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This is the transcript of a talk that Charles Oppenheim, copyright advisor to the eLib programme, gave at the LITC on February 19th 1996

Same column in issue 3

THE LEGAL ISSUES ASSOCIATED WITH ELECTRONIC COPYRIGHT MANAGEMENT SYSTEMS

Charles Oppenheim

Introduction

The owner of a copyright has the right to prevent others from selling, hiring out or renting, copying it in any form, performing the work in public, broadcasting the work on radio or TV, or amending ("adapting") it. These acts are the so-called restricted acts. Anyone who does any of these acts without permission is deemed to have infringed the copyright and can be sued for damages. Infringement is subject to the requirement that either all the work, or at least a "substantial part" of the work was copied.

If it is shown that the defendant did copy, then his or her intentions are irrelevant - in other words, whether the copying was malicious or accidental. Authorising an infringement is also an offence; it extends even to having a general atmosphere within an organisation that discourages respect for copyright. Under UK Law, though, it would not be authorising infringement by simply providing employees with the potential facility to infringe, as they may well wish to use such facilities for legal copying, as long as suitable warning notices are given to staff about the dangers of copying and as long as the employer has a track record of disciplining staff how have been found to infringe.

As far as taking a substantial part is concerned, the definition of substantial will vary from case to case. Substantial certainly does not mean a majority of the material, and can be a very small part indeed.

It is worth noting that the Copyright Act specifically states that storing a work in any medium by electronic means is copying, and therefore a restricted act.

It is also worth noting that the penalties for infringement, except for the most serious cases, are payment of damages and costs - in other words, it is a civil offence rather than a criminal one. The damages are the actual financial damages caused the copyright owner.

International Treaties

Copyright law is governed by international treaties - the Berne Convention and the Universal Copyright Convention. These allow for basic minimum laws in all countries who are party to the particular treaty, and allow for reciprocal protection for nationals from different countries. This means that if there is some question about copyright, it is the local law that applies.

If someone wishes to download some records from a French database loaded on a US host, the crucial question is what country he or she is in. In the UK, British law applies, and the person need not worry about what other laws have to say about this activity.

Impact of Contracts and Guidelines to copyright law

Contracts are a key feature of copyright. Because of the Unfair Contract Terms Act, no clauses can be included in a contract that would be considered "unfair" by the Courts. These would, arguably, include clauses that reduce the basic rights that someone would have under the provisions of the Act itself. For example, a contract that attempted in any way to reduce a client's statutory rights under "Fair Dealing", could be rejected as invalid by a Court. No such case has ever come up to the Courts to my knowledge, though.

Literary works

Current Electronic Copyright Management Systems relate primarily, although not solely, to what are known in copyright law as Literary Works, so we need to look at this aspect in more detail. In principle, ECMS can apply to all types of media, such as musical works, multimedia works, films, etc. However, the current interest is in Literary Works; the law for the other types of works is subtly different in places, so readers should not assume the comments below apply to such other works. One of the infuriating things about current copyright law is that it takes no account of the convergence of technology represented by multimedia!

What sorts of works are covered by copyright by the term "Literary Works"? Virtually anything that is written, printed or recorded in some other way can be the subject of such copyright protection under this heading.

It covers hand-written documents, books, pamphlets, magazines, the words of songs, poetry, learned journals, tabular material such as statistical tables or railway timetables, as well as computer programs, and data in machine readable form. There is no implication that this is quality literature.

Fair Dealing

Fair dealing is a defence against an infringement action. An individual may make a single copy, or in theory even multiple copies of a literary work as long as the copying does not damage the legitimate interests of the copyright owner and as long as it is for the person him or herself, and is for one of three purposes: for research or private study; for the purposes of criticism and review; and for reporting current events.

What would be considered "fair"? You will hear people saying: copying anything less than 10% of the original length as being acceptable. This is wrong. It is the quality, or importance of the material copied that is important not length. Look at it from a negative point of view. What if the material copied were missing from the work? How much would that reduce its value? If it would reduce it a lot, then the material copied is substantial and the copying is not "fair". If not, then it is not substantial and the copying is "fair".

Assuming the copying is for yourself, is not substantial and does not damage the copyright owner's commercial interests, it still has to be for one of those three purposes. Education is NOT amongst the permitted purposes. A teacher cannot claim "fair dealing" if offering copies of materials to students. In other words, all such copying is infringement. (In fact, the law does allow a miserly allowance to educators if they want to avoid accusations of infringement, but the allowance is so minute as to be meaningless.)

Incidentally, librarians have a unique place in Copyright Law as people exempt from the usual rules and as people permitted to make copies for their patrons, so long as copyright forms are signed and as long as they receive payment for the copies made.

Moral Rights

Moral Rights give the right of the author of a work to be acknowledged as the author, and not to have his work subjected to derogatory treatment. It also gives authors the right to not be falsely attributed with the authorship of a work he or she did not create.

It is important to note that authors must choose to assert their Moral Rights (they are not automatic as copyright is), but at the same time, Moral Rights can never be assigned - they remain with the author even if he or she assigned the copyright to a publisher. Therefore, contrary to some of their statements, publishers have no interest whatsoever in Moral Rights.

Moral Rights are extremely important in an electronic environment - it is extremely easy when downloading material to either omit the original author's name or to cut and paste material in a manner that might be considered derogatory. However, there is little ECMS can do to control such issues (other perhaps than to ensure that the author's name can only be deleted after a warning message is given). In theory, an ECMS could give a warning every time someone tries to cut or amend a portion of a text, but this is likely to annoy users.

Electronic copyright

Because of the ease, low cost, and impossibility of policing of copying materials in machine readable form (such as downloading) or of converting print documents into electronic form (so-called electrocopying), and because of the high quality of the resulting electronic copies, copyright owners are rightly concerned about copyright in machine readable records.

Only if these issues can be addressed to everyone's satisfaction can the proposed "electronic" or "virtual" library become a reality, as well as being technically possible. If, however, there is no agreement, then there is an increased chance of alienation between libraries/users and publishers, of library users flouting or ignoring the law, or of information users by-passing the publishers altogether and obtaining information directly from authors through bulletin boards.
This will not be in the interests of publishers, nor ultimately in the interests of the libraries or users. Publishers provide a means of controlling the information explosion by maintaining quality. By-passing them will be a serious step with implications for bibliographic control and the quality of research. There is already a delicate and tense relationship between data owners and data users. How can it be resolved?

It is here that ECMS - Electronic Copyright Management Systems - can perhaps help.

ECMS

Publishers have difficulty in agreeing to any license for the distribution in electronic form material for which they hold the copyright. There are two major reasons stated for their concern. The first is the worry that the material will be copied and/or re-disseminated in an unauthorised manner, and therefore, by implication, the publishers will lose sales. The second concern is that material will be amended and will then be passed off as new material, and it will be difficult to demonstrate that the material had originated from that material that the publisher owned rights to.

Such copying and amendment are, if carried out without the permission of the copyright owner, potentially copyright infringement. Furthermore, the amendment, if carried out without the author's permission, is potentially an infringement of the Moral Rights of the original authors.

There is a clear need, therefore, for the development of robust, reliable, economic and tamper-proof mechanisms to identify, or tag, copyright material and/or to control the usage of such material. The existence of such a mechanism would give publishers the reassurance that they require to more readily give permission for the release of their material in machine readable form, or for the digitisation by clients of print material that they own.

An ECMS can address these issues. One type is software incorporated into word processing, computer typesetting, and DTP softwares, as well as Document Image Processing equipment. This type of ECMS would automatically tag the document in a tamper proof fashion. This could be read by anyone to identify the original author and/or copyright owner of the material, and to identify who had made any amendments to the document. An audit trail would thus be clearly identified. Another type of ECMS is software used solely to govern or control distribution of the work, which may be in printed or electronic form. This can be used to limit what can be done with the original or a copy of the file containing the work. It can limit the use of the file to view only. It can also limit the number of times the work can be retrieved, opened, duplicated or printed.

Such systems will serve the functions of tracking and monitoring uses of copyrighted works as well as licensing of rights and indicating attribution, creation and ownership interests. Such measures must not only effectively protect the owner's interests in the works but also do not unduly burden use of the work by readers or compromise their privacy.

The systems will also provide copyright management information to inform the user about authorship, copyright ownership, date of creation or last modification, and terms and conditions of authorised uses. Once information such as this is affiliated with a particular work, users will be able to easily address questions over licensing and use of the work.

No well established Electronic Copyright Management System currently exists. There are various independent moves, many by Governments, around the world to develop a globally unique identification system for all types of data. At this stage, it is not clear whether software houses will develop de facto standards before international bodies agree formal standards.

ECMS and the law

British law currently takes no note of ECMS. Indeed, no country's law at present notes the existence of such systems. However, ECMS will almost certainly soon have the backing of the law in the USA. The USA's National Information Infrastructure's Task Force on Intellectual Property published its White Paper in September 1995. This White Paper focused on changes in the US copyright law needed in the networked environment. To quote from their Report:
"The Working Group recommends that the Copyright Act be amended to include a provision to prohibit the importation, manufacture or distribution of any device, product or component incorporated into a device or product, or the provision of any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without authority of the copyright owner or the law, any process, treatment, mechanism or system which prevents or inhibits the violation of any of the exclusive rights under [the Copyright Act]."

The Working Group also stated:
"The Working Group recommends that the Copyright Act be amended to prohibit the provision, distribution or importation for distribution of copyright management information known to be false and the unauthorized removal or alteration of copyright management information. ....The proposal prohibits the falsification, alteration or removal of any copyright management information -- not just that which is included in or digitally linked to the copyrighted work."

The Working Party Report was followed by Bills to US Congress in October 1995. At the moment, they are at an early stage of their legislative process. The Bill is controversial, not because of the material in it on ECMS, but because of proposed changes to "Fair Use" - the US equivalent of our "Fair Dealing" - and the introduction of a new "transmission right" for copyright owners; so it is unclear if it will become law.

Discussions are developing in the European Union, too, following the publication of the Green Paper Copyright and Related Rights in an information Society in July 1995. This discussion paper was enthusiastic about the possibilities for ECMS in helping to control the problems of copyright infringement. it posed the question as to whether such ECMS should be given explicit legal protection, as is proposed in the USA. Responses by user communities to the Green Paper have been cautious; warnings have been given that ECMS will not solve all problems; they will put barriers, both financial and in terms of user unfriendly systems with hurdles to overcome before someone can access information, for users; and the track record of similar devices (copy protected software, dongles, etc.) the PC software industry shows that users will boycott products of this type. The responses have also strongly argued the privacy problems raised by ECMS - see below. It is not clear whether the European Commission intends to issue a Directive on this topic and it will be no doubt some time before it makes any decisions on this issue.

Legal problems raised by ECMS

There is no question that the development of ECMS poses many problems. For example, there is little point in developing an ECMS that is impractical to use, because of too complex a password or charging mechanism, or one that is so expensive that people are tempted to by pass it or ignore it. However, what I want to consider here are the legal problems created by ECMS. In my view, there are four major issues raised.
The first is: should ECMS be protected in UK/EC law like the US Bill? My own view is "yes", they should be, but that to balance users' interests other changes to the law should be introduced at the same time.
The second is: should "fair dealing" and the library provisions be amended to take into account ECMS? Or if they are not amended, what requirements should be built into ECMS to ensure these provisions are protected? My view is that the concept of "fair dealing' is already under threat in the electronic environment. Rights owners are flexing their muscles and are pressurising governments to amend the law to, for example, introduce a "transmission right" that could override "fair dealing" in the networked environment. I have no doubt this pressure will increase. Some librarians are arguing that in practice, "fair dealing' cannot last in a networked future ad so we should make the best of the situation by accepting the loss of this right and in return getting publishing to agree that they can circulate copies to users for an agreed modest fee - a standard site license in other words. My own belief is that for ethical and philosophical reasons concerning equity of information dissemination, "fair dealing" should not be given up, and instead users should be arguing for legislation to ensure that no ECMS device can restrict someone's rights to fair deal.
The third is: should ECMS be obliged to include facilities to protect Moral Rights, e.g., to ensure an author's name can never be deleted from a text, or amended? I believe that this should be a legal requirement, but can see no way that a software can detect "derogatory treatment", however.
The final issue is: what are the implications of ECMS for data protection legislation? UK Data Protection law currently provides virtually no protection for the individual in respect of data collected by an ECMS, other than the right to inspect the data collected and correct inaccuracies; the new EC Directive, which will come into effect in the UK in stages from 1998 onwards, provides greater protection; in particular, collection of personal data, such as reading habits of an individual, will only be permitted if the ECMS controller can demonstrate that such collection is necessary for its legitimate interests and it does not over ride the individual's right to privacy. Under the new Directive, too, the ECMS controller is obliged to inform individuals who has received information about them. I do not believe there is any need to change the law further on this, as I believe a Court would argue that yes, indeed, someone's reading habits is part of his/her right to privacy, and so an ECMS would be unable to collect such information without the individual's express written consent.

Conclusions

Clearly, significant legal issues must be addressed before ECMS become well established. There is just enough time; as has been noted, ECMS are just in the R&D stage at present. Clearly, publishers will enter into site licensing, electrocopying and other agreements with far more enthusiasm if they could be assured that their copyright interests will be protected by a robust, widely acceptable, well-established tagging and audit system. ECMS offers a possible solution to this desirable goal, but the legal issues do need to be addressed now.

Response

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March 22nd 1996 - Comments can be emailed to Ariadne