
    general (all works) — Article 9(2)
    Justification: general; L/E/CL: exceptions, compulsory license; M/P: permissive; Rights: reproduction; Conditions: three-step test
    quotation (all works) — Article 10(1)
    Justification: informatory; L/E/CL: exceptions, compulsory license; M/P: mandatory; Rights: all; Conditions: 1 fair practice, 2 justified by purpose
    illustration in teaching (all works) — Article 10(2)
    Justification: educational; L/E/CL: exceptions, compulsory license; M/P: permissive; Rights: reproduction, all rights under Article 11bis(1);
    Conditions: 1 illustration, 2 fair practice
    newspapers, etc., articles, broadcast works (LW) — Article 10bis(1)
    Justification: informatory; L/E/CL: exceptions; M/P: permissive; Rights: reproduction, all rights under Article 11bis(1); Conditions: 1 no reservation, 2 indication of source
    reporting current events (all works) — Article 10bis(2)
    Justification: informatory; L/E/CL: exceptions; M/P: permissive; Rights: photos, cine, all rights under Article 11bis(1); Conditions: informatory purpose
    broadcasting (all works) — Article 11bis(2)
    Justification: public access; L/E/CL: compulsory license; M/P: permissive; Rights: all rights under Article 11bis(1); Conditions: 1 equitable remuneration, 2 moral rights respected
    ephemeral recording (music and words) — Article 11bis(3)
    Justification: convenience, archival preservation; L/E/CL: exceptions, compulsory license; M/P: permissive; Rights: reproduction; Conditions: 1 must be "ephemeral", 2 "exceptional documentary character" (archival)
    recording of music and words — Article 13(1)
    Justification: new industry; L/E/CL: compulsory license; M/P: permissive; Rights: reproduction; Conditions: 1 already recorded, 2 equitable remuneration
    cine works — co-authors (limited) — Article 14bis(2)(b)
    Justification: convenience; L/E/CL: exceptions; M/P: permissive; Rights: reproduction, all rights under Article 11bis(1), public performance; Conditions: no contrary stipulation
    censorship (all works) — Article 17
    Justification: state power; L/E/CL: limitations; M/P: permissive; Rights: all rights; Conditions: must be for censorship reasons, none other
    three implied/ancillary agreements between member states
    • minor reservationsJustification: de minimis; L/E/CL: exceptions; M/P: permissive; Rights: public performance, all rights under Article 11bis(1), public recitation;
      Conditions: de minimis
    • translationsJustification: necessity; L/E/CL: exceptions; M/P: permissive; Rights: reproduction, public performance, public recitation, all rights under Article 11bis(1) however not Articles 11bis or 13; Conditions: those applicable under Articles 2bis, 9(2), 10 and 10bis
    • anti-monopoly controlsJustification: state power; L/E/CL: limitations; M/P: permissive; Rights: all rights; Conditions: must be for anti-trust reasons, none other
    It should be noted that these are only the limitations and exceptions in Berne and that a great many more exist, particularly regionally limited ones (fewer are recognized by international treaty but homegrown exceptions flourish like U.S. "homestyle" business establishments being exempt from royalty payments to collecting societies, which is currently being challenged in international court).
    5. Benefits Although TRU reproduction is generally considered to benefit Right-holders exclusively, the traditional exceptions that normally come with it benefit End-Users, so this TRU can be considered from either a narrow RH-only or a broader RH/EU point-of-view.
    6. Possible digital support TRU reproduction is likely to be supported by the basis of DMP and its workplan. Strong DRM supplies an unlimited ability to shut-down reproduction, so support of this TRU becomes a matter of the interactivity allowing authors to control their works as items of digital media, as well as support for the three "watchwords" covered in this section of TRU technological access restrictions: granularity, flexibility and extensibility.

    As this is an economic right, it is worth noting that the primary measure of whether it is supported is whether it is economically successful.

    Note issue of support for artists working through Middle-men.

    At 5.5, Goldstein makes a most important argument that I will reproduce at length in order to discuss possible digital support: "Article 9(2)'s second requirement, that the reproduction 'not conflict with a normal exploitation of the work,' aims to fortify authors' interests in their accustomed markets against local legislative inroads. An obvious circularity underlies the requirement. At least historically, an author will normally exploit a work only in those markets where he is assured of legal rights; by definition, markets for exempted uses fall outside the range of normal exploitation. Consequently, it might be thought that to expand an exemption is to shrink the 'normal market,' while to expand the definition of 'normal market' is to shrink the permitted exemption. Common sense offers the surest guide out of this logical paradox." I suggest we can do a great deal better with DMBM development, so that common sense might have a field day. For example, the case of an author crafting a once-and-for-all DMBM that never changes should be supported, however more amorphous and statistical DMBM's can also be allowed to form in very liquid and transitional states, only firming up into stricter more rigid DMBMs when certain threshholds are passed. For example, supporting an artist's full-time livelihood can be used as one of several common sense measures of such a threshhold — that at a certain point, things get serious and then stricter DMBMs apply. However the very DMBM that applies could grow 'genetically' from the digital marketplace such that sharing usages were all caught up in the process of the DMBM's formation. This is especially likely to be applicable to TRU regional pricing.

    Note the question as to whether or not we are crafting actual, real-world DEUs that form a set of creator's rights (or, more properly, options). Since the creator is the End-user, the distinction between sharing-ideas TRUs and these more intellectual property ownership type rights is inherently interesting. Properly defined (by RQs) they should illustrate two different sides of human nature, analogous to speech versus hearing.

    The '90s White Paper suggested the use of "rules for managing copyright information so that users could know the identity of a work's author and owner and whether they were willing to allow use of the work" (GCH Chapter 6, 185).

    7. Requirements DMP shall support the right of reproduction
    8. References  

    35

    Criteria

    Description

    1. Name TRU of economic exploitation
    2. Summary description a creator's right to receive economic benefit from their intellectual product normally comprising a predictable distribution chain such that uses outside of that might be considered fair use; for movies a conventional media exploitation chronology supposes theatrical release followed by tape/optical media sales followed by pay TV then cable premium channels and then broadcast television
    3. Use records Beginning with the creation of a primitive glob of intellectual property -- virtually valuable but of little physical financial value -- the challenge for any Author or other creator is to turn that glob into money. Everything about how the money comes in and what the writer, artist, performer, or other creator of some original IP has to do to get that money becomes vitally important to the person the money is coming to.

    For example, at one point decades ago, rock star Billy Idol was supposedly confronted about his shocking appearance and clothing and answered, to paraphrase, "Don't ask me. Ask my label. They're the ones who decide what I look like. It's in the contract." This anecdote might be false, but it illustrates the trade-off a top pop star might make between wearing what they want to wear versus becoming millionaires who wear what the record label tells them to.

    A major issue for artists is advances on income, since these are at times the only money an artist will receive for a project. In itself, an advance is preferable to doing everything "on spec" -- for nothing, or speculatively. Unlike the money that eventually comes in, drifting in slowly as it passes through the hands of many Middle-Men (players on this value-chain that permits revenues to eventually come back to the Author), an advance is money an artist can put in their pocket right away and start spending. This can be critical for producing or performing the work. For example, one new age recording artist said he generally spent half of his advances on projects buying new gear to use for that recording.

    Several major clusters of TRUs have been written in templates for Authors and other creators, and these may be examined for an overview of the scope of economic exploitation that an Author or artist might generally feel entitled to:

    • TRU moral rights -- In some ways the paramount thing for an Author is their name as it will appear in materials letting the public know how to buy their globs of IP, and subsequently the Author needs what is delivered to the End-User to have sufficient quality so as to be a good representation of their work.
    • TRU reproduction -- Copying has traditionally been critical to analogue distribution and meaningfully charging people for the consumption of IP, and of course digital copying now unleashes a greatly increased capacity for worldwide copying and transferring of IP-sensitive materials.
    • TRU to restrict performance -- Performance rights may seem hazy and are often administered by a collecting society (this administration can also seem hazy to the uninitiated). However, these can mean millions of very specific dollars for a successful title. A public television show once said songwriter Irving Berlin's donation to the Boy Scouts of America coming exclusively from royalties for the song "God Bless America" amounted to six million dollars. So whatever happens in the loose copying land of performance money, something meaningful is happening economically to generate that much cash.
    The template for TRU to restrict performance refers to a metaphorical "stream of economic exploitation". This is what happens to the Author's glob of IP so that money drifts back to the author along the value-chain. Although the metaphor is particularly suitable to performing rights (or defining boundaries for fair use), it applies equally to TRU moral rights and TRU reproduction. This metaphor is vague, however, intentionally jumbling together a multitude of economic TRUs and transactions into a unity concealing ordered chaos -- much like the classic illustration of the telco cloud used in diagrams of Internet data transmission.

    Greater detail can be visualised by imagining timelines for an IP glob's "media exploitation chronology" (see also citation at TRU lending), as described in the Summary above. The crux of the problem for Digital Media Usages is that so many of them are unexpected, unlicensed and unable to be assigned a fair market value, leading the programmers who enable them to make excessive claims of TRU fair use. In other words, a normality became blessed by time and practice in the world of analogue media allowing the path of the stream of economic exploitation to be relatively predictable (although this has been complicated since Star Wars by extremes of franchised cross-market merchandising). Whatever predictability exists at present for Digital Media, it generally does not involve very remunerative returns.

    4. Nature Article 9(2) of the Berne Convention says, "It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author." This 3-step test approach has been followed in other treaties and can be considered to enshrine this notion that analogue media follows a predictable general course of "normal exploitation" (although see Paul Goldstein comment under "Possible Digital Support" at TRU reproduction).

    Much of the conflict between Digital Rights Management and "fair use" that presently polarises opinion regarding digital Usages results from the fact that Digital Media does not have a settled and normal path for revenues to travel back up a distribution chain to Authors and other Rights-Holders. WIPO treaties and international practice have instead focused on enabling TRU technological access restrictions, and these have been overly restrictive, lacking in flexibility, non-interoperable, etc.

    5. Benefits Authors/Rights-Holders and Middle-Men.
    6. Possible digital support This is of course key to the success of DMP's goals, since the development of interfaces for the value-chain connecting Author to End-User could provide an unprecedented range of choices to allow the underlying Work in a piece of Digital Media as well as the distribution of DM Content to be economically exploited.

    At sec. 3.2.3.I of International Copyright, Paul Goldstein says, "Characterized at the highest useful level of abstraction, an economic right subject to national treatment under the 1971 Berne Paris Act consists of three elements: it is effective against the world at large; it enables the author to control, or benefit from, the use of a literary or artistic work; and it values the use of the work, however roughly, proportionate to the work's success or prospective success in the marketplace." The first of these could be considered to be supported by technological access restrictions. The second and third will be referred to here as "control" and "valuation" respectively.

    Enabling a multitude of DMP controls for "media exploitation chronologies" could improve an Author's potential economic success in many ways. For example, the initial distribution of a work often involves a promotional window in which remuneration is less important than "getting the word out". Aggressive promotional measures followed by a closing off of this period in which people are encouraged to "taste for free" could be managed in real-time through a Device's user interface. There is generally also a subsequent window of maximum sales potential, and the opening and closing of this period of time could also be better exploited with advanced, digitally enabled means of control.

    Goldstein's point on "valuation" pertains among other things to TRU of equitable remuneration. Industry bodies could assign minimum values or provide for Rights-Holders to be able to waive any charge, and then premium, highly desirable Usages could be priced with a valuation that was broadly arrived at through initial auction or subsequent statistical measurements of frequency and type of use.

    7. Requirements none at this time
    8. References  

    36

    Criteria

    Description

    1. Name TRU of distribution
    2. Summary description 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 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 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 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  

    37

    Criteria

    Description

    1. Name TRU of contractual commerce
    2. Summary description A broad right pertaining to TRU political freedom because the ability to do commerce requires a degree of social stability for financial transactions governed by agreements to succeed; the right to pursue commerce including contracts -- the fixation of mutal agreements -- is legislatively governed by a myriad of large-to-small commercial laws
    3. Use records According to whether this TRU is looked at from a Public Authorities perspective or else a businessperson's perspective, it presents divergent views -- governments regulate commercial contracts and forbid many transactions, but a businessman functions from a perspective of freedom, emphasizing what can be done and negotiating any of a huge variety of permitted contracts. In the real world, many forbidden contracts are executed and signed but can be (wholly or partially) unenforceable in court. Aside from governmental interference, a businessperson's freedom to negotiate is most likely to be restricted by negotiating partners who are in a strong position to make demands.

    The prospect of mutual benefit has enticed many people to form agreements. In the analogue world, a classic example is when two people each have something the other person wants because both things can be used to greater value if an exchange is made. One can imagine applying DMP Terminology to this by picturing the terms and conditions of an agreement as a Value-Expression in which the defined elements of the Expression are considered of sufficiently equal value to be exchanged. The parties to the exchange have been part of the value-chain for whatever each gives and subsequently become part of the value-chain for whatever each receives. As stated, this is not intended to refer to digital matters specifically, and indeed digital considerations present economies that can make profit and large mark-ups for resale quite challenging. In the conventional analogue view, it is more common that something is transported from someplace that has plenty of it and exchanged for something that is more scarce so it can be sold at a profit.

    4. Nature Although this is one of those TRUs that can be considered as old as civilisation itself, or even older than that, the specifics of what commercial contracts can be pursued vary greatly in their details. The U.S. is an example of an extremely commerce-friendly environment. Its federal government regulates interstate commerce; a Uniform Commercial Code provides detailed overall guidance for many matters; its court system is extremely friendly to the enforcement of contract language, for example real estate leases. The U.S. think tank Cato Institute routinely placed a great value of this TRU as possessing multifacted and vital benefits (e.g., http://www.cato.org/dailys/01-20-04.html). At one time so-called "freedom of contract" was an accepted doctrine in U.S. law (e.g., http://www.independent.org/publications/tir/article.asp?issueID=21&articleID=255), but was undercut by social regulatory concerns such as fair working conditions and hours.

    The capacity granted by a sovereign to its population for the formation of agreements can be an engine of social change and transfer of wealth. This TRU has disruptive potential and yesterday's agreements are susceptible to negation by present day realities. For example, European history has numerous examples in which mercantile interests became increasingly wealthy only to find all or much of their wealth seized in order to pursue sovereign interests such as military concerns. Some historians believe that the concepts of widespread individual rights and property rights were brought about by the desire of merchants to avoid this.

    5. Benefits Middle-Men in general benefit and commercial contracts could be considered primarily to occur business-to-business. Although Authors and End-Users engage in many activities that are governed by contracts, a signed contract is not worth much without funds to hire attorneys and the availability of a dependable court system. Public authorities benefit from taxes on wealth created by profitable agreements.
    6. Possible digital support It is particularly interesting that much of this analogue TRU involves fixated physical media in a small number of certified copies. That would not be hard to reproduce in DM, especially considering all the protections built in for security anyway. This could be the basis for a DMBM of forensic video, in that field contracts could be made in a Gobi desert scenario by combining video recording with third-party registration of a final digital "master" version including declarations of context and terms following an overall approach necessary for it to be used in court (e.g., names, preferably no cuts/edits).

    In addition, the fullest realisation of the Digital Media Manifesto vision would require innovative contracts and licensing as well as innovative technology. The standardisation of contractual terms and conditions protecting Authors and creators of other types could be pursued by representative industry bodies in a progressive and proactive manner, potentially enabling digital and unprecedented economic activities. For example, the comment was made on a DMP e-mail reflector regarding TRU to edit for personal use: "I would expect that long before laws guarantee extensive personal editing rights for audio/audiovisual materials, such usages would need to become common practice within the scope of mutually beneficial business agreements." Many things DMP would probably like to see enabled for common use in the digital environment might need to demonstrate their viability through contractual commerce before becoming widely granted rights.

    Support for this TRU is also likely to help support for TRU to choose mode of economic compensation.

    7. Requirements none at thistime
    8. References  

    38

    Criteria

    Description

    1. Name TRU of reciprocal protection
    2. Summary description reciprocal protection is a complex exchange based on a value-expression permitting complementary but not identical performance. Between nations, reciprocal protection often means treating authors from foreign countries the same way a country would normally treat its own nationals. The neighboring rights of performers might also be handled under reciprocal administration agreements between collecting societies. In principle, reciprocal agreements and exchanges (between private or corporate parties) should be digitally supported by DMP
    3. Use records Almost the whole of international copyright law uses principles of reciprocal protection to a certain extent. In particular, reciprocal national treatment underlies how most international treaties are applied. A court in a given country treats members of that country a certain way and based on treaty, can extend that treatment to members of other countries. Most bilateral and international intellectual property treaties are founded on a reciprocal offer: "You treat our guys like your guys, and we'll treat your guys like our guys." The treaty may produce local legislation supporting new laws that would then be applied by each court in each country separately. In fact, the enabling legislation might differ in particulars, leading to very different handling of specific court cases. Added variety is provided by the international collecting societies, imposing additional unique treatments to administer "rights".
    4. Nature Reciprocal protection through "national treatment" underlies much of international copyright law, particularly between public authorities and between collecting societies. In section 5.2.2.3 of International Copyright, discussing collecting societies, Paul Goldstein says, "Reciprocal representation agreements provide the economic link between a collecting organization in one country and its counterparts in other countries. Under these agreements, each society undertakes to represent in its own country all the works in the library of the other. Professor Gunnar Karnell has observed that a fundamental provision in most of these cross-national agreements is that in each country all holders of rights, regardless of the organization to which they belong, are treated in exactly the same way." Goldstein then quotes Karnell, "Thus, the organizations apply the national treatment principle proclaimed by both the Berne Convention and the Universal Copyright Convention." As described under TREATIES at TRU to restrict performance, Rome, TRIPS and the WIPO treaties WCT and WPPT can be added to the list of treaties proclaiming national treatment.

    Colorful conflicts can arise from reciprocal national treatment. Goldstein gives two good examples.

    • sec. I.2.2 -- If one country doesn't consider a creative product to be a "literary or artistic work" but a second country does consider that same product to be one, then the first country does not have to protect the products from the second country as "works" but the second country will have to protect products from the first country.
    • sec. 3.2.3.2 -- Germany follows the Rome Convention, the United States does not, but they both adhere to TRIPs. So Germany would have no obligation to protect U.S. phonograms since the U.S. does not belong to the Rome Convention, but Germany would be obligated by TRIPs to protect "the same U.S. performer against the unauthorized communication to the public of a live performance as prescribed in TRIPs Article 14(I)."
    Goldstein also notes that TRIPs imposes its own special variety of obligation because it is generally based on the protection of intellectual property of all kinds, which is very different from copyright's formulas for how to treat "works" (sec. 3.2.3.2).

    At http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf p. 48, Sam Ricketson calls attention to Berne's Article 20, which allows bilateral agreements and alternative agreements provided that they deliver better-than-Berne protection. It is interesting that systems of reciprocity can nest like this. Berne Article 20 says, "The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable."

    5. Benefits Normally undertaken by Public Authorities for public purposes, so potentially benefitting all Users.
    6. Possible digital support Seems like a REL matter, requiring different rules to be applied for different countries.
    7. Requirements respect for national differences
    8. References  

    39

    Criteria

    Description

    1. Name TRU of respect for sale royalties terms and conditions
    2. Summary description Part of the trio covering what users and consumers are bound by - in terms, conditions and legal liability - when transactions are made by sale, performance or resale. In this case of sale, for example, first sale doctrine in the U.S. exhausts the distribution right, but this does not necessarily carry over to digital (and it certainly does not apply in many other countries). Even when rights exist, contractual agreements often cut across those rights. Electronic sales should be able to come with a variety of very interesting terms and conditions indeed, some of them allowing free use, and/or use conditioned by the context of a marketing promotion.
    3. Use records This TRU has a somewhat sorry history, and the Use Case histories of the rest of the "trio" (see above) are also pathetic. Basically, because of the structure of law and society, use of a videocassette or audiocassette has been strictly regulated. Although this regulation has many benefits, it creates a very one-sided set of terms and conditions - so much so as to be somewhat deceptive except the traditional legal practice regarding specifics has mostly avoided troublesome lawsuits. The issues presented by terms and conditions used to be harmless to ignore because of the playback nature of analogue media but it is no longer harmless in the digital domain. For DMP, sale terms and conditions should be part of a conscious, up-front sharing of information with the user. It should, at least under some circumstances, seize their time and attention the way an airline attendant does before take-off.

    Note that end-user license agreements are often unread.

    Note that many Internet users have an objection to this TRU because their idea of the terms and conditions is that if they buy a CD they can do anything they want with it. In the old analogue playback context, this too was (relatively) harmless.

    4. Nature Currently the basis of a number of RIAA lawsuits and settlements.
    5. Benefits Record labels, movie companies, music publishers, writers, directors, producers, etc.
    6. Possible digital support The sky is the limit as far as tying up a user's time and attention to get them to agree to extensive sales terms and conditions. Anything from boot camp to just not bothering is possible. DMP can strike many happy mediums. However, certain user interface issues are still under discussion as far as how to convey terms and conditions or alternative permissions (for sale) as clearly as a nutrition label in the U.S. does its job. For example, on the web this could be handled effectively with drop-down menus (a DMP-er demonstrated this) and/or dynamic form (text) fields.
    7. Requirements DMP DRM shall support the straightforward communication of terms and conditions (a knowing, consensual agreement) pertaining to the user's use of digital media content.
    8. References  

    40

    Criteria

    Description

    1. Name TRU of respect for performance royalties terms and conditions
    2. Summary description Part of the trio covering what users and consumers are bound by - in terms, conditions and legal liability - when transactions are made by sale, performance or resale. In this case of performance, it is extremely likely that the user or consumer has absolutely no idea as to what the legal doctrine of "performance" is, how it applies to them or how revenues are shared between collective management societies, publishers, songwriters and artists (recording "covers").
    3. Use records A good example of performance is a consumer of radio broadcasts hearing a famous artist sing a song written by somebody else. A feast of legal TRUs are presented by this - a smorgasbord that may or may not have to be addressed with granularity. Many or all uses of Digital Media on the Internet amount to "performances" if someone engages in real-time consumption of the DM. The legal implications of this are normally utterly unknown to the consumer/user.
    4. Nature Legally supported but mostly only used by music publishers when there are significant economic damages at stake - this is sort of a high-stakes kind of TRU. It's also kind of a high-flying TRU in that the international definition of a performance was part of what TRU communicate to the public and TRU technological access restrictions were built (in WIPO treaty negotiations) to avoid. The rule of thumb is that paying off whatever people or groups (reasonably and justifiably) believe they are entitled to a share of revenues makes sense, so as to avoid trouble later.
    5. Benefits Music publishers.
    6. Possible digital support It is debatable how the word "performance" should carry forward into the DMP DM model, although it clearly relates to concerts of another composer/songwriter's work. Perhaps this issue is external to the sort of content exchange channels and transactions DMP will support. On the other hand, ease of licensing the right to perform a composition by someone else is already the sort of commercial use DMP has been envisioning (within the scope of the value chain).
    7. Requirements DMP DRM shall support the straightforward communication of terms and conditions (a knowing, consensual agreement) pertaining to the user's use of digital media content.
    8. References  

    41

    Criteria

    Description

    1. Name TRU of respect for resale royalties terms and conditions
    2. Summary description Part of the trio covering what users and consumers are bound by - in terms, conditions and legal liability - when transactions are made by sale, performance or resale. In this case of resale, actual instances are rare and normally confined to French droit de suite legislation or else transactions of fine art that have dramatically increased in value, to which some countries hold an artist entitled to a small percent of the sales price.
    3. Use records This has been a pretty rare thing in the analogue world, and yet it is a recognized entitlement for certain types of transactions, such as the sale of fine art that has dramatically increased in value.
    4. Nature Not one of the best enforced TRUs partly because it is generally confined to very limited areas and types of transactions. Nonetheless. it has been successfully enforced, and it is important for DMP because so many distribution DMBMs can be modeled based on it.
    5. Benefits Digitally, it can benefit any creator. More traditionally, it benefits famous painters who sold paintings cheap back when they were "starving artists".
    6. Possible digital support Many DMBMs can be based on creators receiving a stipulated "cut" of future exchanges such as resales, lending and even giving (gifts over the DMP DRM platform should be capable of generating revenue for creators).
    7. Requirements DMP DRM shall support the straightforward communication of terms and conditions (a knowing, consensual agreement) pertaining to the user's use of digital media content.
    8. References  

    42

    Criteria

    Description

    1. Name TRU of equitable remuneration
    2. Summary description the right of equitable remuneration is generally invoked during a legislative taking of reproduction/distribution control away from a creator under a compulsory license such that the legislatively set compensation, normally managed by a collecting society, is termed "equitable remuneration" for the value of the work's use
    3. Use records Equitable remuneration can take many forms and should generally be expected to supply funds for some administrative entity executing the form taken. Compulsory licenses might or might not produce revenues to be divided up, but when they do this produces or adds a service to an existing collecting society that manages the division of income across a multiplicity of deserving recipients. The existence of collecting societies can also prevent compulsory licenses from being imposed, since their licensing authority permits the desired public good.

    The strong network of collecting societies first grew into being around TRU to restrict performance. At IC sec. 5.5.2, Goldstein says, "Performances, broadcasts, and similar communications of copyrighted works are intangible and evanescent and are consequently more difficult and costly to monitor and enforce than are tangible uses. This difficulty doubtless explains why collecting societies, with their blanket licenses aimed at overcoming the high transaction costs of negotiated performance licenses, made their first appearance in the context of the performance right." Also, at sec. 5.2.2.3, "From the beginning, the impetus to the formation of collecting societies has been the difficulty of enforcing copyright against such decentralized uses as nondramatic performances of musical compositions. As emerging technologies have introduced newer forms of decentralized use, new collecting societies have formed to enforce copyright against these uses." He continues that "the musical performing rights societies have remained the most numerous and probably the most powerful in their impact on the formation of copyright policy, domestically and internationally."

    4. Nature At section 5.5.I.6 of International Copyright, Paul Goldstein describes equitable remuneration as occupying a middle ground between "exclusive rights and absolute exemptions" and says, "National arrangements for compulsory licensing divide into three groups: mechanical recording of musical woks, 'private' copying such as home audio- and videotaping and reprography, and translation and reproduction of protected works in developing countries." Also, TRU lending and TRU rental are often treated by equitable remuneration schemes; perhaps these do not strictly count as compulsory licenses.

    Perhaps the primary legal example of this is the treatment of phonograms, for which Goldstein says at 5.5.I.6.A, "The structure of the mechanical license may vary from country to country." This relates to national treatment in TRU of reciprocal protection since this multitude of various treatments are what will be applied separately by each country. There is already pressure on collecting societies in Europe to replace this with unified treatment schemes (for digital music Internet licensing), allowing fully reciprocal digital music licenses so any European collecting society could provide collection as a service and Users could choose which provider to select.

    Berne covers national treatments for recorded music under Article 13, and broadcasting or "any communication to the public by wire" under Article IIbis. More important regarding Berne is the three-step test in Article 9(2). This includes moral rights in that authors and performers should not have their names stripped off their creations.

    The systems of equitable remuneration in different countries also have various treatments regarding to whom money is distributed. For example, some countries include foreign authors in disbursements and some do not (at IC sec. 3.2.3.I Goldstein makes a strong argument in favor of always distributing monies to foreign authors who deserve national treatment), similarly some countries distribute money collected to national good causes and some do not (same section, footnote 96). At 5.5.I.6, Goldstein says, "Institutional and technological innovations such as collecting societies and electronic contracting will sometimes obviate compulsory licenses." It is suggested that this is a service DMP can readily support because collecting societies could play a very beneficial role in administering electronic licenses governed by next-generation DRM.

    At http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf p. 30, Sam Ricketson describing Berne Article 13(I) says, "No guidance as to the meaning of the expression 'equitable remuneration' is given. Although it is left to the parties to negotiate this amount between themselves in the first instance, the adoption of such a provision under national law inevitably weakens the bargaining position of the author. For this reason, the role of the competent authority is crucial, as it will have to make a notional judgment as to what amount would have been negotiated in the absence of a compulsory license. This will ultimately remain a matter for national legislation." [emphasis added]

    Per Goldstein IC sec. 3.2.2.3, most collecting societies belong to one of four international organizations:

    5. Benefits Primarily End-User because the purpose of equitable remuneration is usually in support of socially beneficial end-uses. Collecting societies benefit. Authors may benefit, provided money actually gets to them.
    6. Possible digital support Because equitable remuneration schemes can encompass so many worthy social poliies, these could be powerful subsidies for worthy causes, e.g., providing advanced materials to "gifted and talented" kids in school, with royalties paid for in part by the collecting society's accumulated funds.

    The possibility of calculating monies in near real-time could have interesting implications for DMBMs.

    7. Requirements It should be noted that there is a tension between enabling this TRU and DMP's general position against levies on digital media technology.
    8. References  

    43

    Criteria

    Description

    1. Name TRU of reputation
    2. Summary description Rights of reputation include an author's economic rights not to have their work presented in a manner harmful to their future sales, a celebrity's right not to have their physical image misused to create a false appearance of endorsement, and a moral right not to have works subjected to derogatory treatment.
    3. Use records As one might expect from the nature of a person's "reputation" in itself, this is a multifaceted TRU - seemingly innocuous and yet deceptively important. It bears on moral rights primarily through integrity but also through the three-step test of special cases that do no harm to a work's normal exploitation or to the author's reputation, that third step being essentially a moral right and therefore inalienable according to some legal systems notably that of France. As an economic right, reputation is also multifaceted because economic rights tend to be covered by a host of diverse possible claims perhaps the most notable of which are unfair competition, trademark and defamation but the essence of all of them coming down to compensation for economic harm when it occurs. Although economic harm to a creator's reputation might be very hard to quantify because it is gambling to guess a creator's future income, the consequences can be death to sales since a bad reputation can make a person's work anathema to buyers. Finally, reputation has a more narrow use that seems primarily economic in the arena of public figures whose celebrity status subjects them to having to permit certain types of reproductions of their physical appearance - such as magazine snapshots or artistic portraits - but protects them from reproduction of their physical appearance in areas that would be considered product endorsements or merchandising of their image.

    Although this TRU might seem a trickster and a Proteus, and therefore quite hard to pin down, one should expect it to pop up unexpectedly as being very important. Creators want to be regarded well and any use of their work or image that seems to injure this will likely result in cries for protection. As a colorful instance, an important court case decided on a celebrity's "right of publicity" (treated here as essentially synonymous with reputation) involved the talk show host and comedian Johnny Carson who was introduced by the phrase "Here's Johnny." A manufacturer of portable toilets used the slogan "Here's Johnny, the World's Foremost Commodian" [from Paul Goldstein's "Copyright's Highway", Chapter 1], a use that while funny also gives rise to an unpleasant mental association between the comedian and bowel movements.

    4. Nature

    Legally supported in a variety of forms, both moral and economic. See also 59. TRU moral rights, with respect to the nature of moral rights generally.

    Under some national legislations, penalties for harm to moral right of integrity are calculated based on quantifiable damage to reputation (ref. Goldstein, International Copyright, Sec. 5.4.2.2). Reputation can also be protected under defamation laws.

    An interesting British case pertaining to Oscar Wilde's "reputational interests" is described at Id. Sec. 5.4.I.I.ii regarding a ballet based very loosely on the author's short story "The Nightingale and the Rose". Had the defendant not referred to the story and its author in their advertising, the works were sufficiently dissimilar, and founded on folk tale in the public domain, that it would have been difficult to find any infringement. In this sense, an author's right of adaptation can be considered an extension of TRU reputation. The market value placed on reputation seems to attract both "bottom-feeders" and spin-offs of a more acceptable (and hopefully authorised) kind.

    5. Benefits Benefits Right-holders.
    6. Possible digital support The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report).

    Such an approach could provide a number of alternative support systems for data pertinent to a creator's reputation - providing a reputation-cloud so to speak of pertinent authorised data.

    7. Requirements DMP shall support the right of reputation

    Note RQs proposed for TRU integrity

    8. References  

    44

    Criteria

    Description

    1. Name TRU of reasonable modification
    2. Summary description 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 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 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 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.

    45

    Criteria

    Description

    1. Name TRU of first publication/disclosure
    2. Summary description Right for the creator to control the manner in which their work is initially released or divulged to the public, including economic rights as well as a moral right recognised under several legal systems.
    3. Use records As a moral right, this includes divulgation (as in, to divulge or disclose) or publication of that which has not been previously offered to the public. For creators with a very good reputation, working drafts of many kinds have value which third parties could seek to publish whether because of their economic value or just to satisfy popular curiosity. While cases dealing with this often relate to economic factors, it is good to consider this in the abstract respecting privacy or the need of creators to show drafts or sketches to a select group in order to solicit their reactions. As a threshhold issue in moral rights, this line between 'backstage' and 'on-stage' is very important to the creative process.

    Because national systems of copyright protection habitually deal with works that are published at a certain place (or places) and time (or times) and then might qualify for the exclusive legal right in certain countries for certain amounts of time (which can vary for different places), the time and place of first publication/disclosure can be a critical "point of attachment" in order to calculate where and for how long a work will be protected. Within the Berne Union there has been some effort not to let such requirements be unduly difficult or technical, however the 'where' and 'when' still matter. For example, before the United States joined the Berne Union, simultaneous publication in both the U.S. as well as a Berne member nation was required in order to qualify for convention-level protection within Berne nations; publication within 30 days satisfied this requirement of being "simultaneous" and was commonly referred to as the "back door to Berne". Also, under neighboring rights treaties and various other legal fact situations, there can be a multitude of issues regarding which law (or revision of a statute) to apply including which country's legal protection rules to apply, and such questions can be decided based on the time(s) and place(s) of first publication. There are circumstances under which applying a (somewhat timeless and universal) moral right can be refreshingly simple in contrast with determining what laws apply based on first publication.

    4. Nature

    Legally supported in a variety of forms, both moral and economic. See also 59. TRU moral rights, with respect to the nature of moral rights generally.

    The moral right of disclosure is explicitly extended to all authors in France's IP Code Art. I, I2I-2 (link to statute) which states "The author alone shall have the right to divulge his work" and by Germany's Copyright Act Article 12 (link to statute).

    In International Copyright, Goldstein observes that while Berne does not explicitly grant disclosure as a moral right in 6bis, it "partially secures the right" by confining exemptions such as 10 and 10bis to published works (ref. Sec. 5.4.2.3). He also observes that it is "[i]mplicit in the economic rights of reproduction, public performance, and distribution" (same cite) for example 17 U.S.C. Sec. 106(3) (link to statute). He also suggests that the U.S. Sec. 202 provision that transfer of a material object does not convey "rights in the copyrighted work embodied in the object" supports this TRU (link to statute).

    Article 3 of Berne contains several interesting references to TRU first publication (link to treaty language), particularly insofar as first publication in a Union country activates the treaty's protection. Goldstein observes (ref. Sec. 4.I.I.I.B.ii) that Article 3(3) is supportive of this TRU by virtue of what does not qualify as publication, particularly ephemeral and unauthorised copies of a work. It must be noted about 3(3), however, that it requires "the availability of such copies ... as to satisfy the reasonable requirements of the public, having regard to the nature of the work." (The nature of movies was considered an exception back before multiple, individually owned copies were technologically feasible.)

    5. Benefits Benefits Right-holders. Constrains other Right-holders and End-users, particularly restricting informatory news and TRU to quote.
    6. Possible digital support The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report).
    7. Requirements DMP shall support the right of first publication/disclosure

    Note the Heidelberg RQs support most of what's needed for this, except for whatever interface is required to communicate with a moral rights database server.

    8. References  

    46

    Criteria

    Description

    1. Name TRU of parody
    2. Summary description a caricaturish and usually humorous form of criticism involving mocking or imitation often in outlandish style, generally incorporating direct references or reproductions of elements from some other work being mocked
    3. Use records Perhaps parody is best known in politics because of the tendency of political partisans to caricature opposition candidates. Indeed political cartoons were used centuries ago, for example portraying a government minister or foreign ruler in an exaggerated and funny manner. Several rules of thumb distinguish instances of parody from unauthorised adaptations, for instance:
    • Is there something value-added about the presentation, drawing on its own originality and not merely relying on the ideas and expressions of whatever is being parodied?
    • Can the parody be clearly distinguished from the original being depicted or satirised (although technically, "satire" is an independent and less-protected legal category, see U.S. Supreme Court decision below), and is it clear that the parody is in fact a parody or effort at humor?
    • Is the so-called parody actually funny? Is it true to its expected own purposes of heaping ridicule and scorn -- possibly in a good-natured way -- upon the object of its derision and tomfoolery.

    Parody is often resorted to in the absence of more direct means of effective criticism. Its ridiculous or satirical aspect can be a smokescreen to convey a deeper truth or complex concerns. Related to this is a remark made regarding science fiction by John Balcom in his translator's preface to "The City Trilogy" by Chang Hsi-Kuo. After referring to the writers Clarke, Asimov, Dick and Heinlein, Balcom says, "During the McCarthy period and after, writers' expression of radicalism and veiled critiques of contemporary society in the States were largely confined to this genre. Its obvious fictitiousness allowed them to question reality and examine larger truths unimpeded by political considerations."

    4. Nature Parody is more a recognized right than it is legislated. Its closest approximation in legislation is France's Intellectual Property Code Art. L 122.4(4) exempting "parody, pastiche and caricature, observing the rules of the genre." The work being parodied must have already been published. Little other legislation approaches France's specificity.

    At http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf p. 72, Prof. Sam Ricketson observes that there is room for potential tension between this right in France and the EC Information Society Directive 2001/29/EC. He says, "The only exception in Article 5 that may give rise to obvious problems is Article 5(3)(g) use for the purpose of 'caricature, parody or pastiche.' This does not fall within any of the specified exceptions recognized under Berne, although it is conceivable that such an exception could arise under Article 9(2) in relation to reproductions and might likewise be justified as a minor reservation with respect to performing and broadcasting rights. It will be necessary for this to be so, however, for the purposes of both TRIPS and WCT compliance, as both these treaties do not envisage that members can create new exeptions or limitations that fall outside what is allowed by Berne". http://europa.eu.int/information_society/topics/multi/digital_rights/doc/directive_
    copyright_en.pdf

    The problem with 9(2) and fair use generally is we are cast unto the land of the vague. This is aptly summarized in the U.S. Supreme Court decision Campbell v. Acuff-Rose Music 510 U.S. 569 (1994). (online at http://supct.law.cornell.edu/supct/html/92-1292.ZO.html) Justice Souter writes, "We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. ... The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop." In other words, a true parody is not a derivative adaptation, or at least it is authentically more than that.

    Justice Souter draws the line where we may metaphorically picture it as shores of the flowing stream of the original author's economic exploitation, in other words the same as applyng the Berne Article 9(2) standard. Treating parody as a form of aftermarket criticism, unprotectable by the original author, coincides with the traditional exemption for parody from requiring the original author's actual permission.

    In Goldstein's main treatment of parody at International Copyright section 5.5.I.2.A, he quotes Professor André Françon as saying, "the very principle of the theory of parody is that the parodist may indulge in his art without need to obtain authorization from the author of the parodied work. It was feared that, if such authorization had to be obtained, it would be refused by an all too conceited author. Consequently, it seems preferable to state that no authorization was necessary and that there is, in this respect, an exception to the author's monopoly to exploit that work." So in other words, parody is a very powerful social license to do something based on another author's work without permission from the author, but the responsibility that is taken on is to actually create an original, authentic parody in itself.

    5. Benefits This is a free-expression issue benefiting society in general, or an author wanting to create a parody. The person or work being parodied might be harmed but supposedly, this is only allowed in certain narrow ways.
    6. Possible digital support In Souter's decision above, he compares elements of parody with quotation and other criticism. On the other hand, this comparison might be largely philosophical. While one can imagine a parodist providing a commentary, like a Director's comment soundtrack on a DVD, referring lovingly to things they found ridiculous by means of quote, this clearly is not the form parody normally appears in. A parody is normally a seamless and humorous recreation of what is being ridiculed, for example if the subject of fun takes themselves very seriously, a parody might be expected to also take itself very seriously. Perhaps the work as a whole should invoke some sort of quote to the parodied work as a whole. This could be useful. If a famous director is parodying a foreign director and then they are sued by Joe Schmoe Nobody, it might protect the famous director to have documented what it was about the foreign director that they were parodying.

    While the analogue law presents the two markets for exploitation as non-intersecting -- either in the water of the author's stream of rights or else on the shore, excluded as aftermarket criticism -- it is possible digital cross-marketing could occur. For example, if an attractive actress is making a parody of another attractive actress, some men could be expected to like both shows. There must be examples with appeal of a less physical kind, for example a humorous rendition of American history might help a student learn. It could have questions after joking skits such as, was the Norman Conquest really accomplished by a guy named Norman slightly after World War II during a sporting event? Or did Louis XIV really fight a mongol Russian warlord Vissaly in the year 605, naming his gothic palace "Versailles" after Vissaly because his queen couldn't pronounce Vissaly? These are absurd examples, but a significant fraction of the U.S. population can't find the U.S.A. on a map. A set of parody questions could reference a serious American History textbook and be sold as a premium study aid service.

    7. Requirements The User shall be able to declare whether theirs in an original new work and, if applicable, link to an influential precursor that is being referenced. Although originality would initially be implemented as user-declared, such representations could always be challenged and/or confirmed by third-parties.
    8. References  

    47

    Criteria

    Description

    1. Name TRU of factual reporting
    2. Summary description News journalists enjoy a general liberty to state facts in their columns, and news photographers are able to run sufficiently newsworthy pictures without extensive rights clearing and licensing.
    3. Use records Even before U.S. fair use gave special treatment to news journalism in harmony with first amendment principles, European journalists settled on relatively lax standards of copyright enforcement for certain aspects of factual reporting. It is generally perceived that informatory use is so important as to serve a social need that should be facilitated.
    4. Nature At section 5.5.I.2.B of Paul Goldstein's International Copyright, he says, "to bring news of the day or items of press information within copyright control could seriously hamper press operations and injure the public interest in being informed of newsworthy events."

    Prof. Ricketson at http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf provides an extensive treatment (pp. 17-20) of Berne's articles 2(8), 2bis(2), 10bis(1) and 10bis(2). He notes that many news articles do not fall within the current events description, and suggests that compulsory licensing could establish a rate for this, after which violations of TRU paternity (referred to as "attribution") could be handled by fines or some other lesser penalty that "does not make the use itself unlawful."

    Other informatory purposes can permit reporting beyond "current events" but the use should clearly be limited to what is necessary. For example Ricketson, "It will be clear that this does not allow carte blanche for the reproduction of whole works under the guise of reporting current events: this will only be permitted where the nature of the work is such that it would not be possible to make the report without doing so.

    Note that speeches by public figures or public agencies can fall into this category and are also treated by Berne. Another variation of usage is when a copyrighted work is audible or visible in the background of a news event recorded in audio/photo/audiovisual format(s).

    5. Benefits Everybody benefits in the long run, but in the short run this could be harmful to authors or other rightsholders who want to control how information about their activities is released to the public.
    6. Possible digital support Like TRU copying for classroom instruction, this TRU is essentially established by its informatory purpose.

    Potentially could be used with DEU 40 to provide tagging of fact-checked names and spellings that could allow a number of e-commerce options, for example superdistributed inclusion in the news reports of other reporting organizations.

    7. Requirements
    • somewhat liberal permission for use while news is "fresh"
    • tagging of fact-checked facts so descriptions of their verification can be reviewed
    8. References  

    48

    Criteria

    Description

    1. Name TRU to restrict access to unpublished material
    2. Summary description 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 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 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 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

    8. References  

    49

    Criteria

    Description

    1. Name TRU of lending
    2. Summary description the (restrictive) lending right is retained by the author as a form of TRU distribution requiring permission, applying obviously to libraries but also potentially to digital transfer rights; this TRU only applies to some nations
    3. Use records 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).

    It appears TRU lending and TRU rental are both commonly used in order for creators to collect "equitable remuneration" under national compulsory licensing. However it also seems that these are not only used that way. Goldstein says, "Most countries that have adopted a public lending right have structured it as essentially a social welfare system...indeed, in these countries, to call the entitlement a "right" would be a misnomer" (GIC 3.2.3.I).

    While libraries have often been at odds with Right-holders, they are also almost universally admired as treasuries or storehouses of knowledge and ideas. Private media use has been relatively non-governed, which applies to library patron End-users. Libraries inherently give rise to considerations of fair use, and extensive private uses - such as by borrowers - are part of the essential appeal of valuable intellectual property. This tension and its potential to abuse the interests of Right-holders is unlikely to be diminished by the use of digital forms of media, although the essence of what digital libraries can become is not yet known.

    4. Nature TRU lending is treated by the 1992 E.C. Directive 92/100/EEC "on rental right and lending right and on certain rights related to copyright in the field of intellectual property". Note that "lending within the meaning of this Directive does not include making available between establishments which are accessible to the public", which we presume to mean that inter-library loans can hurt sales. Note particularly the recommendation that these rights "not be exercised…in a way which is contrary to the rule of media exploitation chronology as recognized in the Judgment handed down in Societe Cinetheque v. FNCF" (decision online) — first movie theaters then videotapes then broadcast television (comparable but more flexible digital media distribution chronologies could be important for DMBM design).

    Denmark legislated the first public lending right in 1946 (GCH 156). Goldstein says, "Most countries provide no right against library lending of literary works. Of the countries that do prescribe a public lending right, all but one treat it as a neighboring right; Germany, the exception, treats it as an author's right" (GIC 5.4.I). Goldstein questions whether public lending fees should only be distributed to nationals, as the U.K. handles it, rather than authors of many nations. He also points out that TRU lending lacks "the quality of an intellectual property right in the sense that it is a right to control, or at least benefit from, the work's exploitation on some basis that approximates the work's success in the marketplace (GIC 3.2.4.2).

    5. Benefits Right-holder
    6. Possible digital support Since TRU lending is the law in several European countries, DMP should support whether or not libraries will be allowed to lend each individual piece of DM and possibly should support adherence to already established compulsory licensing schemes (perhaps no more is required for this than a list of titles checked out and how often they are checked out). It has been recognized that the related issue of End-User to End-User lending should also be supported by the DMP mapping. From a technical viewpoint, this might amount to little more than "check-in/check-out" privileges in both cases, libraries and EU-to-EU.
    7. Requirements DMP shall support the creator's ability to restrict their DM creations from being circulated by libraries or from End-User to End-User, except that privacy rules establish a boundary beyond which the ability to restrict should be blocked.
    8. References  

    50

    Criteria

    Description

    1. Name TRU of translation
    2. Summary description translation rights are initially retained by the author but over time permit various developing nation uses, fair uses, and potential compulsory licensing and/or equitable remuneration so that published works can be consumed in other languages besides those that have been duly authorised; translators acquire a copyright in their translations but not to the prejudice of prior copyrights in the material that was translated
    3. Use records Like TRU parody, this presents issues of TRU adaptation, in this case because it is possible for translations to be more or less precise. A more precise translation is likely to be lengthier than the original, with more words required to convey nuances of meaning contained in the original, which is usually pithier. The famous "a translator is a traitor" quip suggests that translators must often aim for economy of expression, taking certain liberties with the original to do so. It should be up to the original author what sort of translation to authorise, but it is likely the author does not speak or read the foreign language in question.

    Unauthorised translations put steady pressure on an author to assert control or else lose control. For example, an online group translated one of the Harry Potter volumes into German -- each group member taking on only a few pages -- because of their impatience waiting for the authorised translation to be published. One example recognised by treaty is TRU of developing nations exception , which requires delays and notification of the author, but then allows people to perform their own attempted faithful translations. This clearly enables speakers of the world's more obscure languages to benefit.

    4. Nature In U.S. law, translations are part of the definition of "derivative work" and listed first of many examples of such works (17 USC 101). 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 translation diverges from adaptation and even further away from performance in the assumption the translation will be of a "literary and artistic work" and will itself be one. Translation can fit the main definition in Article 2(I) as a "production in the literary, scientific and artistic domain" or as a book or dramatic work, however translations are specifically provided for in Articles 2(3) and 8.

    • Article 8 provides a right to restrict others from making translations.
    • Article 2(3) protects the author of a translation "without prejudice to the copyright of the original work."
    As with TRU adaptation, this creates some doubt as to the treatment of a translation that has been completed without authorisation by the original author. This doubt is best resolved if the author subsequently consents or else the translation is accomplished (with notice) under the developing nations exception.

    At http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf pp. 37-39, Prof. Sam Ricketson points out that TRU reproduction has many exceptions for which no parallels exist in TRU translation, and that it has been accepted that this is somewhat illogical. On the other hand, TRU of developing nations exception does provide for exceptions overtly applicable to translations. As a result, Berne members live under under a more restrictive scheme allowing authors to ignore foreign languages they don't care for. This is a motive expected to be balanced by greed, since Middle-men publishers will push for authorised translations whenever it is to their economic benefit. In theory, it is only developing countries that need the self-help because economics will take care of providing translations in the wealthier Berne countries.

    In International Copyright, Paul Goldstein says, "the translation right was the first right to be expressly included as a minimum Berne requirement" (at sec. 5.4.I.I.A.ii) and refers to an earlier work by Prof. Ricketson that said translation "was probably the most important factor which drew states into international copyright agreements in the late nineteenth century." (footnote 570)

    5. Benefits Benefits authors by helping their works reach more people, benefits Middle-Men by allowing publishers in other countries to have access to books written in foreign languages, and benefits End-users by providing a wider selection of content. Potentially harms the original author's TRUs of integrity and reputation, especially if the translation is a stinker.
    6. Possible digital support It is noteworthy that the exercise of the developing nations exception for translation requires time delays and circulation restrictions. This could apply to our metaphor of the author's stream of economic exploitation, staying at the shallow outskirts of the stream based on time and audience (e.g., media exploitation chronology of theater-DVD/cable-TV).

    Interlinear publishing could be automated for displaying originals alongside translations (including multiple translations). This would be very desirable for scholarship and also for popular enjoyment.

    7. Requirements none at this time
    8. References  

    51

    Criteria

    Description

    1. Name TRU of regional pricing
    2. Summary description authorisation to determine regional pricing schemes has commonly been delegated by creators and also Middle-Men to regional distributors by contractual agreement, however this long-term practice for physical goods is threatened by digital distribution over the Internet
    3. Use records Regional pricing schemes are extremely common but also potentially fragile. The regional market is the primary contributor to the amount of money that is "all the traffic will bear", and since sellers are most interested in the bottom line of total profits, prices are likely to be carefully adjusted -- down if that leads to a significant increase in sales or up if a higher price can lead to greater revenues. Although a monopoly position or an "exclusive" distribution deal can lead to the ability to charge higher prices, this can also trigger regulation by Public Authorities. If a market is thriving, increased competition is likely on its way, including illegal competition of various kinds such as counterfeits or illegally sourced product (i.e., legitimate goods obtained from regions forbidden by regulation where prices are lower).
    4. Nature Generally this TRU can be considered a specific instance of TRU contractual commerce. Detailed legal specifics are more likely to be restrictions on this TRU rather than grants. It is given separate treatment because it is commonly essential to profitability.
    5. Benefits Authors/Rights-Holders and Middle-Men
    6. Possible digital support Although the key element for this is location-based Rights Expression conditions, it is likely that support for this TRU will be of legislative and regulatory interest. For example, the boundaries of a pricing region could be required to coincide with those of one or several sovereign nations, or there might be restrictions on granularity for certain categories of product so that those living in distinctive neighborhoods are not unduly discriminated against.

    An interesting analogue element of this TRU is the right to seize contraband or counterfeit goods, and an analogous function could be supported in the digital space.

    7. Requirements location-based Rights Expression conditions
    8. References  

    52

    Criteria

    Description

    1. Name TRU of unpublished recording
    2. Summary description This TRU springs from the ability to use recording equipment to capture real events and people regardless of whether one has permission or licenses. A certain amount of leeway is traditional, and social policy has long tried to balance the usefulness of audio/visual/audiovisual capture devices with the vulnerability of copyrighted materials, possible invasions of privacy and any other potential dangers posed by allowing recording equipment to be freely sold and owned. The solution has normally been to either forbid the presence of cameras and recording equipment or else to forbid images or audio recordings being widely circulated or else used for profit (unless written permission is obtained). In other words, as long as newly recorded media remains unpublished, it may be owned and shown to family and friends.
    3. Use records Recording DM in the manner envisaged by this TRU has an analogue-to-digital conversion, and the new recordings normally exist in a cleartext state although DRM for new recordings/photographs is becoming more common.

    Although bootleg concert recordings are illegal, that is usually tied into a contractual prohibition on bringing recording equipment into the venue. But what about a nephew's school musical? What about a phone conversation where the other person doesn't know they are being recorded? As long as recordings are stored and viewed for personal use (inc. family and friends), all kinds of "taping" are commonly accepted. An exception would be recording criminal acts in which creating or owning the recording amounts to a criminal act in itself (for example, child pornography).

    This is a usage and not a right because the recordist has to "get away with it" when not announcing up-front that they are making a recording and receiving agreement(s) to be recorded.

    4. Nature Usage. An artifact of the way things are now based on the fact that publication or distribution of some significant kind is a prerequisite to expensive litigation. The many millions of people who buy audio, video and photographic recording equipment use their purchased devices freely, generally with little concern for invisible barriers such as copyright. Because their recordings are relatively private, they have a high degree of confidence that they will "get away with" what they are doing, based on the reasoning that nobody will say they have a problem with it and nobody will know anyway.
    5. Benefits End-Users
    6. Possible digital support The basic ability to record DM might inherently support what is needed, so it is probably just a matter of not restricting recording devices from being used generally under all circumstances. Although supporting this TRU is not problematic, the subsequent issues of rights to share or publish personally recorded DM are problematic. The key thing here is to preserve the status quo and not restrict whether a recording device can operate. As an example of how this could be interfered with, a broadcast signal at a concert could activate a receiver in the recording device, preventing the device from operating in recording mode while the signal remains present.
    7. Requirements DMP DRM shall support the unimpeded ability of digital media recording devices to perform recording functions.
    8. References  

    53

    Criteria

    Description

    1. Name TRU of developing nations exception
    2. Summary description Developing nations (as defined by treaty) enjoy relatively lax standards of copyright protection to enable socially valuable uses in countries that qualify as relatively underfunded participants in the global economy
    3. Use records It is difficult for non-specialists to be informed on this topic, but in the most general terms, the United States once was a good example. The new republic chose not to participate in international royalty payments, and instituted unique requirements for registration of works and fixation of copyright information.

    More recently, this would seem to apply primarily to what we think of as the third-world, "developing countries" given special treatment by the U.N. So in one sense, differing copyright restrictions between nations is nothing different or special, but it is special in how this highlights the tension of one-sided versus two-way trade practices. It is also special as a good illustration of how structuring terms for TRU translation or TRU reproduction can avoid interfering with the expected normal course of TRU economic exploitation (e.g., media exploitation chronology aspect of years elapsed before types of license are authorised).

    It is also striking that the limited latitude described by treaty is much less than illegally grabbed by maniac copiers claiming "fair use" as they violate it. Also, in many developing countries, mass-produced items such as schoolbooks may more easily reach worthy recipients than in the West, because not everybody has an Internet connection and a desktop computer.

    4. Nature Copyright - internationally - is somewhat like a pact to compete along certain rules. In between Berne-or-better protection and no copyright at all (or only for nationals), there lies a wide range of intermediate values of partial protection. As a usage, TRU developing nations covers aspects of everything, however as a Berne right to lax treatment - the definition is absolutely strict and governed by a dedicated appendix with six articles.

    In International Copyright, Paul Goldstein says, "Economically developing contries must often strike the copyright balance differently than economically developed countries, favoring free use, or at least compulsory licenses, to meet deep-seated educational needs." [5.5.I.6.C] Goldstein at 2.I.2.2 describes the origin of the exception based on demands at the 1967 Stockholm Conference by developing countries prevented from exiting Berne for the more relaxed standards of the Universal Copyright Convention.

    Berne treaty is online at http://www.wipo.int/clea/docs/en/wo/wo001en.htm

    Article I.I of the developing countries appendix contains the basic provision that "Any country regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations" can take advantage of the Appendix's relaxed standards "by a notification deposited with the Director General".

    Article II describes replacing the exclusive right of translation with "a system of non-exclusive and non-transferable licenses" (II.I) for "the purpose of teaching, scholarship or research" (II.5). One year after publication, translations are permitted for languages "not in general use" (II.3) although the more general term is "after the expiration of three years" (II.2.a) if no translation has been published. Translation is also permitted if all editions of an earlier translation are out-of-print (II.II.b). A broadcasting organization may also perform translations "for use in broadcasts intended exclusively for teaching or for the dissemination of the results of specialized technical or scientific research to experts in a particular profession" (II.9.a.ii) including translating incorporated text from materials that were originally published to be "used in connection with systematic instructional activities" (II.9.c).

    Article III describes a similar system replacing the exclusive right of reproduction. The period after which the relaxed copying can be performed varies depending on the class of material. It is generally five years, but is shortened to three years "for works of the natural and physical sciences, including mathematics, and of technology" and is lengthened to seven years "for works of fiction, poetry, drama and music, and for art books" (III.3).

    Article IV requires those seeking to translate or reproduce to attempt to gain permission from the owner of the right (IV.I) and prohibits the export of copies (IV.4.a) except that some sharing with users abroad is permitted "for the purpose of teaching, scholarship or research" if the language is not English, French or Spanish (IV.4.c). The article also provides "In the case of a translation, the original title of the work shall appear in any case on all the said copies" (IV.3) and "Due provision shall be made by national legislation to ensure a correct translation of the work, or an accurate reproduction of the particular edition, as the case may be" (IV.6.b).

    5. Benefits Benefits End-Users and Right-Holders of the future because of its emphasis on assisting the development of literate (and therefore ultimately publishable) arts and sciences.
    6. Possible digital support The general support needs for this TRU have been conceptually "with us" since the Digital Media Manifesto, as the need to accommodate different legislative rules has been clear. The specifics of the Berne appendix offer good instances of the granularity needed for rights management, although again this is in line with DMP's long-held expectations.

    The two more interesting issues for digital support are informatory purposes and the needs of translation. It is at least worth asking how digital technology can provide more robust support or new uses for informatory and translated media.

    As to informatory media and the need for access to support education and research, the simplest solution is to encourage development of Creative Commons-type public domain content provided royalty free. It is in every country's best interests to develop respectable minima for this, although written (and translated?) guidance might need to be provided.

    Translation support could include access to the original language and support for learning it, however this might need to be restricted as far as supporting this TRU since no reproduction license is applied to common language original versions (e.g., English, French or Spanish). On the other hand, the original language could be present as a paid option.

    7. Requirements none needed at this time
    8. References  

    54

    Criteria

    Description

    1. Name TRU of copying for classroom instruction
    2. Summary description Classroom instruction enjoys wide liberties in the use of materials to convey educational information to students (this does not extend to distance learning or the sale of commercial educational products).
    3. Use records Even before U.S. fair use gave special treatment to "nonprofit educational purposes" and "teaching (including multiple copies for classroom use)" (Sec. 107), European legislation permitted many practices that were considered fair to enable classroom instruction to be as productive as possible. It is generally perceived that informatory use is so important as to serve a social need that should be facilitated, and when it comes to teaching the next generation this is especially urgent.

    Consider the format of teacher with blackboard and students taking notes. For scribes, it is certainly a copy factory of some kind. Can the teacher improvise to create classroom displays or pass out handouts? Yes. A humorist might ask however if students are allowed to leave the classroom with these handouts in their possession.

    4. Nature The key provision in Berne's 1971 Paris text is 10(2): "It shall also be a matter of legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice."

    This should be considered to apply to conventional classroom instruction only. On pp. 14-15 of http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf, Ricketson expands on Berne Article 10(2) quoting the 1967 Stockholm Conference Committee's Report: "The wish was expressed that it should be made clear in this Report that the word 'teaching' was to include teaching at all levels-in educational institutions and universities, municipal and State schools, and private schools. Education outside these institutions, for instance general teaching available to the general public but not included in the above categories, should be excluded." And goes on to say, "This is a restrictive interpretation, [34] as it clearly excludes the utilization of works in adult education courses, ..." Footnote [34] reads "Note that in Main Committee I some delegates thought that this was too limiting: ibid, 886 (Mr. Reimer, FRG)." and ibid refers to the "Records" of the 1967 Committee I. In Paul Goldstein's International Copyright, section 5.5.I.2.C Footnote 887 quotes the WIPO Guide to the Berne Convention that: "From this, one can deduce that mere scientific research is not within the scope of the paragraph." (Paris Act, 1971) 60 (1978)

    Section 5.5.I.2.C elaborates types of materials that can be reproduced according to book and periodical guidelenes as including "single copies for the teacher's scholarly research or use in teaching or preparation to teach a class" but excluding "copying to create, to replace, or to substitute for anthologies, compilations or collective works and also prohibit copying from 'consumables' such as workbooks, exercises, standardized tests, and test booklets and answer sheets." Multiple copies that "meet specified tests of brevity, spontaniety, and cumulative effect" may be made so long as the number of copies is not more than the number of students.

    It is noteworthy that while classroom display of audio or audiovisual material including films and music is most likely liberally permitted, duplication of take-home copies of music or video is not covered by that permission. This is an opportunity that commerce could correct on a very affordable, student-version basis.

    5. Benefits Benefits society at the species level. Can benefit governments and corporations selling instructional material. Benefits those End-Users who are students participating in classroom learning activities.
    6. Possible digital support The classroom is a natural location for physical-reproduction peripherals to accompany an IED because so many sales to students could be conveniently and cheaply negotiated and licensed. It also is a place where premium materials could be sold for one-time display only, for example like an affordable video jukebox.

    It is noteworthy that (articles 35 and 36) Japan's Copyright Act "provides more broadly worded exemptions for schools and other educational institutions." (5.5.I.2.C) This could suggest exciting business opportunities.

    Goldstein's section 5.5.1.5 cites German's Copyright Act article 46 as permitting school and religious anthologies, which also suggest content possibilities for distribution (for example on the basis of a small, optional fee or possibly a compulsory license).

    As for personal notes that a student would take in class, handwritten notes have traditionally been exempt, see for example section 5.5.I.I.A especially Italy's Copyright Act 68(I). This suggests copies of digital media that dead-end in the IED might be able to be treated more liberally than copies conferring 'permanent' private enjoyment to the 'owner'/buyer of a fixated copy. There are also many scholarly uses, at times related to scientific research, that are variously permitted and could be licensed.

    Like TRU factual reporting, this TRU is essentially established by its informatory purpose.

    Taken together, these are suggestive of mall classrooms that could be rented by the general public to receive copyright protected and secure multimedia materials, including news and research. Student work authored in such a setting could potentially be published from there.

    Could use DEU 40 to provide unique series of quotes in a multimedia slideshow providing a curated research tour of digital resources available for in-class study, such as a "Write a paragraph about..." assignment.

    7. Requirements
    • licensing for in-class use
    • national guidelines for permitted in-class uses
    • governance for in-class physical reproduction devices and vending
    8. References  

    55

    Criteria

    Description

    1. Name TRU to access content in libraries
    2. Summary description The ability to access content in libraries when it is available.
    3. Use records Since the advent of libraries for people, Users have been able to access contents that are not checked out.
    4. Nature With the user-registration to the library, in a checking-out situation, Users have to choose between sometimes 1000s of offerings and select an appropriate numbers they want to check out at any one time, if they are not checked out by others.

    Also, Libraries shouldn’t affect existing content distribution businesses by keeping moderate archiving and copy-control.

    5. Benefits
    • Users can access what they would like to view.
    • Competition for a given time slot will impact on a given offerings chance for success as more people would like to access what are popular at that time slot.
    6. Possible digital support A large storage device or service and copy-controlled check-out and check-in mechanism for the library contents.
    7. Requirements The ability to check-out and check-in digital media for fair & legal consumption with a copy-controlled manner.
    8. References  

    56

    Criteria

    Description

    1. Name TRU of authenticity of content guaranteed
    2. Summary description The longer and the more populated by unknown middlemen is the value-chain between the creator and the end-user and the less means the end-user has to know that the particular piece of content is indeed authentical.
    3. Use records A mainstream publisher can be relied on as provider of authentic content. Some public broadcasters can be relied on as providers of authentic interviews, but in other cases a commercial broadcaster can be relied more on.
    4. Nature Customary TRU that is provided as an implicit value added to the provision of content
    5. Benefits Creators and end-users
    6. Possible digital support There are many possible ways. A watermark in the content can carry and ID that an end-user can use to check for autheticity with a registration authority.
    7. Requirements DMP IDP/IED shall support the means for a user to verify the authenticity of content that is being transacted
    8. References  

    57

    Criteria

    Description

    1. Name TRU to choose the service
    2. Summary description To use services independently of the service provider [1]
    3. Use records Throughout history people could (more or less) choose the services they use, for example:
    • News:
      In a free society, users (news consumers) can choose from different news sources:  
      • Newspaper (national, international)
      • Radio station
      • Television programme
      • Internet Newgroups

      "News programmes should offer viewers and listeners an intelligent and informed account of issues that enables them to form their own views" [2].
      This principle implies that users (news creators) shall be impartial and independent of:

      • Political activities
      • Commercial business and financial interest
      • Personal benefits
      • Technological barriers
    • Communication:
      Before the deregulation of the communication industry, telcos had monopolies on the telephony service. They owned the phones and networks and controlled the underlying technology [3].
      Some results of deregulation:  
      • to choose mobile phone provider by exchanging SIM card or by "roaming"
      • to keep a phone number when changing to another phone service provider
      • to use other services (e.g. e-mail, internet) on phones
      • to buy end-user devices on the free market
    • Entertainment:
      Cable television providers bundle devices and services (e.g. digital television set-top boxes with pay-tv encryption).
      Some results of these dependencies:  
      • Electronic programme guides controlled by the cable television providers (walled garden scenarios)
      • Set-Top boxes controlled by the cable television providers (creation of user profiles, data mining, ad insertion)
      • Television stations have limited access to the "cable networks"
      • Technological barriers for television broadcasters (cable television providers control of subscriber management system and content encryption)
    4. Nature Both customary and legally supported (competition law, media law).
    5. Benefits The benefit for users is obvious: the ability to choose from a range of services is a pre-condition for the free flow of information, freedom of choice for consumers, media pluralism and cultural diversity. The user's independence of the technology for content distribution accounts for competition and economical growth of the media industry.
    The freedom to choose the service would likely also have benefits to Right-holders and Middlemen offering content for financial gain or the accomplishment of worthy projects.
    6. Possible digital support
    • open application programming interface in accordance with the minimum requirements of the relevant standards or specifications
    7. Requirements
    • The user shall be able to use a single device for services offered by different service providers
    • The user shall be able to transfer security relevant information (e.g. cryptographic keys needed for user identification, the usage of applications and services) from one device to another (also in case of a defective device)
    • The user shall be able to transfer acquired application software from one device to another
    • The user shall be able to transfer data which are not governed by restrictive copyright protections to a system that does not implement DRM functionality
    • specifications shall not create market entry barriers for service providers or industry sectors
    • specifications shall be independent of the requirements of a particular hardware or software and shall not be used to exclude certain platforms or solutions.
    • DRM solutions shall be system-open so that the effort for implementation on different hardware platforms is comparable
    • The patent policy shall not be used to exclude competitors (e.g. by unreasonable license fees).
    • The patent policy should find arrangements for Open Source projects (e.g. exemption from patent license fees for non commercial Open Source projects)
    8. References [1] - Definition of terms for DMP specifications
    [2] - BBC Producers' Guidelines - Values, standards and principles
    [3] - Riding the Media Bits - Telecom Bits and Computer Bits

    58

    Criteria

    Description

    1. Name TRU to choose the delivery system
    2. Summary description To use services independently of the connectivity provider
    3. Use records Throughout history people could (more or less) choose the delivery systems (e.g. networks) they use for services, for example:
    • Television and radio broadcast:
      • Terrestrial network
      • Satellite network
      • Broadband cable network
    • Voice communication:
      • Meeting room
      • Intercom
      • Ham radio
      • Fixed line phone network
      • Mobile phone network
    4. Nature Both customary and legally supported (regulation, competition).
    5. Benefits The benefit for users is obvious: the ability to choose from a range of delivery systems is a pre-condition for the free flow of information, freedom of choice for consumers, media pluralism and cultural diversity. The user's independence of the technology for connectivity accounts for competition and economical growth of the media industry.
    The freedom to choose the delivery system would likely also have benefits to Right-holders and Middlemen offering content for financial gain or the accomplishment of worthy projects.
    6. Possible digital support
    • open standards and specifications for delivery systems
    7. Requirements
    • Content agnostic delivery systems [1]
    • Common carrier obligations
    8. References [1] - DMM P3 - Deployment of broadband access

    59

    Criteria

    Description

    1. Name TRU of moral rights
    2. Summary description A collection of rights distinguished from authors' economic rights under several legal systems, pertaining to the fundamental relationship between a creator and the literary and artistic works they have created, primarily including the rights of paternity and integrity.
    3. Use records For this discussion, moral rights will be somewhat broadly considered to include the following TRUs:
    TRU to be recognized as the author (paternity)
    TRU of attribution
    TRU not to be miscredited as the author (misattribution)
    TRU for the author's work not to be tampered with (integrity)
    TRU of reputation
    TRU of first publication/disclosure
    TRU of withdrawal/objection
    Moral rights are generally considered to be strictly stated statutes legislated in civil law countries, and so this is contrasted with the common law traditions of the United Kingdom and the United States. Even in common law traditions, however, moral rights assert themselves as part of what is called "natural law" or a sense of what justice demands. Also, Paul Goldstein in particular as well as a number of copyright scholars assert that local economic rights often produce the same effects as those which seem to be intended by moral rights statutes, and that in turn the civil law judiciaries may resort to using moral rights in order to resolve conlicts that only arise because of economic considerations or conflicts. Discussions of moral rights often include reference to Immanuel Kant's proposition that writings embody the personality of the author, and it is also important to note the French tradition's strong insistence on moral rights, which predates the Berne convention efforts of the late 19th century.

    To illustrate how the above list of TRUs interoperate, this discussion will resort to the well-worn metaphor of the fruit tree - in this case, an anthropomorphised tree that insists its fruit be freshly plucked from the branch. So to metaphorically treat the TRUs in the order above:

    • TRU to be recognized as the author (paternity) - Although the fruit tree wants its fruit to be eaten, it expects credit and good regard for having been the tree that produces this fruit.
    • TRU for the author's work not to be tampered with (integrity) - The tree has certain standards for its fruit and will not tolerate unpleasant interference with its taste - for example the insertion of chives - especially when someone consuming the fruit might blame the tree for a bad taste.
    • TRU of attribution - If the fruit is eaten, the tree gets credit.
    • TRU not to be miscredited as the author (misattribution) - The tree rejects having other trees' fruits attached to its branches.
    • TRU of reputation - The tree cares that fruit-eaters maintain a good or at least an accurate opinion about it as being a certain kind of tree, so that its fruit will be valued and potential future consumers develop a confident sense of what to expect.
    • TRU of first publication/disclosure - Fruit is not to be eaten until it is ripe, and the color green is a warning to keep your hands to yourself.
    • TRU of withdrawal/objection - The tree can reject a fruit as unworthy by letting it drop to the ground where it will rot away.
    Although the preceding is unduly colorful, it is provided here for the sake of comprehension. Less juvenile descriptions of these TRUs are available at their respective templates.
    4. Nature

    [Disclaimer: The following as well as the treatment of the TRUs above is written by an American relying on an American book, Paul Goldstein's International Copyright — Principles, Law and Practice. The result is a lack of real-world detail and a detached perspective as to how these TRUs matter and function.]

    Inalienable TRUs exist. France (and, less so, Germany) imposes this abstract system on the world, called droits moral (note 1928 Berne 11bis usage). French history has many examples showing the importance of ideals of creative expression, for example TRU to print was a feature of revolutionary thought and France vigorously supports its regional creative culture. As with other French systems of categories that have flourished from the Enlightenment to Post-Modernism, the moral right(s) of creators insists certain universal categories be defined.

    There is also a French court case making moral right(s) available to any creator in the world, no matter what their country and regardless of treaty. Goldstein describes a notable law case (Sec. 3.3.2.2.C) decided in 1991 by France's Court of Cassation interpreting the French code's wording - "inalienable" - as providing authors from foreign countries with unrestricted access to France's courts to assert these rights, at least inside France. [For DMP it should be pointed out that this makes droit moral mandatory for technical support, because there will always be liability to legal claims brought in France.]

    Goldstein says the U.S. "has steadfastly resisted the literal incorporation into national law of the rights secured by Article 6bis" of Berne (link to treaty language) and the U.S. excluded moral rights from TRIPS (Id. Sec. 5.4.2, also ref. Sec. 2.3.2.I). However, Trademark and other requirements - such as 15 U.S.C. 1125 prohibiting "False designations of origin, false description..." - are "potentially perpetual" (Id. Sec. 5.3.I.I.A). A perpetual economic right is at least as sound as an inalienable moral right, provided judicial enforcement is available for both. The one place where the U.S. has embraced Paternity & Integrity applies to visual artists releasing no more than 200 copies of an artwork. It should also be noted that WIPO Performances and Phonograms Treaty Article 5(I) extends Paternity and Integrity to performers for their "live aural performances or performances fixed in phonograms."

    In oversimplified popular thinking:

    • by French statute, moral rights are part of a 'dualist' separation of universal rights from alienable economic rights
    • moral rights in Germany are embodied in a 'monist' unity of inalienable rights both moral and economic (as opposed to whatever other rights of an author or creator are alienable)
    • moral rights don't exist in U.S. or British common law (with narrow exceptions)
    Goldstein suggests the apparently different structures of ideas in these traditions don't add up as very different in the end. He describes a wide variety of state and federal remedies available in the U.S. (Id. Sec. 4.2.3) as well as circumstances under which moral rights may be limited or considered waived (Id. Sec. 5.4.2.5). He says, "Although it is commonly thought that the civil law countries are sternly paternalistic in these matters while the common law countries widely endorse the opposing principle of freedom of contract, the substantive differences between the two traditions are, as a practical matter, small and sometimes nonexistent." (Id. Sec. 5.2.2.I)

    Enormous conundrums are potentially posed by collective works, especially since the U.S. often vests copyright ownership in an economic entity whereas French civil law favors flesh-and-blood authors (Id. Sec. 3.3.2.I.A, esp. discussion of Kerever, and Sec. 4.2). Goldstein's discussion of whose job on a movie should count as "co-author" shows the amusing variety of copyright ownership schemes internationally (Id. Sec. 5.2.I.5.A and Sec. 5.2.2).

    At Sec. 2.I.2.I.A, Goldstein reviews a bit of early Berne history, showing the difference between French universalist thinking and a distinct approach favored by the German Publishers' Association, the Boersenverein der deutschen Buchändler. This resulted in Berne as we now know it and even the well-known phrase "literary and artistic works" was a Swiss compromise, as the early convention sought to avoid "theoretical controversies related to the nature of author's rights."

    5. Benefits Benefit Right-holders. Constrain the permissible behavior of Middle-men and others who might want to claim credit.
    6. Possible digital support The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report). In contrast to the simplistic mathematics of serving this information is the unbearably variable nature of art, artists and what could somewhat facetiously be described as "their world".

    Perhaps the information in authors and artists' heads will always seem unstable compared to the pristine simplicity of maintaining moral rights databases. On a purely human B2B level, some sort of artistic representation by third-party manager/promoter types is likely to be inevitable and recommended, as in many reported cases of artists being unusually inclined to unpredictable behavior.

    Pertaining to the issue of databases, two rules documents produced by the U.S. Copyright Office on March 11 provide interesting insights. http://www.copyright.gov/fedreg/2004/69fr11515.html was produced to address the recordkeeping struggles of webcasters, who would benefit greatly if queueing up audio playlists automatically generated needed databases with the legally required fields already filled out. http://www.copyright.gov/fedreg/2004/69fr11566.html comments on the absence of a copyright ownership database at the Office and says, "the creation of an all-inclusive database is a laudable goal". In related testimony that day before a U.S. House of Representatives subcommittee (http://www.house.gov/judiciary/courts.htm), the Register of Copyrights referred repeatedly to the advantages (in this case referring to blanket licensing) of developing internationally compatible practices.

    Pertaining to the separate issue of trademark, considered in combination with TRU quote, it is urgently suggested that some sort of digital trademark be specified such that interactivity by an End-user with it can result in trusted content between the true owner of that mark and the End-user, note connection with TRU authenticity of content guarantee.

    7. Requirements
    • DMP shall support moral rights
    • DMP shall support a system adjusting declarations of who owns a work's copyright to national schemes that differ.
    • DMP shall support the distinction between a creator's alienable TRUs and their inalienable TRUs.
    • DMP shall support the specification of data for digital trademarks such as can be connected to trusted ecommerce controlled by the owner of that mark, including an interface with the moral rights database.
    8. References  

    60

    Criteria

    Description

    1. Name TRU of rental
    2. Summary description the (restrictive) rental right is retained by the author as a form of TRU distribution requiring permission, applying to commercial transactions; usually carried out including stated and implied licenses with the end-user; this TRU only applies to some nations
    3. Use records 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).

    It appears TRU lending and TRU rental are both commonly used in order for creators to collect "equitable remuneration" under national compulsory licensing. However it also seems that these are not only used that way.

    Rental suggests a collection that is distinctly individual as opposed to public, so that one imagines a business or a less formal nominal fee respecting fixed media that will be removed from the premises for a limited amount of time or else removed from the distribution area for consumption elsewhere on the premises, for example in a cubicle.

    4. Nature Examples of treaty references to TRU rental include WIPO Copyright Treaty Article 7 applied to computer programs, movies and audio recordings (GIC 2.I.2.3), and WIPO Performances and Phonograms Treaty (for audio, not applicable to literary and artistic works) Articles 9 and 13 (GIC 2.2.3). TRU rental is also treated by the 1992 E.C. Directive 92/100/EEC "on rental right and lending right and on certain rights related to copyright in the field of intellectual property". Note particularly the Directive's recommendation that these rights "not be exercised…in a way which is contrary to the rule of media exploitation chronology as recognized in the Judgment handed down in Societe Cinetheque v. FNCF" (decision online) — first movie theaters then videotapes then broadcast television (comparable but more flexible digital media distribution chronologies could be important for DMBM design).
    5. Benefits Right-holder
    6. Possible digital support Rental support more or less presumes support for various contracts and licensing, but specifically may demand definition of a spectrum or menu of rental options. For example, an author might consider whether to choose to release his rental rights along several conventional channels, or else independently through personal means, choosing to make these rental-format selections either exclusive or non-exclusive, or for different durations of time, or only for selected regional areas.

    Ecommerce rental support has been partially solved by many Web-based DMBMs.

    7. Requirements DMP shall support the right of rental.
    8. References  

    61

    Criteria

    Description

    1. Name TRU of communication to the public
    2. Summary description 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 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 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 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 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  

    62

    Criteria

    Description

    1. Name TRU to technological access restrictions
    2. Summary description granted under WCT/WPPT (WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty) giving authors regional protection against tampering devices or software that are designed to defeat content security technology, also prohibits tampering with rights management information, related to TRU communication to the public and TRU reproduction
    3. Use records 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).

    Technological access restrictions and encryption characterized the distribution of proprietary software in the 1990's. By the end of the decade, related considerations of "circumvention" and rights management metadata had worked their way into two WIPO treaties treating the digital realm (see next section below for detail). Because people will adopt security when they think they need it, widespread efforts to implement technological measures existed and the WIPO approach did not need to legalize them but rather criminalized efforts to systematically defeat them, for example for commercial gain. So formally, this is not so much a right as a usage, although it does come with the distinct right to have law enforcement agencies enforce the ban against circumvention businesses.

    Note that implicit in this is the chance or risk that fair use could be obliterated. It has long been recognised that electronic commerce could allow contracts to be individually negotiated for everything, thus removing the niches fair use has traditionally occupied.

    The DMP workplan expects to help make the "access" model more granular, flexible, extensible and adaptive to the real world of End-Users. This will digitally enable a greatly expanded set of meanings for the word "access".

    4. Nature Examples of treaty references to TRU technological access restrictions include WIPO Copyright Treaty Articles 11 and 12 (GIC 2.I.2.3), and WIPO Performances and Phonograms Treaty (for audio, not applicable to literary and artistic works) Articles 18 and 19 (GIC 2.2.3). Goldstein describes it, "The two treaties also aim to buttress copyright owners efforts at self-help through technical measures, such as encryption, to protect their works from infringement." (GIC 5.6 and see 5.4.I.3)

    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.

    Goldstein also sums up the historical long view, "Well into the twentieth century, private copying rarely entailed more than hand copying by a researcher of a passage from a text or copying by a teacher of materials into a lesson book—activities that easily came within the exceptions to the reproduction right permitted by Article 9(2) of the Berne Convention. But by the latter part of the century, with the massive proliferation of photocopies, audiotapes, and videotapes, nominally private activities began seriously to undermine the economic interests of copyright owners." (GIC 5.5.I.6.B)

    Those unfamiliar with the rich U.S. protest literature against the DMCA might start with the opinions of the Home Recording Rights Coalition (HRRC's DMCA legislative history). Also Lawrence Lessig and EFF.org have been conspicuous.

    Goldstein provides an interesting account of how reproduction industries made inroads against TRU reproduction, gaining broad scope of copying because the content industry waited too long to become active, summing this up as a case of "rights delayed are usually rights denied" (GCH Chapter 7, 189). He provides an especially 'touching' quote from Arthur Greenbaum who was part of a major photocopying case decided against the publisher of a medical journal: "here you had cases that were brought too late, and the industries had been created based on doing things in a certain way. And for the Supreme Court to say, 'Well, that's copyright infringement,' would have wiped out the industry." (GCH Chapter 3, 101)

    5. Benefits Right-holder
    6. Possible digital support Granularity, flexibility and extensibility should be the watchwords of strong DRM systems restricting access, in order to take advantage of human, social and economic opportunities as soon as possible after they open up. Although the workplan encompasses what is required for the next several years, an ongoing effort is no doubt required to support the watchwords through the generations. This should be done keeping in mind that because of the restrictive nature of strong DRM, the technological support for sophisticated access rules is compellingly vital in order to enable social electronic transactions and interactions to take place. The potential wealth engine for this could be shaped to benefit the cultural, non-profit component, and of course real people will be raising kids in this DM culture, providing the artists, authors and creators of tomorrow. A continued effort at standardisation is likely to be essential.

    It is worth noting Martin Springer's helpful reference to the definition of "Access Control" as "Ensuring that users access only those resources and services that they are entitled to access and that qualified users are not denied access to services that they legitimately expect to receive". In my opinion, this use of the word "access" clearly has value for Computer Security definitions, but I believe the word is used much more broadly within the international norms supporting TRU technological access restrictions.

    It is worth asking whether work presently being done with fingerprinting content and the use of filtering on file-sharing networks might have some relevance, at least insofar as a "card catalogue" of DM options available might readily provide a degree of support for this approach.

    A nice summary of the task of digital support is provided by the following conference statement from the lead-up to the WCT, "these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment" (R 62).

    7. Requirements Ref. "Access" section in Review of GA01 RQs
    8. References  

    63

    Criteria

    Description

    1. Name TRU to distribute lower-res copies only
    2. Summary description a primitive usage of the audio and audiovisual analogue industries in which master audio recordings, or film or video masters exist in a higher analogue resolution, or even higher digital resolution, with greater quality of 'signal' than copies released to the public; significant mainly as having affected the analogue past of TRU reproduction thus conditioning economic aspects within which Middle-men tried to "game" the system
    3. Use records The nature of resolution in the analogue world asks a question that would have been posed differently back during the time analogue differences were more common. In addition to the use of masters for analogue audio & audiovideo/film duplication, other art and entertainment experiences are suggestive of resolution issues, for example how "good" one's seats are in the audience of a live performance. But back in the days when poor quality was normal for recorded media, and decay-of-quality was always a pressing issue, many scalable realities conditioned how Right-holders and Middle-men conducted their everyday affairs.

    Now that scalable media has been long experienced, for example MPEG-4, or at least long imagined, in many ways it is past time to make more use of it. RH and MM certainly did make the most of resolution advantages/disadvantages and abused the equation at times to receive revenue (or to protect established revenue streams). These individuals were doing business according to the rules of the game the way it was played in those earlier times. Our digital perspective is so distant from these earlier conditions as to possibly give rise to a distorted view of the analogue past.

    Picture the various positions of a theatrical performance:

    • creator — POV on stage looking out at the audience
    • viewer(s) — comprehensive category for those facing the stage, however they are packed into formation(s)
    • backstage — support roles from the wings produce unusual production-oriented POVs
    • good seats, center front — high resolution, sense of physical intimacy with the people on stage
    • front wings — extremely slanted view of the stage
    • middle-to-back center — a good view as far as centered orientation however a distinctively lower resolution view than in the front row
    • middle-to-back wings — a sense of being away-from-it-all but nonetheless a good albeit slanted view
    • standing room only — the picture may be hard-to-see but the sound is excellent
    • front balcony center — good but vertiginous view
    • other balcony seats — parked in the nose-bleed section
    • theater staff walking around — really different experience, the converse of backstage, involving good audio reception but spastically irregular periods in which the stage is visible
    These rich differences are just one well-established example of what we now see as resolution, size and rendering issues. But clearly the ancient Greeks were not thinking digitally as we do now when considering their amphitheaters. In olden days people thought of "quality" and associated it with properties of being "original", "authorised", a "master", or at least "professional" — or even that on-point phrase for high-quality, "front-row seats".

    To a degree, the whole structure of copyright law was built on analogue reproduction issues having to do with how difficult it was to make "good" copies as well as many other issues that do not apply to digital. However the quality of scalability has great possibilities for DM and could even be used advantageously by DMP since scalable support of content, with alternative media formats, is good for enabling a variety of DMBMs including licensed quotations.

    4. Nature A strangely trivial and obvious Right-holder TRU, worth stating explicitly, or else it could be overlooked because of its obviousness.
    5. Benefits Right-holder
    6. Possible digital support It is somewhat obvious that scales, digital-sizes and resolution of Digital Media may be presented in the alternative, both for aesthetic and delivery-technology criteria. The granularity of this should be made configurable although one can imagine a delay for new formats to receive broad technical support unless they choose to provide it online themselves (for example, as freely downloadable plug-ins for major media players or other software applications).

    Also, customised scales and resolutions could be part of the different ways quotes were supported based on users' different privileges with the underlying copyrighted material. For example in a multimedia Hitchcock or Elvis library, different links could display differently and link differently depending on whether someone visiting was a member of the general public, a subscriber, a paid user, a sometime-customer, etc. To state the obvious, a first-time visitor might not be able to immediately screen "North By Northwest" without registering and paying, but subscribers (including at different levels - cheap/expensive) can see links in higher resolutions.

    This would be natural for a multimedia film library. For example, these different resolutions:

    • General Public — minimal support based on TRU quote-support, but content-owners can choose to allow medium-res imags to be broadly distributed
    • Subscriber Cheap — A feast of medium-res images of everything.
    • Subscriber expensive — Some DVD-quality material available for "relatively high-res" viewing.
    • Better than DVD quality — The availability of this will always be able to command a financial premium, and broadband distribution is often effective, including potentially P2P.
    Inherent to the digital support, getting creative and visual artists involved in how this is done is essential to presenting an appealing graphical user interface.
    7. Requirements DMP shall support media consumption in multiple resolutions including quotation support such that linked sources can be consumed in higher resolution based on DMBMs and personal permissions for the referenced source content.
    8. References  

    64

    Criteria

    Description

    1. Name TRU to compel real-time only consumption
    2. Summary description primitive analogue ability to perform written or composed creations in real-time only at a performance venue; significant mainly as having affected the analogue past of TRU reproduction thus conditioning economic aspects within which Middle-men tried to "game" the system
    3. Use records As with TRU to distribute lower-res copies only, this TRU is born out of the analogue past in a way that is important to declare because it is so fundamental (as in, fundamentally obvious). If there is a live performance and you are not in your seat watching it, then to a degree you have missed it. The creators exercise a large amount of control over what a member of the audience can or should do, with the "OK, we did it but you missed it" risk always implied.

    Picture for example the owner of a fabulous mansion who is having a party but is stuck doing something in the library. Beyond the window, some wonderful performance is occurring on the lawn outside that can be clearly heard and where friends are having fun. This removed listener is also the one who will be paying for the performance, as part of a lavish party in progress. Meanwhile, the mansion-owner is embroiled in some task requiring presence in the library. On the walls are either books only or, according to taste, DVDs and an audio archive as well. One can only imagine that it would be longer than a lifetime to try to consume everything in the mansion-owner's fine library. Nonetheless, the party-giver will soon exit this place of tomes for the fun outside.

    What is wrong with that example? Could it be that the rich person is able to enjoy a lifestyle that is not glued to a chair because of this wealth, so walking around and being surrounded by beautiful and wonderful things is a part of this figure's life? Then what about the DMP user? Like it or not, long periods of passive sitting are implied by media consumption in this day and age, for example watching a film at a theater or sitting at a computer or in a meeting. So the main thing wrong with the example is that the user is not almost completely sedentary.

    Note that in the example, some of the party-thrower's friends are in fact completely sedentary enjoying the performance outside. Note also that the library in the example by definition has more stuff in it than can be used in a lifetime of real time consumption, so having it means something more along the lines of having the right piece of media available at the right time so that it can be consumed with greatest enjoyment.

    This principle of greatest enjoyment has characterised public performance spaces for centuries, characteristically for orchestral performances, opera and ballet. Many of these spaces also have remarkable art and interiors. Arguably the neighborhood cineplex has notable interiors - reflecting the highest commonly used "quality" of media consumption. The walls of most movie theaters are "plastered" with colorful notices of upcoming productions featuring some distinctive art that "brands" the media title. This rich sort of experience goes beyond what can be experienced at home, except by the rich, and so has been part of "public" life for centuries (and millennia).

    Based on these preconditions, titles appearing in the normal course of the presentation space's availability are "published" or "made available to the public" (the predecessor language to TRU communication to the public before it took on its 1996 WCT/WPPT meaning). Also, those who attend such public presentations do so not only because of the art, interiors, and media consumption experience, but also because the collective act of absorbing the performance's content is enhanced and the attention is focused by the sense of humanity's surrounding group.

    We can safely assume that some sort of public performance in a public performance space will remain a compelling part of people's lives for generations to come, and to a degree this is naturally characteristic of the word "performance". There is included in this - this putatively valuable performance - a supposition that the TRU performance's Right-holder can compel real-time consumption.

    4. Nature A strangely trivial and obvious Right-holder TRU, worth stating explicitly, or else it could be overlooked because of its obviousness.
    5. Benefits Right-holder
    6. Possible digital support The financial potential of identifying real-time usage is huge, immediately triggering issues of privacy and TRU of respect for performance royalties terms and conditions.

    For example, one can expect that a live webcast is just such an event, and this could be considered to already have an established pricing model through different aggregators like AOL, MSN, Real and B2B syndication packager Middle-Men.

    Real-time usge while it occurs can be valuable to advertisers, which triggers privacy implications. But users could select to cede aspects of their privacy in order to participate in valuable promotions, as is now commonly done, and then receive advertisements or promotional messages at some time as they go about other things, like watching or listening to DM.

    For TRU quote support, it could be very valuable to be able to objectively distinguish whether or not an End-User has already consumed an item of digital media in real time. Take videogames for example. I played the first three 3 versions of Sonic the Hedgehog extensively on Sega Genesis. This could potentially allow me to participate in a community of players who could illusrate levels of the game in their quotations to each other about the game. There could be financial opportunities to support TRU adaptation in such a model, so derivative creations could be published in this community as a DMBM. But the ability to support this requires being able to

    There is related and interesting potential for digital support to block suspicious End-user behavior by allowing Right-holders to configure mathematical limits on how much of certain transactions a person is allowed to do. For example, personal use of digital media occurs in real-time and this means an individual cannot claim to be personally viewing more than ten thousand hours a day of videos. Such boundaries need to be feasibly supported for configuration within DMBMs.

    7. Requirements DMP shall support the ability of the End-User to allow information to be made available to others as to what DM they are consuming in real time, and what DM has been consumed in real time in the past.
    8. References  

    65

    Criteria

    Description

    1. Name TRU to restrict place of use
    2. Summary description Creator's right to specify place restrictions on where their creations are to be consumed, for example a restriction could apply authorising only built-to-spec kiosks; significant mainly as having affected the analogue past of TRU reproduction thus conditioning economic aspects within which Middle-men tried to "game" the system
    3. Use records It is suggested that place restrictions of any kind overlap with privacy TRUs, and can be contrasted from alternative anonymity examples and from the public area generally. By saying "use this here" a restrictive creator inherently carves off boundaries between consumers and the rest of the world around them.

    A prime example is the control that a production company first releasing a new movie exercises as to show locations. At least, as was the case before the Internet.

    Also, some cultures consider certain locations holy and most commonly perform, express and sing certain compositions primarily in those locations, for example church choirs. In fact, many governmental functions are similarly configured, for example militaristic displays with mark-bearing shields.

    Somewhat conspicuously, this right runs right up against TRU space-shift. The question for DMP will be what digital support should be given for both.

    4. Nature There is no significant legal support for this right, however all the law presupposes technological delivery limitations that support this. So this TRU is supported in fact and the law has worked around whatever set of facts preexisted disputes (or the need for regulatory policy).
    5. Benefits Right-holder
    6. Possible digital support Although there might be many opportunities for which it was possible to support authorial restrictions of place, it should be noted that these could interfere with privacy and TRU political freedom.

    Clearly some restriction could be made that DMP DM was to be consumed on DMP-compatible devices, which is a manner of place restriction in itself.

    Support for TRU of regional pricing also would include TRU to restrict place of use to some degree.

    Note possibility of supporting types of entertainment predicated on place-restriction, such as electronic tour guides or navigational content.

    In many ways, support for this TRU is entirely a matter of REL granularity, that is to say that access restrictions should be sufficiently fine-grained to give creators good alternatives to choose from.

    Note one possible example of support for this TRU is described in the DMBM template for a Location-Based Entertainment NetKiosk.

    7. Requirements DMP shall support configurable restrictions on where content is consumed.
    8. References  

    66

    Criteria

    Description

    1. Name TRU to restrict time of use
    2. Summary description creator's right to specify time restrictions on when their creations are to be consumed, for example a restriction could apply authorising only late-night performance of material unsuitable for minors or for example Christmas songs that sell only during that holiday season; significant mainly as having affected the analogue past of TRU reproduction thus conditioning economic aspects within which Middle-men tried to "game" the system
    3. Use records Because time is a part of everything we do, any time restrictions forced on End-users by media create very significant limitations. TRU political freedom could potentially be hurt by many restrictive practices that could be based on time formulas for when certain media could be consumed. Note however that acceptable time formulas are feasible, such as the analogue usage of "media exploitation chronology" covered at TRU lending and TRU rental in which distribution methods of differing media types cascade in sequence.

    Basically, because of the way TRU distribution works, first publication remains a meaningful point during which a creator is expected to be allowed the maximum control over how their final release is commercially 'shared' with the world. After that, things get a little looser. For example, some VHS or DVD copying could be private, once a movie was "out of the theaters" or if someone wanted to scan a book and make their own private PDF of it. As more and more time passes after publication/release, greater latitude is given for something much like fair use, for example U.S. first sale doctrine (GIC 5.5.I.4).

    With regards to TRU time-shift, this means time-shifting usully enjoys wider latitude as time passes beyond the commercial window of first publication (although news could very well be the opposite of this rule). Since that is the solution, the remaining questions for DMP mostly regard specifics of what is allowed when. Unnecessary restrictions seem worth avoiding, since why make life hard?

    4. Nature Analogue restriction, de facto when it occurs.
    5. Benefits Right-holder
    6. Possible digital support Although there might be many opportunities for which it was possible to support authorial restrictions of time, it should be noted that these could interfere with privacy and TRU political freedom.

    Clearly some restriction could be made that DMP DM was to be consumed on DMP-compatible devices, which consequently could support several kinds of time restrictions.

    Note possibility of supporting types of entertainment predicated on time-restriction, such as daily prayer or study curricula.

    In many ways, support for this TRU is entirely a matter of REL granularity, that is to say that access restrictions should be sufficiently fine-grained to give creators good alternatives to choose from.

    Note one possible example of support for this TRU is described in the DMBM template for a Location-Based Entertainment NetKiosk.

    7. Requirements DMP shall support configurable restrictions on when content is consumed.
    8. References  

    67

    Criteria

    Description

    1. Name TRU to make content creation devices.
    2. Summary description The ability to manufacture or otherwise create devices for creating content for Digital media.
    3. Use records Manufactures have been able to make content creation devices for any type of content that has been available.
    4. Nature Until the advent of the DVD, there was no restriction on who could manufacture and market what.  With the DVD however, those wishing to manufacture and market devices must be party to the DVD trust management system.
    5. Benefits The more manufactures there are creating products for Digital media, the wider the market for Digital media will become.
    6. Possible digital support Trust management.
    7. Requirements Support for trust/risk management systems.
    8. References TRU to make playback devices

    68

    Criteria

    Description

    1. Name TRU to assign content description
    2. Summary description To relate content to descriptions that support some degree of interpretation of the content's meaning.
    3. Use records
    • A movie producer assigns information describing the creation and production processes of the movie (director, title, short feature movie)
    • A broadcaster assigns information related to the usage of the programme (copyright pointers, usage history, broadcast schedule)
    • A DVD manufacturer assigns information of the storage features of the DVD (storage format, encoding)
    • A script continuity person assigns structural information on spatial, temporal or spatio-temporal components of the movie (scene cuts, segmentation in regions, region motion tracking)
    • A post production company assigns information about low level features in the film (colors, textures, sound timbres, melody description)
    • An editor of a newscast assigns conceptual information of the reality captured by the newscast (objects and events, interactions among objects)
    • An editor of a programme guide assigns information about how to browse the TV programmes in an efficient way (summaries, variations, spatial and frequency subbands, ...)
    • A stock photo agency assigns information about collections of images
    • A game user assigns information about the interaction with the content (user preferences, usage history).
    4. Nature Customary TRU: traditionally users have enjoyed the possibility to assign descriptions to content that was available. The very act of publication gives others rights to refer to it.
    5. Benefits The value of information often depends on how easy it can be found, retrieved, accessed, filtered and managed.
    6. Possible digital support
    • Description Tools that allow for creating content descriptions. (e.g. [1])
    • Comprehensive metadata for authorship and titles of releases could be developed and licensed both by for-profit and non-profit groups.
    7. Requirements
    • Standards
    8. References [1] - MPEG-7 Overview

    69

    Criteria

    Description

    1. Name TRU to access content of one's choice
    2. Summary description traditionally users have enjoyed the possibility to access any type of content that was available (books, cassettes, broadcast transmissions)
    3. Use records FCC Chairman Powell on Feb 8 said, "consumers should have access to their choice of legal content. Consumers have come to expect to be able to go where they want on high-speed connections, and those who have migrated from dial-up would presumably object to paying a premium for broadband if certain content were blocked. Thus, I challenge all facets of the industry to commit to allowing consumers to reach the content of their choice. I recognize that network operators have a legitimate need to manage their networks and ensure a quality experience, thus reasonable limits sometimes must be placed in service contracts. Such restraints, however, should be clearly spelled out and should be as minimal as necessary."
    4. Nature Put forward in a speech by Michael K. Powell, Chairman of the FCC at the Silicon Flatirons Symposium February 8, 2004 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243556A1.doc
    5. Benefits Recommended for consumers to demand from their choice of broadband service provider
    6. Possible digital support This can be enabled in a variety of ways ranging from activist to locked-down. Basically title information can be made freely available over the Internet with creative commons guidelines for reuse, or else all title database data could be served from a server in Switzerland. Or both in some combination. Additionally, proprietary uses of such a database could thrive in particular if the primary database data itself was treated in a Creative Commons manner. This at least suggests a moral rights service that addresses the French inalienable moral rights and provides that information in some universally available format, for example suitable for XML-based data feeds.
    7. Requirements Determine to what extent the specifications for this are part of the RQ phase versus the conformance phase.
    8. References  

    70

    Criteria

    Description

    1. Name TRU to run applications of one's choice
    2. Summary description traditionally users have enjoyed the possibility to run any types of application that was available on their PCs
    3. Use records FCC Chairman Powell on Feb 8 said, "consumers should be able to run applications of their choice. As with access to content, consumers have come to expect that they can generally run whatever applications they want. Again, such applications are critical to continuing the digital broadband migration because they can drive the demand that fuels deployment. Applications developers must remain confident that their products will continue to work without interference from other companies. No one can know for sure which "killer" applications will emerge to drive deployment of the next generation high-speed technologies. Thus, I challenge all facets of the industry to let the market work and allow consumers to run applications unless they exceed service plan limitations or harm the provider’s network. "
    4. Nature Put forward in a speech by Michael K. Powell, Chairman of the FCC at the Silicon Flatirons Symposium February 8, 2004 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243556A1.doc
    5. Benefits Recommended for consumers to demand from their choice of broadband service provider
    6. Possible digital support In the DMP scope, a primary concern for application availability and viability for its processing in whatever runtime environment might be available is specifying the operating environment applications have to comply to. Specifying and documenting this is an important responsibility that should proceed with some participation from representatives of the application development community.
    7. Requirements Determine to what extent the specifications for this are part of the RQ phase versus the conformance phase.

    Provide guidance for applications developers to fit seamlessly into DMP platform capabilities

    8. References  

    71

    Criteria

    Description

    1. Name TRU to attach playback devices of one's choice to a network
    2. Summary description traditionally users have enjoyed the possibility to attach any device to the telephone network that did not damage it
    3. Use records FCC Chairman Powell on Feb 8 said, "consumers should be permitted to attach any devices they choose to the connection in their homes. Because devices give consumers more choice, value and personalization with respect to how they use their high-speed connections, they are critical to the future of broadband. Thus, I challenge all facets of the industry to permit consumers to attach any devices they choose to their broadband connection, so long as the devices operate within service plan limitations and do not harm the provider’s network or enable theft of service. "
    4. Nature Put forward in a speech by Michael K. Powell, Chairman of the FCC at the Silicon Flatirons Symposium February 8, 2004 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243556A1.doc
    5. Benefits Recommended for consumers to demand from their choice of broadband service provider
    6. Possible digital support Although this remains somewhat low-level for DMP at this pre-implementation point in the work, correct specification of devices and types of attachment should be made clearcut and take advantage of manufacturing efficiencies where possible. For example, to what degree would DMP encourage or permit USB or Firewire attachment? The connector might be a more stubborn bottleneck than the behavior of the device to be attached.
    7. Requirements Determine to what extent the specifications for this are part of the RQ phase versus the conformance phase.
    8. References  

    72

    Criteria

    Description

    1. Name TRU to access information about content
    2. Summary description traditionally users have enjoyed the possibility to find descriptions of available content to guide their purchasing/viewing/listening/educational decisions
    3. Use records FCC Chairman Powell on Feb 8 said, "consumers should receive meaningful information regarding their service plans. Simply put, such information is necessary to ensure that the market is working. Providers have every right to offer a variety of service tiers with varying bandwidth and feature options. Consumers need to know about these choices as well as whether and how their service plans protect them against spam, spyware and other potential invasions of privacy. "
    4. Nature Put forward in a speech by Michael K. Powell, Chairman of the FCC at the Silicon Flatirons Symposium February 8, 2004 http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243556A1.doc
    5. Benefits Recommended for consumers to demand from their choice of broadband service provider
    6. Possible digital support The support for information about content addresses a number of interests almost simultaneously. For one thing, there is what a home user might want to keep track of privately. There is also most obviously the availability on the device of information about what the device and its associated content are actually costing each consumer, so they can budget their use and avoid "sticker shock".
    7. Requirements Determine to what extent the specifications for this are part of the RQ phase versus the conformance phase.

    Provide support for service plan availability of data.

    8. References  

    73

    Criteria

    Description

    1.

    Name

    TRU to share content with members of a group

    2.

    Summary description

    Sharing content with members of a group is distinct from sharing content via a public performance.This TRU is typically enjoyed in the private domain, where the group comprises people with whom the licensee of the content has some acquaintance, either through long-standing friendships, familial relationships or even as mere passing strangers.Traditionally, people rarely share their content, in the context of a private rendering of that work, with an anonymous group of total strangers.

    Some sharing is serial, in that the work is passed from the first purchaser of the content, to other people, once the first purchaser has finished with it.

    Other content sharing with members of a group is concurrent, where all members of the group witness a single rendering of the work simultaneously.

    • Some types of content are typically for personal consumption (a book) – this is an example of serial sharing, where the book can only be read by a single person at a time and is passed to other readers, either when the first reader has finished, or chapter-by-chapter, between a husband and wife, for example.The book can be gifted or sold, with no infringement of the author’s copyrights.
    • Others are typically shared (newspapers, magazines) – publishers of these works factor in the number of people that will typically consume a single copy into their business models, applying a multiplier to any sales of advertising impressions, for example.Newspapers and magazines are often supported entirely by advertising revenues. The marginal production cost of the additional impressions of an ad attributable to second and subsequent readers is precisely zero, since no additional copies of the ad have to be printed to make an impression, whereas the advertiser has accepted each copy to represent some multiple of impressions, agreed by reference to audited readership survey data.So there is economic advantage to the publisher of the magazine or newspaper in having the content shared.
    • Some are typically enjoyed in a group (a movie, a broadcast) – we like to gather in groups and watch things together, for the companionship of shared experience, to bond socially and to perhaps stimulate debate about the issues raised, after the movie or broadcast has finished.Sharing content with members of a group concurrently plays an important part in creating and maintaining social relationships.
    • Some have both personal and group-wise consumption modalities (music) – sometimes we listen to music to facilitate the euphoria of solitude, at other times to study it in concentrated detail, still other times as background sonic wallpaper to our daily activities and yet others as a group social event.

    Sometimes a member of the group, as the author of that work, owns the content that is shared, but often the content’s author is a third party.

    3.

    Use records

    There are many documented instances of sharing content with members of a group, including file sharing on peer-to-peer networks, playing movies in a home cinema for a select group of friends, acting as the DJ in an audio-enabled Internet chat room, deliberately leaving your newspaper on the train for others to read, placing books into the market for second hand books, reading aloud in literary study groups, gathering to watch the Superbowl on television with a group of friends, making a compilation tape of your favourite songs for your best friend, etc.

    Sharing content is primarily a social act , where generosity can be extended to others.

    4.

    Nature

    Many of the instances of sharing of content with a group are protected by the first sale doctrine, where the entitlement to control the use of an original work of authorship ends after the first sale of a copy of the work to a consumer.After the consumer has bought their copy, it becomes their property, to do with it what they wish, unencumbered by the wishes of the author.

    The law draws a distinction between public and private performance, tolerating the latter.Private personal consumption is unregulated.No author or any other agency has a right, under law, to examine what you are reading, listening to or viewing without your express consent.By extension, the sharing of media with members of a group, whether formally or informally associated, has been largely unregulated.Very few jurisdictions limit the right of free association of its citizens or the right to assemble however and wherever they wish.The distinction between public and private performance seems to hinge upon whether or not a member of the audience for such a performance is exclusively qualified to join, in some way.A performance made in a public space or where anyone can enter without restriction is public.A performance made in a private space or where inclusion is by invitation or formal membership of an assembly is private.There are certain to be many grey areas in between, which is why copyright law makes specific exclusions for some particular associations (such as prisons and oil rigs, for example).

    Whereas the home taping act covers the duplication of works for personal use, to make format translations, for the convenience of movement of the content from player to player or to provide a backup against data loss, there is no implied permission to make copies for friends or members of a group.However, this has been widely tolerated, since it would be inordinately expensive and oppressive, and not in the public interest, to prosecute each and every instance of making a copy for friends.The effects of such copying can be ameliorated by a levy on blank tapes, DVDs or CDs, for example.Traditionally, the act of copying involved a cost to the copier, in terms of the time taken, the reduction in quality in the copy due to generation loss and the cost of a blank, which tended to limit the extent of taping for friends.

    What has made copying for friends, as a means of sharing with members of a group, less tolerable to producers of copyright works is the speed with which a copy can be made, the very low cost of making the copy and the perfect reproduction of the original made possible by digital media.Additionally, copies can be easily distributed globally.Individual consumers have a cost and speed advantage over traditional media distributors, since the former can replicate a work of original authorship perfectly and distribute it globally within a short amount of time and at a very low cost, whereas traditional media distributors have tended to remain wedded to producing physical, shrink-wrapped copies of the work in capital intensive, central duplication plants, transporting these to consumers via wholesale networks and subsequently via retail outlets.

    The perceived need to restrict sharing content with members of a group is the extent of content copying and/or the reach of broadcasting that can be achieved by individual consumers, at very low cost, with digital technology.Content owners and producers wish to limit how many unlicensed copies can be made, how many people can share a single licensed copy and how many people can simultaneously experience a rendering of the licensed copyright work at any one time.These limits were implicitly imposed by the nature of the technology for delivering content to consumers in the past, but with digital media, it is argued, these limits are no longer sufficiently restrictive.

    Any restrictions placed on the sharing of content should not interfere with other TRUs, such as those personal rights of use enjoyed by consumers with content that has both personal and group-wise modalities.

    5.

    Benefits

    People often define a significant part of their personalities and sense of identity by the types and styles of content they are interested in.For that reason, people have traditionally shared their content to communicate or suggest qualities and attributes about themselves that they prize.Books are passed to other readers both to give another person the opportunity of enjoying the work, but also to be seen as a generous person, with certain tastes and interests.When a book is donated to a charity, for example, the person donating the book experiences an elevated sense of well being in having given their property freely for a good cause.

    Content sharing also has a social justice and wealth redistribution element, in that people that have purchased content will often give it to people that do not have the purchasing power to buy their own copy, or sell it to them at reduced rates, either directly or via the second hand market in content.Because the content a person selects communicates much about their identity, the experience of sharing content concurrently in a group is a means of discovering social similarities and shared values amongst members of the group, which can have positive, community-enhancing or peer-group cementing effects.

    The purpose of sharing content with members of a group has been to extend pleasure, both to the person sharing the content (feeling good about sharing) and the group with whom they share it.

    The word “community” has its etymological roots in the concept of “giving amongst ourselves”; so sharing content with members of a group can be understood as a community building activity, which increases the stock of social capital in the world.

    Sharing content with members of a group has a significant value to society, which should not be discounted by limiting the discussion to purely economic arguments (private capital).

    6.

    Possible digital support

    Technologies to Limit the Extent of Copying

    Pay-per-copy levies, analogous to a levy on blank media, with proceeds distributed to a pool of copyright owners, or to the artist whose work is being copied.

    Reference counting, to limit the number of copies made from a single master (e.g. serial copy protection bit and broadcast flag).

    Disallow repeat copies or renderings (private performances) from a single item of content for fixed periods of time (a week must elapse before another copy can be made, for example).

    · Destructive copying – a copy from source to destination destroys the source.

    Sharing by invitation only, with named individuals – limit the number of participants in a private online audiovisual chat room, for example.

    Artificially inject digital noise in the copied digital media, degrading the quality of the copy compared to the original.

    Permit unlimited copying of excerpts, but use DRM to gate copies of the entire media file.

    Differential pricing, controlled by DRM, based on the time elapsed since the media was first released, becoming cheaper to license, the older it is (thus creating a disincentive to unlicensed copying).

    Watermark digital copies with both the identity of the source and the identity of the person making the copy.

    Technologies to Limit the Reach of Sharing

    Copying limited to local network neighbourhood addresses (imposing small worlds).

    Copying limited to specific branches or domains of the network.

    Copying limited to pre-defined geographies.

    Reference counting to limit the number of serial copies made from a single source. (The copyright holder can choose the number of serial copies they permit).

    Permit sharing only to explicitly named group members.

    Limit the number of concurrent group members with whom the content is shared.

    Limit the total number of other people that the content is ever shared with, over the duration of the copyright protection.

    Reference counting (or estimation) to limit the number of simultaneous copies in existence at any given moment, over the entire population of copies, to some multiplier of the number actually sold to date.

    Technologies to Clearly Delineate Online Private Performances

    Publishing listings of the content you have available to share, in a machine searchable way and available to persons unknown to you, perhaps constitutes public performance rather than private.

    Sharing content in a private, invitation-only, online audiovisual chat room, with limited membership numbers, constitutes a private performance.

    A condition of participating in a shared virtual data space, such as a shared document repository in a collaborative workgroup, for example, may be the waiving of your rights to control access to and copies of original works of authorship that you contribute to the shared data space.

    Technologies to Adequately Compensate Copyright Owners for Unlimited Copying and Sharing

    Price content according to some multiplier representing the average number of users with whom it is expected the content will be shared, as determined by audited circulation surveys.

    Enlist consumers as content distributors, permitting users to redistribute content, so long as the copyright owner gets paid (and the redistributors also gets paid).

    Permit a single philanthropic licensee to bulk-purchase licenses in a work, perhaps at a discounted rate, allowing the licensee to give those copies away for free, to whomever he or she chooses.

    Technologies to Enhance Access to Content for People with Limited Purchasing Power

    Differential pricing controlled by DRM, relative to the net worth of the consumer.The more their net worth, the more they pay to license a copy and vice versa. (Simulates the traditional second hand market, but with a continuum of pricing levels for people of differing economic status).

    Allow content owners to waive most but not all of their copyrights, publishing their works into the public domain, under a creative commons license, for example.

    Technologies to Protect Metadata Representing Personal Preferences for Content

    Class the metadata representing a person’s preferences for particular content as “content” itself and protect the copyright of that listing of favourites with DRM technology, so that the person’s information about their personal content preferences can be monetised or offset against the cost of licensing content.

    7.

    Requirements

    • Any devices designed to limit the extent and reach of media dissemination, when used in the context of sharing content with members of a group, requires some harmonisation of the laws governing what is legitimately tolerated and permitted, over all jurisdictions.
    • Limitations to sharing content with members of a group must not prevent all sharing, since sharing has a value measurable as social capital.
    • Limitations to sharing content with members of a group must not restrict other rights, such as rights of personal, private consumption, where that content has multiple modalities of use.
    8. Requirements  

    74

    Criteria

    Description

    1. Name TRU to improve end-user experience
    2. Summary description The ability of an individual to create content and services that are expected to be of value to the end-user
    3. Use records The examples confirm that, at least in the past, there was a drive to improve end-user experience. Of course using innovation should not be an imposition but a free choice for the end-user.
    • Sound recording: vinyl, compact cassette, compact disc, MP3 players. Each of these improved the end-user experience.
    • Radio broadcasting: its ability to stream continuously audio to end-users, albeit with the limitation that the users were limited in the selection of the sound they liked. This was mitigated by the increased number of thematic channels.
    • Server in the sky: Lastly you go to the "server in the sky", arguably the end point in the user experience...
    4. Nature Customary TRU, supported by legislation (or lack thereof...).
    5. Benefits The ability to improve the end-user experience essentially it is what justifies continuous innovation in media use, particularly for digital media. All experiences compete with each other on many levels and in different media. There is a market for digital media experiences and if users have a choice, they will create the digital media experience that is most valuable for others. However, recent developments in the distribution and use of digital media (e.g. market concentration, p2p) have posed a threat to the free market of digital media experiences.
    6. Possible digital support As long as science, research, teaching and art are free, society should be able to improve the end-user experience in the digital domain. However, if media companies own the complete value-chain (creation, distribution, technical infrastructure, billing), it can be a very profitable strategy to create monopolies by introducing proprietary DRM technology. The problem is that most media-related markets do not operate correctly, hence the almost continuous need for government intervention. The very existence of an interoperable DRM solution will be a potent force driving markets to operate correctly. Without such a solution the prospect of huge concerns controlling the entire value chain is frightening.
    7. Requirements
    • Open standards for content encoding and interoperable rights management
    • Well documented content formats available to the public under fair and reasonable conditions
    8. References  

    75

    Criteria

    Description

    1. Name TRU to choose security
    2. Summary description To choose a system on which enough trust can be put to use it together with sensitive information [1].
    3. Use records Security is a property assigned to IED and IDP hardware and software.

    Throughout history people could (more or less) choose the systems they use together with sensitive information:

    • To be sure that nobody can access their private data (e.g. private photos), users can encrypt the data using a system of their choice
    • If two users want to keep their conversation (e.g. by e-mail or by phone) secret, they can choose a trusted system.
    • If a group of users needs to collaborate (e.g. business people exchanging data), the users are able to agree on a trusted system and choose the necessary security.
    In these use records the TRU to choose the security only bears on the users' trust in the system. The TRU does not depend on the question who owns the rights of the content for which the system is used, nor does it matter whether the content is analog or digital. If the users do not trust the system anymore, they can change it (e.g. use another hardware, another software, another encryption algorithm,...). Since the advent of digital media (e.g. DVD, Pay-TV) there is a restriction on who can choose the security.
    • The DVD-CCA [2] prescribes their security solution to DVD content producers and device manufacturers
    • Digital Pay-TV service providers prescribe their security (e.g. Conditional Access systems) to broadcasters, device manufacturers and paying subscribers.
    These use records show that only certain media users can choose the security. Users who do not trust the system are not able to change it (e.g. use another hardware, another software, another encryption algorithm,...). You might qualify that with the "take it or leave it" aspect that users can reject the system but not alter how it is configured.
    4. Nature Customary TRU, supported by competition law
    5. Benefits The benefit for users is obvious: the ability to choose security is a pre-condition for the free flow of information, freedom of choice for consumers, media pluralism and cultural diversity. The media user's independence of the security for content usage accounts for competition and economical growth of the media industry.

    Security imposed upon media users by certain players (e.g. content providers, service providers) raises interesting questions:

    • Can media users, who have no choice of security trust service providers that their private data are not misused?
    • Can media users who have no choice of security be liable [3] for copyright infringements caused by broken security on their systems?
    6. Possible digital support
    • Conditional access systems
    • Content encryption systems
    • DRM solutions
    7. Requirements
    • The user shall be able to transfer security relevant information (e.g. cryptographic keys needed for user identification, the usage of applications and services) from one device to another (also in case of a defective device)
    • Specifications shall not create market entry barriers for service providers or industry sectors
    • Specifications shall be independent of the requirements of a particular hardware or software and shall not be used to exclude certain platforms or solutions.
    • DRM solutions shall be system-open so that the effort for implementation on different hardware platforms is comparable
    • The patent policy shall not be used to exclude competitors (e.g. by unreasonable license fees).
    • The patent policy should find arrangements for Open Source projects (e.g. exemption from patent license fees for non commercial Open Source projects)
    8. References [1] - Tomas Olovsson quoted in "Computer Security: A Practical Definition"
    [2] - DVD Copy Control Association
    [3] - Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on measures and procedures to ensure the enforcement of intellectual property rights

    76

    Criteria

    Description

    1. Name TRU to restrict adaptation
    2. Summary description 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 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 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 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  

    77

    Criteria

    Description

    1. Name TRU to restrict performance
    2. Summary description this is traditionally referred to as the right of performance and vests control in the Author over other's use of their work to create performances, recordings or broadcasts bringing the original composition "to life"; there is a tension between this TRU controlling what may be done with works and the TRU performance that will create performances based on these original works
    3. Use records This "right" is particularly applicable to owners of intellectual property consisting of literary and artistic works, giving them quasi-sovereignty over the downstream economic uses of their creations. Performers just have to rough it as to when to use these "literary and artistic works" as the basis of their performances, particularly since this can sometimes trigger required payments. Performers generally show some ingenuity in avoiding payment, and IP owners certainly exercise their legal freedoms to try and collect money from performers who are identified as doing well in terms of financial success, giving performances based on material created by someone else.

    Although this is a very old right, playwrites must expect to have their work stolen, adapted and parodied, as well as copied onto many private copies that are exchanged and loaned in manuscript of some kind. That is what is traditional. Two months after you open on Broadway, some actor might give an audition with a speech out of your play if it's good.

    This is one of a group of secondary rights based on an already fixated literary or artistic work from which derivative copies are made of an inexact kind. This underlying process renders authorial control most difficult, and entails a sort of passed-around afterlife for fixed media that is difficult to regulate or monitor, in which many versions of diverse varieties may have the names of others upon them as owners in some degree. For example owning a piece of fixed media that one has made private remixes of, so that one has intellectual property ownership over the remix.

    The performance-related TRUs are presented as a group of templates organised as follows:

    • TRU restrict performance -- controlling what can be done with a work
    • TRU performance -- basing a performance on the work
    • TRU restrict adaptation -- controlling the creation of altered versions of a work
    • TRU adaptation -- making an altered version based on an original work
    • TRU translation -- controlling the creation of translations as well as making translations
    • TRU parody -- escapes authorial control but better be funny

    An example might help ilustrate how these performance-related TRUs work together. The "taking liberties" that is quintessentially the performance right is like the liberties musicians might be expected to take, playing music printed on sheet music but still making up passages and phrases as they play. The maker of the sheet music's music would be considered the original creator with the ability to restrict performance. After that -- which is what has traditionally been called the "performance right" -- comes what we are calling "TRU performance" which could more properly be considered the right or usage to give a performance. Whether or not our fictitious musicians riff or scat or take improvised cadenzas, they are going to act like they have the right to perform whether we like it or not. It's their gig. If we try to stop them they will lock us out of their space and do their own thing.

    It is worth noting that performing a piece of music to a different tempo or rhythm than the composer intended alters the piece, sometimes in fundamentally important ways.

    A particularly improvisational one of these musicians might be prolific at making adaptations, for example creating different words, notes and/or melodies, all fitting within the general form or structure of what was on the sheet music. In analogue law, the main reason the sheet music guy retains a right to restrict adaptation is because lawsuits only happen if that original creator of the music has been ripped off. There is a TRU moral rights aspect too, depending on the type of adaptation, in that the creator of the work that provides the original basis might deserve credit and thanks, as many musicians feel for Duke Ellington, or as many actors are grateful to Shakespeare. As for TRU adaptation, as the right to make adaptations, this covers our creative improviser of derivative works but he might be the only guy in the band who can do this.

    Translation of course is clearly distinct because it involves spoken language. But let's imagine our musician's sheet music has a lyric in Spanish. But one of the musician/singers is bilingual with Portuguese and keeps slipping in between the original Spanish and Portuguese, throwing in phrases as well as just a Portuguese word or two. Parody would be if all the other guys in the band made fun of him doing it; parody often has an aspect of "picking on" someone or something.

    The point of reviewing all these other TRUs is to emphasise the kind of looseness inherent in the comparison between the inexact copy and the form of the original composition or media. A performance or adaptation is thoroughly a derivative work of some kind; this is very different from annotations or quotations which are essentially analytical. These loose, performance-related TRUs all imply something creative and very protectable. At the same time, as to the boundary between expressions and ideas separating intellectual property one can lay claim to from its underlying building blocks, this line is crossed and again and again when messing around with all of this loose copying. Much of the attraction to perform works by others is that some wonderful, compelling quality of the original work might spark, inspire or otherwise lead to "acting it out" for making some other new use of it. Miracles can happen when messing around with other people's stuff, with expressions and ideas all mixed, derivatively shuffled in with the performer's bravado into a new work of media, potentially a protectable work of intellectual property in itself.

    4. Nature WHAT IS A PERFORMANCE?

    It seems to be the fate of this word "performance" to serve primarily as either a general term or else as a "laundry list" of particular types of performance that qualify to belong. It is a long list. As quoted by Paul Goldstein at International Copyright section 5.4.I.I.B.i, a House Report leading up to the U.S. 1976 Copyright Act said, "a singer is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set."

    It is not possible to reliably generalise as to what exactly "a performance" is in itself, however there is something evident in the character of a performer giving a performance, and so it is easier to think about this TRU in terms of performers. In many ways, this ambiguity surrounding what constitutes a performance has shaped the analogue nature of this TRU, causing it to be managed very differently from literary and artistic works. For example, the Rome Convention Article 3(a) defines performers as "actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works." The performance is strictly considered something other than the work, but its status is troublingly ambiguous.

    It is easier to attach or visualise TRU moral rights for performances, in that certainly a performer deserves a credit. In fact, artists who execute versus those who interpretatively perform a work also deserve both moral and economic rights, as is the case with an orchestra conductor or a movie producer, including studio executives. French law makes an interesting distinction between "artiste interprète ou exécutant" separating the interpretive performers per se from the orchestra conductors and movie producers who execute the work (IC, section 5.I.2.I).

    The economic rights pertaining to a performance are even hazier, particularly because they vary. In the U.S., which is very slanted towards economic rights, there are trademark, contract and criminal laws that handle most of it except for the nebulous cloud of first amendment free speech, educational uses (see TRU of copying for classroom instruction), journalistic recitation of facts (see TRU of factual reporting), and fair use. Other countries have many more varieties of exceptions and it gets quite complicated for anyone not working in a collecting agency or government bureau according to a particular country's specific legislation. For example patriotic public performances of songs are royalty free in many countries; also this is sometimes confined to patriotic days or celebrations, but sometimes not. Since this immense complexity can only be properly administered by someone knowledgeable, the world has been forced to rely on local agencies, which Goldstein describes as essentially having a "law" all their own. "It is no exaggeration to say that, for each right they administer, these societies have, through their reciprocal relations with counterpart societies throughout the world, created their own private law of copyright relations." (IC, sec. 5.2.2.3)

    The international mediation between collecting agencies permits members of a foreign country to be treated the same as members of the country of the local agency. Exchanges such as this can be merely bilateral (a straightforward instance of TRU of reciprocal protection) or can comprise a larger group, for example the Berne Union. Several odd examples can occur and are given at TRU of reciprocal protection.

    This is a right very easily taken away by legislation, at least in part, and also potentially subject to compulsory licenses under TRU equitable remuneration. For example, in the U.S., recording artists and record labels do not have a performance right with respect to radio broadcasting. Composers and music publishers do, but artists and labels have not been given symmetrical protection.

    STREAM OF ECONOMIC EXPLOITATION

    This category of performances, even including other TRUs listed above (e.g., restrict adaptation), is like a stream fed by two springs. First is the traditional exploitation of manuscripts by publishers as well as other secondary uses of "literary and artistic works". One can review the definition of "literary and artistic works" thinking entirely of potential performances, adaptations, translation or parodies that one can imagine might be possible based on: books, pamphlets, lectures, "damatic or dramatico-musical works", music, cinema, drawing, painting, architecture, sculpture, prints, posters, photographs, sketches and topo maps (Berne Article 2). It is truly in the nature of a successful literary or artistic work that it can be performed, adapted, etc.

    The other spring feeding the stream of exploitation is new technologies, particularly phonograms and broadcasts, but ultimately any making available by wire or wireless (as in TRU of communication to the public). This has been largely the subject of neighboring rights. "At the same time that philosophies of authorial personality and case law on moral right were forging a doctrine of author's right, technologies were beginning to emerge that would challenge the doctrine's assumptions respecting authorship. Photographs, it might be thought, were the products of a mechanical process, not of an artist's creative vision; motion pictures were the product of corporate organizations, not the labors of individual authors. After some agonizing, civil law countries brought photographs and films within author's right, but they drew the line there and rejected author's right protection for performances, sound recordings or phonograms, and broadcasts. Instead they created for these and other new technological productions a regime of neighboring rights--droits voisins in France, Leistungsschutzrechte in Germany, diritti connessi in Italy." (Goldstein, IC, sec. I.2.2)

    TREATIES

    The Berne Convention Article II(I) gives this TRU to composers as follows , "Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorizing: (i) the public performance of their works, including such public performance by any means or process; (ii) any communication to the public of the performance of their works." Articles IIbis and IIter extend this to authors for broadcasting, rendering by loudspeaker, and recitation of their literary and artistic works. Article 14 grants related TRUs to relating to movies.

    While Berne has been the main treaty for authors, the "Rome Convention" has served as the defining early treaty for performers, also covering phonograms and broadcasts. It is more properly called the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. The Rome Convention was agreed upon in 1961 after work began in 1949 concerning issues such as "remedying the technological displacement of performers" (Goldstein, IC, sec. 2.2.I.I). Rome's solution to most everything is reciprocal protection through national treatment, more or less on the argument that the most protection a performer can hope for is the same protection a country gives to its own nationals. Rome Convention Article 2(I) defines national treatment as that given by a State, "(a) to performers who are its nationals, as regards performances taking place, broadcast, or first fixed, on its territory; (b) to producers of phonograms who are its nationals, as regards phonograms first fixed or first published on its territory; (c) to broadcasting organizations which have their headquarters on its territory, as regards broadcasts transmitted from transmitters situated on its territory."

    Rome is in a sense wrapped around Berne, obligated not to take anything away from Berne while adding its own additional protections. These two are then subsequently enveloped or wrapped by provisions of other treaties. In a sense, TRIPs came next, providing for general and generous protection of intellectual property and leading to many instances of powerful local economic legislation protecting the interests of performers, for example U.S. antibootlegging statutes protecting recorded performances (IC, sec. 4.2.3). The newer WIPO treaties (WCT and WPPT), influenced by TRIPs, wrap an additional layer including provisions geared to protecting performances delivered over the Internet, with the WCT modernising Berne, whereas the WPPT modernises the Rome Convention and "provides that its terms shall not impair the contracting parties' existing obligation under the Rome Convention." (IC, sec. 2.2.3)

    5. Benefits The general policy behind this is that the author's ownership interest in whether performances are allowed or not benefits society as a whole because it provides creative types with a financial incentive to create. Looked at sideways, it can seem like Authors benefit while all others have to pay royalties.
    6. Possible digital support Secure printing of sheet music for performers is already widely practiced and the basis of numerous Internet business models. There are also multi-user licenses, and it is easy to imagine DMP enabling all group members with IED devices to access the relevant sheet (to perform from) on their personal devices, perhaps adjusted for their individual instrument.

    There is room to create new categories of "performances" in the digital space. Although this might seem to call for caution, it may equally be true that the concept of performances is more than flexible enough to accommodate DMP's needs. It is interesting to imagine an ISP being in the "executive artist" role for sponsored content directed to the ISP's subscribers; the spectrum of Service Provider types is generally conducive to being bandleaders who assemble programming packages. It should also be possible for a High School student to do this in their spare time, assembling playlists of multiple content for others to enjoy and possibly pay for.

    7. Requirements Protocols for users to save their work should allow both saving as a completely original work and also saving as a work with some derivative originality, for example a performance. Metadata for human-readable fields such as names are required by TRU moral rights. In this sense, the file/bitstream must have "identity", that being a composite (metadata assemblage) of multiple ID material, as well as user declarations of IP ownership, conforming overall to some sort of information representation model.
    8. References  

    78

    Criteria

    Description

    1. Name TRU of contracting for middle-men to broadcast
    2. Summary description Authors and other creators of media periodically need the distribution services provided by Middle-men who can arrange for the creator's media to be broadcast.
    3. Use records "Broadcast" conventionally means terrestrial transmission of RF signals from towers. Conventionally this has meant either radio audio or television video. More recently, digital terrestrial broadcasting as well as satellite broadcasting have become well established (even including digital video embedded in otherwise analogue network television).

    As of this writing, the DMP Terminology defines Broadcast as "The Function of transferring Content to a Device in a point-to-multipoint mode."

    It is noteworthy that the term "broadcast" has traditionally meant or implied some sort of corporate organisation owning the broadcast towers themselves. The corporate nature of this is significant because the services performed by a broadcaster are more impersonal than those performed by an Author or other creator.

    4. Nature This is one of a group of TRUs that also includes:

    This is a well established right in most countries that have a significant amount of commercial freedom, however it is noteworthy that major television stations often either have close ties with the government or else are acting essentially as an extension or an agency for the government. In either case, it is common to hold broadcasters accountable to decency standards since the point-to-multipoint mode risks exposing the multipoint to so many unwanted incidences of material that should not be broadcast (as regionally defined and/or administered).

    5. Benefits Authors (and/or other creators) and middle-men benefit most directly, but End-Users would never know of many media they might like to consume were it not for this TRU and the diligent efforts of middle-men.
    6. Possible digital support The topic of "broadcast" was repeatedly discussed between TRU WS and GA03 and it is generally agreed that there are tremendously appealing technologies that could be deployed, as well as many DMBM's to support different types of content programming.

    The importance of enabling TRU contracting for middle-men to broadcast is because right now this is how shows get on TV and someday this is how DM will take advantage of future digital broadcast technologies.

    7. Requirements none at this time
    8. References  

    79

    Criteria

    Description

    1. Name TRU of contracting for middle-men to publish
    2. Summary description Authors and other creators of media periodically need the distribution services provided by Middle-men who can arrange for the creator's media to be published.
    3. Use records The fact of publication is contained in TRU of first publication/disclosure, but in this case publishing can have many broader or more vague meanings. Publication has a definite time and also a definite place, although there can be several of both, for example in France on one day and then in the United States 30 days later.
    4. Nature This is one of a group of TRUs that also includes: Publication has often had a glamorous appeal as far as authorship implying a firm ownership of related intellectual property rights. The ideals of the great composer or great painter are intrinsically tied up with this sense of the great author whose books sell millions of copies (e.g., Cervantes).

    A more cold-blooded view of what publication really means in the future as a distinct thing from other DM would be that e-book promoters would probably use the word "publish" in their advertising copy because it sounds book-ish.

    However, see Possible Digital Support, below, regarding legal importance of establishing day and country of publication.

    Because "publish" implies "author", the law regarding this tends to treat "literary or artistic works". There is a sense in which performances are not published, meaning that "published" is a word that very much suggests the printed word if not, more formally, books themselves.

    5. Benefits Authors (and/or other creators) and middle-men benefit most directly, but End-Users would never know of many media they might like to consume were it not for this TRU and the diligent efforts of middle-men.
    6. Possible digital support It must be possible for authors to publish through middle-men on a certain day in a certain country, because these are points of "attachment" for treaty law (e.g., Berne). If one imagines an essentially simultaneous global webcast as publication, as far as national treatment it is important to be able to document the sequence of where and when a work was published.
    7. Requirements none at this time
    8. References  

    80

    Criteria

    Description

    1. Name TRU of contracting for middle-men to release
    2. Summary description Authors and other creators of media periodically need the distribution services provided by Middle-men who can arrange for the creator's media to be released.
    3. Use records The concept of a "release" has most commonly been associated with packaged music media. This could be short for "release from embargo" since retailers have generally received shipments they are embargoed from selling until a specific release date.
    4. Nature This is one of a group of TRUs that also includes: As described above, "release" implies that people have been holding on to copies of something, so that when they release it they let go of it so to speak. In terms of the law, this is indeed a very big relinquishing of control, because as with publishing, once it is out there, users are able to make some copies of parts of it based on exceptions and limitations to TRU reproduction, or transfer ownership such as the U.S. example of "first sale". So by releasing something, one is in a sense really putting it out there for mass use to take over (or fade out).
    5. Benefits Authors (and/or other creators) and middle-men benefit most directly, but End-Users would never know of many media they might like to consume were it not for this TRU and the diligent efforts of middle-men.
    6. Possible digital support It is too hard to know what this word "release" should really mean on a digital level, because it is so general that it might be a fitting generalisation for any publication or other making available of Digital Media. Is any "making available" of Digital Media a "release"?
    7. Requirements none at this time
    8. References  

    81

    Criteria

    Description

    1. Name TRU of contracting for middle-men to promote
    2. Summary description Authors and other creators of media -- as well as many Middle-men who might themselves already be media distributors -- periodically need the distribution-related services provided by Middle-men who can arrange for the creator's media to be promoted.

    Making known to potential users the existence of valuable content is a very important function that can typically not be performed by the creator. Content promotion to different users (particularly end-users) is regularly entrusted to middle-men (or, if within the same company, to another department in the same company). (this paragraph from Leonardo e-mail)

    3. Use records The number and variety of promotions are almost too numerous to count, as marketing experts find new approaches and uncover new demographics, basing succesful promotions on time-windows during which a distinct approach works for a distinct demographic.
    4. Nature This is one of a group of TRUs that also includes: Promotional services are a vast and hard-to-define area because they must really work in order to be considered successful, resulting in some sort of clearly identifiable result. Promotional services are always very distinct from sales itself, although salesmen are generally expected to convey promotional messages as part of their selling.
    5. Benefits Authors (and/or other creators) and middle-men benefit most directly, but End-Users would never know of many media they might like to consume were it not for this TRU and the diligent efforts of middle-men.
    6. Possible digital support Contractual hooking-up of Authors and Middle-Man-Promoters should be much easier to support than enabling the promotions themselves. Promotions normally require a message as well as identifiable people to receive that message, and the synchronicity of what makes this work rarely lasts more than a few years, because "tastes" change and the competition catches on to what works and copies it. Providers of promotional services need to be able to come up with new and ever-more-thrilling ways to succeed within the DMP IDP/IED DRM environment
    7. Requirements none at this time
    8. References  

    82

    Criteria

    Description

    1. Name TRU of adaptation
    2. Summary description in opposition to the traditional creator's TRU to restrict adaptation, this TRU refers to the common tendency to create adaptations and derivative works regardless of whether these are legally authorised; creators of adaptations acquire a copyright in their adaptations but not to the prejudice of prior copyrights in the material that was adaptated
    3. Use records With all the force of "fan fiction" it seems the need to make adaptations is unstoppable, often involving some sort of performance of adapted versions. This question of what constitutes an adaptation can be helped by contrasting it with TRU translation and TRU parody. In many ways a translation is a special case of adaptation that is well-defined because it narrowly relates to language. Parody is a special exception to the rule that authorisation is needed, and illustrates some sort of boundary of adaptation since the parody must be different enough from the original to stand out as a parody. Like TRU performance, this TRU adaptation can potentially be considered a province comprised of either thieves or licensees, but that is not a constructive way to look at it.
    4. Nature Berne Article 2(3) protects "adaptations" of literary and artistic works, but as Paul Goldstein discusses at section 5.I.I.I.B.v of International Copyright, there may be "significant ambiguity about the legal status of a derivative work created without permission from the copyright owner of the underlying work."

    This is a very productive usage and for the creative person, provides an excellent reason to get a rounded education and exposure to many sources from which adaptations can be made. Many original works can be created when someone starts by adapting something someone else did, but winds up creating an authentically original new work. Also, some fans are aching and eager to "play" with their favorite beloved characters by being able to act out or create scenes in which they appear. An author might want to restrict the scope of these and many successful scenarios can be imagined. Equally, if an author did not want their work adapted into repugnant forms, like pornography, they could restrict this although the creator of the repugnant form would likely resort to parody in order to go ahead anyway. This has frequently been done.

    The creator of a derivative work should not make it harder for someone who buys their adaptation to buy a reproduction of the original. The merchandising of derivative works was once parodied in Mad Magazine along the lines of, "You liked the book, so you'll love the movie; you liked the movie so you'll love the TV show; you liked...so you'll love the cocktail napkins." The cascading effect of this merchandising can be considered part of the original author's stream of economic exploitation.

    5. Benefits The big question of whether this is done legally has a lot to do with the big question of who benefits. In itself, perhaps, this TRU is neutral. It would benefit a creator of an adaptation to receive permission to go ahead from the author of the original. It could benefit the original author to have the adaptation done by somebody else, provided that the adapter do a good job. Since these conditions permit multiple outcomes, arguably the question of who is helped or hurt by this TRU should be answered by, "It is neutral."
    6. Possible digital support There is a lot that media creation devices can do to support adaptation, even to the point of creating customised adaptation through computer programming. Arguably, many videogames permit a large degree of this, and some videogame user groups have taken it quite a bit farther, for example allowing importation of customized "sprites" or environments.

    An interesting e-mail remark of Leonardo's on March 4, 2004 pertains to this. Phil was recommending that we did not need to do a template for TRU fixation because it is an analogue example that has almost no bearing on the digital space. He believes that our DMP Terminology use of "fixation" is almost completely distinct, and that since Digital Media is based on different natural phenomena than analogue media, so the meaning of "fixation" is radically different. Leonardo countered that analogue fixation was a very meaningful right and Phil asked whether he was suggesting it was in TRU political freedom. To which Leonardo replied that TRU political freedom was "too big" but that it "of course" included fixation. Phil does not understand fixation well enough to have much of an opinion, and so he veered into a question based on the idea-expression dichotomy (as well as the approach of Kant and others to author's rights by sweat-equity in intellectual property under natural law). Phil asked "Are you saying it is somehow the fundamental right to physically make an expression bearing the imprint of the creator's personality." Leonardo replied, "In computer language it is the right to output a version of the internal computer memory in a way that fits the features of the selected output." What Leonardo said should be digitally supported and could be considered an implementation of TRU of adaptation.

    7. Requirements Adaptations should be able to use copyrighted material, automatically tabulating what has been used where. That way subsequent permissions can be sought and there is at any rate no effort to conceal the nature of the Use.
    8. References  

    83

    Criteria

    Description

    1. Name TRU of performance
    2. Summary description in opposition to the traditional creator's TRU to restrict performance, this TRU refers to the common tendency to stage or broadcast performances of works regardless of whether these are legally authorised; performers acquire a copyright in their performances but not to the prejudice of prior copyrights in the material being performed
    3. Use records Although this could be considered a TRU that is comprised of either thieves or licensees, still it has been pointed out that much of the appeal of intellectual creations is how easily they can be used. Should every talent show painstakingly and conscientiously pay collecting societies, not to mention whether summer camps and churches should pay? Well they probably should in some countries but not in other countries. It would be good if the transaction costs could be lowered by DMP IED and IDP efficiencies. It has been ever thus that performances happen. Tunes heard on the radio are sung in front of friends, relatives and school assemblies.
    4. Nature In International Copyright, Paul Goldstein warns that it is difficult and delicate to know when a performance qualifies as a protected derivative work. "The more subtle question of where performance leaves off and authorship begins -- when, for example, a conductor's interpretation becomes an arrangement entitled to protection as a derivative work -- requires the most delicate analysis of the copyright and neighboring rights laws of the protecting country." (section 5.I.2.I, emphasis added) Although we have now been warned, it is worth calling attention to the jumble of neighboring rights treatments as constituting the tricky thicket here.

    Goldstein also calls attention to the merits of performances as deserving protection. For example, at sec. 5.I.2, "A performance by a leading concert pianist may embody as much, if not more creativity as the trite advertising jingle that qualifies for author's right protection." Although the U.S. handles everything under copyright, many European countries treat literary and artistic works under author's right and treat performances by what are called "neighboring" rights. It is an irony that neighboring rights are often resolved between collecting societies acting as good neighbors, because as further discussed at TRU of reciprocal protection the international "neighbor" one might imagine is in the phrase "neighboring rights" is just an artifact caused by a coincidence of language. Neighboring rights are so-called because this tradition considers the rights of performers to be a neighbor to the more revered author's right.

    Performers were given international moral rights of attribution and integrity for "the first time" (IC, sec. 2.2.3) in 1996 under the WIPO Performances and Phonograms Treaty (WPPT) Article 5. What Goldstein refers to, at sec. 5.I.2, as the "second tier of intellectual property protection" varies from country to country and accepts corporate executives or orchestra conductors to varying degrees. Audio recordings and broadcasts in general are lumped with public performances under the Rome Convention, which has many nations agreeing to do their own thing to foreign performers by applying national treatment to them.

    * * *

    On the one hand, it can be considered that a person with a right to perform presumably has some license or contract if the material they are using was created by someone else. On the other hand, that assumption is not reliably confirmed in the real world. What can be relied on is that people are generally looking for chances to attract money or attention performing other people's material that they don't have to pay for. Indeed, on the nightclub DJ free music scene, artists often encourage influential DJs to play even unpublished stuff as part of trying to build a reputation. So then could one say it is fine to perform someone else's stuff if that other person gives their OK? That depends on whether the creator retains the right to restrict or not to restrict. It is likely if the composition is popular that some sort of Middle-man has gotten involved, who would possibly have a contract signed with the artist/composer granting TRU to restrict performance to the Middle-Man. So what's a performer wanting to perform someone else's stuff to do? Maybe go ahead anyway and hope they don't get sued?

    In other words, this is primarily a usage, not a right, although it can alternatively be a right granted by contract or license. On the other hand, this is one of those TRUs that can be considered as old as civilization itself. Distinctively, the performance creates its own copyright if it is sufficiently original, but that copyright might be of little value without the original author's authorisation to perform. More on this and TREATIES at TRU to restrict performance.

    A related distinction is between private and public. Playing sheet music or reading a play out loud in a home theater show, even videotaping it, can be permissible private activity. To a degree TRU performance is only meaningful as having limits for what can be done in public. Except the modern digital reality somewhat nullifies this distinction. Home consumption of Digital Media needed new treaties and legislation to be regulated -- as done by WIPO -- so as to take home Internet consumption out of the private permitted category. There is little doubt that distributing DM of someone else's tune or play constitutes something of a performance made available to the public. Restrictions on circulation could limit this, for example if it was only sent by e-mail. Making such DM available broadly on a P2P network would probably be considered quite public and require written permission to do so. Of course it is well past time that electronic permission for such things should have become more commonplace. EMI, for example, has made church choir songs available as sheet music where the purchase includes the right to perform the composition in church.

    It is notable that a performance based on a public domain literary work can qualify for copyright protection if it is sufficiently original.

    5. Benefits End-user who wants to perform something. Potentially, a creator who gets compensated.
    6. Possible digital support Other than obvious things like sales of sheet music or dramas, some judgement is called for regarding interactive participation with multimedia in which the interaction itself constitutes something of a performance. To a degree, a very good videogame player can be considered to perform on the game. It can certainly be good entertainment to watch the TV display of an excellent player doing a car race or skateboard videogame. Would remixing music tracks or playing certain types of interactive quizzes be considered a performance? Would the supplier want to arrange a contract to resell user interaction as a DM for other users? Inevitably.
    7. Requirements none proposed at this time
    8. References  

    84

    Criteria

    Description

    1. Name TRU not to apply DRM to a piece of content
    2. Summary description These days, almost every word we write is automatically protected by copyright but this does not mean that we want or need it all automatically protected by DRM. There should be no technical or legal requirement to apply DRM to content if the rights holder does not wish it.
    3. Use records DRM was not available for most of our history while untold numbers of creative works were produced and distributed. Hence most traditional content has not used DRM.
    4.  Nature Traditional Rights and Usage – Billions of books, records, tapes, and other analogue works have been produced and distributed without the use of DRM.

    Any work in the public domain should be freely available to all (1). The application of DRM might impede access for citizens without the correct technology. Even if a set of DRM standards had widespread acceptance there may still be devices which are outside the standard and so could not render the content. One of the principle aims of copyright is the social benefit of the widespread distribution of creative works.

    Poor consumers, without access to any digital technology, should still have access to legal copies of copyrighted works.

    The mixing of protected and clear content has always been allowed under copyright to produce such secondary creative results as play lists and mixed media creations.

    Authors and artists will always be producing original content as raw data and they should be able to review this content on any device in unprotected form even if at a later date they add DRM to distribute the content.

    Legal – The legal protection provided by traditional copyright has been considered adequate in the past and it is the author's right to continue to use the substantial protection of copyright law without using technical measures of control.

    5. Benefits The free flow of creative works without the overheads of DRM could be a benefit for both authors and consumers.

    Intermediary players aiming to add value to a work might be adversely affected

    6. Possible digital support Digital distribution systems and reproduction devices should not inhibit the flow and use of content which does not have DRM applied to it. DRM enabled systems could actively propagate unmarked, public domain, content by reproducing clear content on demand.

    Interconnected DRM enabled systems could provide user requested search services to advise the consumer if the unmarked work has had DRM accidentally or illegally removed.

    7. Requirements Unprotected or unmarked works should have no restrictions applied to them. DRM devices and systems should allow the mixing of clear and protected content to allow the creative process to continue with such things as the production of inventive play lists for example.
    8 References (1) - “... and simultaneously to ensure that as many works entered the public domain as soon as possible, so that the public could make unfettered use of them.” Jessica Litman, Sharing and Stealing, page 11. http://www.law.wayne.edu/litman/papers/sharing&stealing.pdf

    85

    Criteria

    Description

    1. Name TRU to syndication
    2. Summary description through syndication a rights holder can simultaneously make his content available to several channels (description per Leonardo e-mail)
    3. Use records The realities of syndication can be varied. Combining content into rights packages can be a very effective marketing strategy. For Authors or other creators, having one's work made available by means of syndication can mean the difference between a life of wealth versus struggling to make ends meet. It should be noted that TRU to determine context of use comes into play since syndicated rights packages often have a special flavor or individual style.

    print newspaper syndication -- Most pieces of a print newspaper can be assembled from elements provided by syndicators, including news stories, editorial columns, comics and advertisements, although a newspaper is expected to do something on its own as well, such as covering local news stories and providing local advertisements.

    cable/satellite network programs -- The shows that are seen on themed cable/satellite networks are often assembled from multiple rights-syndication packages. A producer might "go in with" a syndicator so their shows would be included in content bundles made available (by the syndicator) to cable/satellite networks.

    4. Nature Legally supported by most real world systems of contractual commerce. A potential exists for interference from government, advertisers or special interest groups.
    5. Benefits Primarily benefits rights holders by allowing them additional access to revenues.
    6. Possible digital support Our existing expectation regarding grants of rights from Author to Middle-Men that in turn may be granted forward through the value chain should be sufficient to support this, however specific forms of syndication might require additional appropriate rights language for support.
    7. Requirements none at this time
    8. References  

    86

    Criteria

    Description

    1. Name TRU to choose mode of economic compensation
    2. Summary description Choice of form of compensation to rights holders (creators, performers and interpreters) for consumption of content by end users.The right for anyone to use their original works or products as a token of exchange as in barter or alternate currency models.
    3. Use records Benefit concerts, free recording of concerts (example: grateful dead) in order to develop good will.Perform in the Hotel in exchange for lodging.
    4.  Nature Both legally supported and customary TRU
    5. Benefits Both content creators and end users may benefit from allowing a broader spectrum of economic compensation methods which are not limited to the availability of conventional money. For example an artist may make use of his work subject to the end user providing services to the elderly or some other cause.

    The digital space provides a very fertile basis for creating innumerable protocols for value exchange, the most obvious being immediate barter of content for content.All creators of content who are also consumers of content may benefit from content bartering. 

    Another possibility would be making content available to communities (i.e. in the developing world) allowing the content to be used as a medium of exchange thus providing desperately needed exchange mediums or making access to content contingent on support of development project in the form of services accounted for in man hours.

    6. Possible digital support License terms (REL), use reporting and copy control, watermarking persistent association.
    7. Requirements  
    8. References  

    87

    Criteria

    Description

    1. Name To determine context of use
    2. Summary description Due to the moral rights attributed to authors over their content in a considerable number of legal jurisdictions (i.e. European continental Author Rights legislation), authors may invoke limitations of use or access to their content on the basis of context.
    3. Use records

    An author may prohibit use of his work in association with a given political event, commercialisation of a product or in a particular location or territory. The right holders of Master Rodrigo’s works has prohibited the dissemination of his works on the internet

    4.  Nature

    The Berne Convention for the Protection of Literary and Artistic Works as amended in 1979 Article 6bis states:

     « Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. »

    In current Spanish law, the< color:blue"> question of use of the work is clearly supported in terms of control over contextual circumstances of use where such contexts may affect the intellectual or moral convictions of the author.Furthermore, such convictions may change in time allowing for the author to remove the work from circulation, albeit having to indemnify the owners of any economic rights. Pertinent, parts are highlighted in yellow.

    CHAPTER III CONTENT

    Section 1 Moral Rights

    Article 14. Content and characteristics of Moral Rights

    The following inalienable and irrepudiable rights belong to the author:

    1. Decide whether or not the work is to be published as well as the way it is published
    2. Determine if such dissemination is to be done with his/her name, a pseudonym or insignia or anonymously

    3. Demand recognition of his/her condition of author of the work.

    4. Demand that the integrity of the work be respected and prevent any deformity, modification, alteration or attack that results in prejudicing his/her legitimate interests or even reputation.

    5. Modify the work respecting the acquired rights of third parties and the exigencies due to the protection of objects of cultural interest.

    6. Remover the work from commerce due to change of his or her intellectual or moral convictions prior to providing indemnity to owners of rights of exploitation.

    7. If later the author should decide that the work is to be commercialized anewhe should offer preferably the corresponding rights to the previous owners of said commercial rights in reasonably similar conditions as before.

    8. Access unique or rare copies of the work, when it is in under the custody of others, with the end to exercise the right to divulge or any other right that belong to the author.

    9. This right does not permit demanding that the work be moved and access to the work shall take place in the place and form that cause the least inconvenience to the owner, to whom shall be indemnified, should the case require, for any damages or inconvenience that he/she may suffer.

    5. Benefits Authors and creators may determine the scope and nature of the dissemination of their works, be it for commercial strategy purposes or moral prerogative.
    6. Possible digital support Watermarking, user identification, device identification, automatic generation of audit trail, description of human profiles and more DEUs ….
    7. Requirements DMP shall support the determination of use profiles.
    8. References The Berne Convention for the Protection of Literary and Artistic Works as amended in 1979 Article 6bis.

    88

    Criteria

    Description

    1. Name TRU to make a print of a video scene (repurposing)
    2. Summary description equipment has existed for a long time that enables an end-user to print a snap shot or screen capture from a TV program (description per Leonardo e-mail)
    3. Use records The example of printing a scene from a movie or TV has long been a general usage, although perhaps not a common one. Of course expertise in film or video technology made this easier, and people from the production industry were likely to have readier access to the knowledge of how to do this.

    The ability to accomplish screen captures from video is now well within the powers of most desktop computers. Most PC users might lack any idea how to do this, but their computers could do it. For perhaps a generation now, the technology and knowledge of how to use it has been near at hand and reasonably available, with many people -- perhaps millions -- having made a personal print from a video scene at some time.

    Apart from the narrow instance of screen capture, this TRU can address general repurposing. Repurposing can be considered defined by the actions of a mind putting old things to new jobs through creative rethinking. Ease-of-repurposing can be a compelling benefit for having one's media library in digital form.

    4. Nature As an analogue usage, printing video scenes has been no threat to the sales of videos. It has no doubt impacted print publishers of celebrity photographs, but one probably could not demonstrate that it put anybody out of business. To a degree, this has been the sort of "fair usage" that existed on the dry shore, not touching the financial waters of the Author's stream of economic exploitation.

    This TRU can serve as a stand-in for all digital repurposing, which is a somewhat limitless area. Other DMP contributions that touch on repurposing include:

    • TRU #76 to restrict adaptation — a list of 11 other TRUs related to the "adaptation" aspect of repurposing
    • TRU #82 of adaptation — note "Possible Digital Support" discussion of "the right to output a version of the internal computer memory in a way that fits the features of the selected output"
    • TRU #36 of distribution — note "Possible Digital Support" discussion "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."
    • LBE DMBM WiFi NetKiosk — elaborating distribution concept for DM-branded merchandise
    Because this is just the sort of decentralized use that is traditionally unregulated or else not vigorously monitored, it has generally been an unlicensed activity. An exception to this is described at TRU that sales displays will follow acceptable practice, for example movie retail print-packaging publicity will commonly include scenes from movies, and this develops into the cross-market merchandising potential for any brand.

    In each case, the issue is what rightsholders rights over the actual media used are affected by this usage. In the analogue world one solution is the minimal requirement that a defendant should have had some financial success to make it worthwhile for anyone to sue him. If a product became successful using an identifiable image of a movie scene, licensing would quickly become a requirement. As long as this is just a college kid decorating his dorm room walls with pictures printed off the Internet, that is more of a fair use.

    5. Benefits Benefits people who love the content that is being repurposed, so certainly End-Users but perhaps everybody, MM and RH too.
    6. Possible digital support Yesterday's "fair use" is tomorrow's Digital Media Business Model. Every aspect of repurposing an entertainment brand's content is capable of having a DMBM built around it. Indeed, wearable computing and programmable jewelry are sure to soon place us in a society where people wear brands on some sort of visible (programmable) display on their clothes.
    7. Requirements DMP DRM shall technically enable repurposing and adaptation of content so that rendering or transcoding to new information representation formats will not be hindered by lower-level DRM.
    8. References