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Copyright Management Systems – Intellectual Property Rights – Digital Rights



Copyright Management Systems – Intellectual Property Rights – Digital Rights


COPYRIGHT MANAGEMENT SYSTEMS

INTELLECTUAL PROPERTY RIGHTS

Copyright Management Systems

Copyright

Before I enter in to the copyright management systems, the point I would like to clear is “what a copyright is”. It’s possible to find many descriptions but to briefly tell [1] “a copyright is a form of protection provided by the laws to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.” This protection is available to both published and unpublished works. Owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords;

• To prepare derivative works based upon the work;

• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

• To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

[1] According to the United States Copyright Office

Copyright 2is the term used to describe the area of intellectual property law that regulates the creation and use that is made of a range of cultural goods such as books, songs, films and computer programs. Also we can say that copyright 3gives the creator of an original work exclusive right for a certain time period in relation to that work, including its publication, distribution and adaptation; after which time the work is said to enter the public domain. Copyright applies to digital works also such as e-books, internet music, software, computer games. Copyright applies to any expressible form of an idea or information that is substantive and discrete and fixed in a medium.

Copyright may apply to a wide range of creative, intellectual, scientific, or artistic forms, or “works”. Specifics vary by jurisdiction, but these can include poems, theses, plays, other literary works, movies, dances, musical compositions, audio recordings, paintings, drawings, sculptures, photographs, software, radio and television and broadcasts.

Moral and Economic Rights

Moral rights can be considered as a signature of the person (artist, musician, programmer, author). Even though distribution or selling rights may not belong to the person who created it but still in aspect of moral rights his or her name should be used. It’s also possible to use the name of the creator to respect. Moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work bars the work from alteration, distortion or mutilation. Anything else that may detract from the artist’s relationship with the work even after it leaves the artist’s possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her rights to a work to a third party, he or she still maintains the moral rights to the work.


Some jurisdictions also recognize “moral rights” of the creator of a work, such as the right to be credited for the work.” In law, copyright is grouped under the umbrella term intellectual property along with patents and trademarks. Copyright has been internationally standardized, lasting between fifty to a hundred years from the author’s death, or a shorter period for anonymous or corporate authorship. Some jurisdictions have required formalities to establishing copyright, but most recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.

Economic rights grants the copyright owner selling, renting or lending copies of the work to the public, 4 performing, showing or playing the work in public, broadcasting the work or other communication to the public by electronic transmission, making an adaptation of the work, such as by translating a literary or dramatic work, transcribing a musical work and converting a computer program into a different computer language or code, Issuing copies of the work to the public.

Most jurisdictions recognize copyright limitations, allowing “fair” exceptions to the author’s exclusivity of copyright, and giving users certain rights. The development of the Internet, digital media, and computer network technologies, such as peer-to-peerfile sharing, have prompted reinterpretation of these exceptions, introduced new difficulties in enforcing copyright, and inspired additional challenges to copyright law’s philosophic basis. Simultaneously, businesses with great economic dependence upon copyright have advocated the extension and expansion of their copyrights, and sought additional legal and technological enforcement.

4 Intellectual Property Office UK

Copyright management systems

Copyright management systems that enable copyright owners to regulate reliably and charge automatically for access to digital works 4The advent of digital networks, which make copying and distribution of digital content quick, easy, and undetectable, has provided the impetus for CMS research and development. CMS are premised on the concept of “trusted systems” or “secure digital envelopes” that protect copyrighted content and allow access and subsequent copying only to the extent authorized by the copyright owner.2 Software developers are testing prototype systems designed to detect, prevent, count, and levy precise charges for uses that range from downloading to excerpting to simply viewing or listening to digital works. CMS also loom large on the legislative horizon. Copyright owners have argued that technological protection alone will not deter unauthorized copying unless the law provides penalties for circumventing the technology.

Content Scrambling System, Windows Vista Protected Media Path, Advanced Access Content System, CD Logo Type can be considered as attempts to avoid unlawful usage of the works that are under copyright protection but none of these systems has been able to be successful. It has been possible to bypass, avoid or alter these protection systems without the knowledge of any special expertise.

Content Scrambling System used a simple encryption algorithm, and required device manufacturers to sign license agreements that restricted the inclusion of features, such as digital outputs that could be used to extract high-quality digital copies of the film, in their players. Thus, the only consumer hardware capable of decoding DVD films was controlled

Windows Protected Media Path, tries to stop restricted content from playing, in order to prevent the unsigned software from accessing the content.

Advanced Access Content System is a system for HD DVD and Blu-Ray Discs developed by the AACS Licensing Administrator, a consortium that includes Disney, Intel, Microsoft, Matsushita (Panasonic), Warner Brothers, IBM, Toshiba and Sony. In December 2006 a process key was published on the internet by hackers, enabling unrestricted access to AACS-restricted HD DVD content. After the cracked keys were revoked, further cracked keys were released.

The iTunes Store, run by Apple Inc., allows users to purchase a track online for $.99 US. The tracks purchased use Apple’s FairPlay copyright protection system.

Napster music store, offers a subscription-based approach to copyright protection alongside permanent purchases. Users of the subscription service can download and stream an unlimited amount of music transcoded to Windows Media Audio while subscribed to the service. There have also been similar protections for computer games and e-books.

Legislative Protection

Digital rights have received some international legal backing by implementation of the 1996 WIPO Copyright Treaty. Article 11 of the Treaty requires nations party to the treaties to enact laws against DRM circumvention.

Article 11
Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

The WIPO Copyright Treaty has been implemented in most member states of the World Intellectual Property Organization. The American implementation is the Digital Millennium Copyright Act , while in Europe the treaty has been implemented by the 2001 European directive on copyright, which requires member states of the European Union to implement legal protections for technological prevention measures. In 2006[update], the lower house of the French parliament adopted such legislation as part of the controversial DADVSI law, but added that protected digital right protection techniques should be made interoperable, a move which caused widespread controversy in the United States. On 22 May 2001, the European Union passed the EU Copyright Directive, an implementation of the 1996 WIPO Copyright Treaty. On 25 April 2007 the European Parliament supported the first directive of EU, which aims to harmonize criminal law in the member states. It adopted a first reading report on harmonizing the national measures for fighting copyright abuse. If the European Parliament and the Council approve the legislation, the submitted directive will oblige the member states to consider a crime a violation of international copyright committed with commercial purposes. The text suggests numerous measures: from fines to imprisonment, depending on the gravity of the offense.

The European Parliament members supported the Commission motion, changing some of the texts. They excluded patent rights from the range of the directive and decided that the sanctions should apply only to offenses with commercial purposes. Copying for personal, non-commercial purposes was also excluded from the range of the directive.

With Article 12 effective remedies has been tried to be implemented

Article 12
Obligations concerning Rights Management Information

(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:

(i) to remove or alter any electronic rights management information without authority;

(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

(2) As used in this Article, “rights management information” means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

On the other hand Article 13 has been implemented. This article has been discussed in manners of fair use and public domain materials.

Article 13

Obligations concerning Technological Measures

(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, by any person knowing or having reasonable grounds to know that the device or service will be used for, or in the course of, the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law.

(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).

(3) As used in this Article, “protection-defeating device” means any device, product or component incorporated into a device or product, the primary purpose or primary effect

While the discussion about this article in December 1996 with the accompanying comments, Chairman Liedes conceded that the proposed requirements were “more akin to public law obligations . . . than to provisions granting ‘intellectual property rights.’” He indicated that in implementing the

proposal, parties should consider “the need to avoid legislation that would impede lawful practices and the lawful use of subject matter that is in the public domain. “However, he maintained that a primary-purpose-or-effect standard for identifying unlawful devices, rather than a narrower focus on devices “specifically designed or adapted to circumvent” technological protection, was the only way “to achieve the necessary coverage.”

The primary-purpose-or-effect language met with considerable resistance. Many delegates expressed concern that the provision might restrict access to public domain materials and frustrate lawful uses of copyrighted works, such as fair use. 5Several delegates also expressed concern that the provision as worded would reach a variety of devices capable of substantial and valuable noninfringing uses. As finally approved by the delegates, the provision (now Article11), is substantially altered:

Article 11

Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.24

The new language focuses on the need for protection against the act of circumventing CMS, rather than the nature of the device used to accomplish circumvention.

Fair Use Doctrine

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.

The doctrine of fair use is no longer exclusive to the United States, with other jurisdictions having either implemented such a doctrine or considering its introduction.

While influential in some quarters 6, other countries often have drastically different fair use criteria to the US, and in some countries there is little or no fair use defense available. Even within Europe, rules vary greatly between countries. Some countries have the concept of fair dealing instead of fair use. However many countries have some reference to an exemption for educational use, although the extent of this exemption may vary wildly. What materials are for education can also be a different argument subject.

Fair dealing 7 is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations.

Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories. In practice, common law courts might rule that actions with a commercial character, which might be naïvely assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible a concept as the American concept of fair use.

To give an example case:

Nichols v. Universal Pictures Corporation 8, was a cause célèbre by the United States Court of Appeals for the Second Circuit on copyright infringement by non-literal copying of a dramatic work. The Court held that copyright protection cannot be extended to the characteristics of stock characters in a story, whether it be a book, play, or film.

Opinion of the Court was Judge Learned Hand, writing for the Court, noted that protection of literature can not be limited to the exact text, or else an infringer could get away with copying by making trivial changes. The question then is whether the part taken was ‘substantial’. However, it is impossible to set a firm boundary demarcating the line between work and ideas, he said, stating, “her copyright did not cover everything that might be drawn from her play; its content went to some extent into the public domain.” In this case, there was no infringement, as the ideas that are copied are really universal concepts and stock characters.

A&M Records, Inc. v. Napster, Inc., was an important intellectual property case in which the United States Court of Appeals for the Ninth Circuit ruled that the defendant, Napster, could be held liable for contributory infringement of the plaintiffrecord company‘s copyrights. The court also rejected the suggestion that it impose a compulsory licensing arrangement on the plaintiff record company. This was the first major case to address the application of the copyright laws to peer-to-peerfile-sharing.

The Ninth Circuit found that “Napster users infringe at least two of the copyright holders’ exclusive rights: the rights of reproduction, and distribution,.” With respect to the fair use arguments, the court sharply distinguished the facts presented from “the Betamax case”, Sony Corp. of America v. Universal City Studios, Inc. where the manufacturers of VCRs had no control over how people used them after they were purchased. By contrast, the court found that the owners of Napster could control the infringing behavior of users, and therefore had a duty to do so. Sampling was deemed to not be a fair use, because the “samples” were in fact permanent and complete copies of the desired media. Furthermore, the space-shifting argument did not avail the defendant, because the shift to a digital format was not a personal storage use, but was accompanied by sharing the file with the rest of the world.

The court also rejected Napster’s proposed compulsory royalty, calling that an “easy out” for Napster, and contending that the imposition of such a device would destroy the plaintiffs’ ability to control their intellectual property.

To understand the napster case we have to look at what Peer To Peer File Sharing is.

A peer-to-peer 9 computer network uses diverse connectivity between participants in a network and the cumulative bandwidth of network participants rather than conventional centralized resources where a relatively low number of servers provide the core value to a service or application. P2P networks are typically used for connecting nodes via largely ad hoc connections. Such networks are useful for many purposes. Sharing content files containing audio, video, data or anything in digital format is very common, and real time data, such as telephony traffic, is also passed using P2P technology.

As we see in peer to peer file sharing system there are no servers that distribute any copyright material but the distribution is done by individuals who already has the material in their computers. There is no upload but users are only downloading from the system. But still the court in the Napster case had an opinion on Napsters responsibility because Napster could have controlled the behaviors of the users.

Advantages and Disadvantages

The initiative of an author to authorize his work to be digitalized can have benefits and also carry risks. Among the benefits are the opening up of new markets and new opportunities to publicize the work (and offer better access to it). Among the risks are the danger of unauthorized copies and unauthorized use of the work. In the context of document information management, we can view CMS as a necessity and an imposition. However, CMS have advantages and disadvantages.

Advantages are:

CMS gives authors feed-back from statistics for reading/searches of their work in real time – This makes it possible to have in a organised and systematic way statistics on how many people accessed a certain paper, for instance, or an image or diagram in a specific work. This can ultimately help the author to determine the success or failure of his work and in this way be an incentive (or not) for the author to produce further works;

New source of revenue for example for authors – In the absence of CMS, authors would publish their works in the traditional way (i.e. paper magazines, scientific journals) or on the Web, making them available mostly free of charge. With the emergence of CMS, authors can have a new source of revenue that can be complimentary to traditional publication;

Incentive not to copy – Quite often, due to the small imprints of certain works, there are many works with limited numbers of printed copies in the face of what is really required by the market, and they therefore sell out quickly. As a result of this, the unauthorised copy will necessarily occur because people won’t be able to access these particular works. With CMS, the works are always available and this problem won’t occur;

Access control – CMS invariably involves an element of security and access control, which enables the restriction of who uses what information. This makes it possible to stop unauthorised use (without prior consent) of the works;

More and better contents – There is a tendency with CMS for authors to produce more (and better) contents once they know that their works may have some sort of compensation (academic and/or financial);

Editorial control quality – Since most of the information available through these systems must be paid for, one has to necessarily guarantee its quality – this can be assured by referees.

The use of CMS also has some disadvantages,

Restrictions on information access – Once the access and use of the information must be paid for, CMS are tacitly restricting access to it, since

there are several people that will be unwilling (for several reasons) to pay for the information, and thus to be granted access to it;

Implementation and running costs – CMS implementation has several costs, from which the following are taken:

Personnel costs – informatics professionals to implement and run the service, and referees to select the works present;

Costs of hardware and software – to these costs one must add the costs of developing specific application software and the possible acquisition of complimentary modules to the system.

Payment systems not secure – Nowadays there are still reservations regarding some payment systems. A good option is to implement a system where a payment is made in the first place and the corresponding amount is credited into the personal/corporate account that will be used in the future. Another possibility is to go for electronic payment systems (directly or indirectly connected to credit cards), and some of these are still not regarded by certain users as being safe;

High complexity of some access control and payment means – Some of the available options of access control and some of the available payment mechanisms are complex to use, which in practical terms may deter some people from using them, or of using them incorrectly;

No privacy – Most of the CMS include a user behaviour control component: what they acquire; preferred contents/works; rates of usage of the system. This data may be transmitted to publishers and/or to authors, and in this way, break users’ privacy. In this context, the identity of the users should be anonymous; but this raises questions related to certain payment systems which require user authentication, for instance.





Conclusion



CMS is a new but fast developing subject. It would be hard to expect that legislative protection can keep developing as fast as CMS. Legislation needs more time due to differences. it’s hard to find and develop a common legislation. Legislation will not be able to keep up with the developing speed of CMS technologies, also legislation will not be able to keep up with the technologies that can be considered protection defeating device.

Without a full cooperation between legislation and Copyright Management Systems there can never be a full protection for digital works.

Due to this large potential of internet any person can become a distributor unlike non digital materials. Even a 10 year old kid who is able to use keyboard and mouse can distribute, copy or even sell a copyright material in seconds.

In the upcoming legislation, implementations and treaties these subject should be wisely considered. Without harming fair use but still protection the rights of authors and creators legislation should find a balance in between.

In my opinion digital materials will become the most valuable products since they are easily accessible and creator friendly. An author can publish his book without needing a publisher company for example. This gives great chance to new authors.

To conclude, a reliable, easy to use and legal copyright management should be implemented to systems. This can either done by big computer manufacturers or programmers. In the legislation process unlike any other issue a big cooperation between countries is needed since internet is accessible from every country.