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.

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.

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. 

• 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

• 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

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

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

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.

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.

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.

• 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]

• 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]  

• Phones that provide security against anyone listening into calls
• Easy to use e-mail encryption

[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

• Anonymous Remailers
• Rewebbers [1]

• configurable TRU
• a user-set profile for the anonymous publication of content

• 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

• Trusted systems
• Anonymous identities for end user identification

• 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

• 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]

• 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

• 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]

• Machine readable privacy policies

• 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]

• 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

• 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.

• Secure e-mail
• VPN
• Digital libraries

• 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

"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]

"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]

"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]

• Eternity Service [2]

• Reasonable Copyright
• Semantic data structures which would enable enhanced machine based searches. [6]

• 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).

• 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]

• Creative Commons Sampling License [6]

• 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

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.

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.

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.

• 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.

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).

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.

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.

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.

• 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.

• 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

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.

• Document format converters
• Audio- and video codecs (decoders and encoders)

• Open standards for content encoding
• Well documented content formats available to the public under fair and reasonable conditions

• 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.

• 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.

• 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.

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.

• 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.

• 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.

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

• Decompilers/ Disassemblers

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."

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

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

TRU of fair use

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.

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 19^th 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 )

'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.

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.

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.

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.

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

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

• TRU to distribute lower-res copies only
• TRU to compel real-time only consumption
• TRU to restrict place of use
• TRU to restrict time of use

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:

• TRU communication to the public
• TRU to technological access restrictions

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.

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 reservations — Justification: de minimis; L/E/CL: exceptions; M/P: permissive; Rights: public performance, all rights under Article 11bis(1), public recitation;
  Conditions: de minimis
• translations — Justification: 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 controls — Justification: state power; L/E/CL: limitations; M/P: permissive; Rights: all rights; Conditions: must be for anti-trust reasons, none other

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).

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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)."

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."

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.

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."

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:

• BIEM -- http://www.biem.org/
• CISAC -- http://www.cisac.org/
• IFRRO -- http://www.ifrro.org/
• IFPI -- http://www.ifpi.org/

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

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.

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.

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.

Note RQs proposed for TRU integrity

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."

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.

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.

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.)

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.

• 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."

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.

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.

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).

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.

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

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.

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.

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.

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

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.

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).

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.

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."

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)

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.

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.

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.

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.

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).

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.

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.

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.

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.

• licensing for in-class use
• national guidelines for permitted in-class uses
• governance for in-class physical reproduction devices and vending

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

• 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.

• 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)

• open application programming interface in accordance with the minimum requirements of the relevant standards or specifications

• 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)

• 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

• open standards and specifications for delivery systems

• Content agnostic delivery systems [1]
• Common carrier obligations

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

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.

[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)

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."

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.

• 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.

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.

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

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.

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.

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.

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".

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)

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).

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

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.

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.

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.

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.

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.

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.

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?

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.

• 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).

• 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.

• Standards

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

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.

• 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.

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?

• Conditional access systems
• Content encryption systems
• DRM solutions

• 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)

• 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

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"

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."

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.

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.

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)

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.

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.

• TRU contracting for middle-men to publish
• TRU contracting for middle-men to release
• TRU contracting for middle-men to promote

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).

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.

• TRU contracting for middle-men to broadcast
• TRU contracting for middle-men to release
• TRU contracting for middle-men to promote

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.

• TRU contracting for middle-men to broadcast
• TRU contracting for middle-men to publish
• TRU contracting for middle-men to promote

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)

• TRU contracting for middle-men to broadcast
• TRU contracting for middle-men to publish
• TRU contracting for middle-men to release

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.

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.

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.

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.

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

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

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.

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.

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