Intellectual Property in Digital

Before end users can enjoy digital media a lot of entities have a say in the intellectual property associated with them. Everybody is struggling with making the best of digital media, mostly without success. This paper analyses what went wrong with digital technologies applied to media and presents the balanced solution developed by the Digital Media Project (DMP).

The relatively fixed forms of communication that we think of as media have played important roles in every society. Great artistic accomplishments have long been used by social groups to define themselves, such as Virgil's "Aeneid" or Shakespeare's historical plays, and the performance of beloved musical compositions is often identified with a culture's festive days and happiest times. Sharing the experience of media together is a fundamental part of our common lifestyle.

While we may all be end-users of media at certain times and places, some people are other kinds of users too. As with many good things in life, money comes into this as well, although many more people try to use media to make money than succeed. There are a variety of reasons why a creator makes an original work, although some regard for how it will be received by its audience of end-users is often an important consideration. Depending on a society's rules or laws, different rights attach to these two extremes of use, as well as to other users that often become involved in bringing a work to its ultimate consumers. Producers, publishers and editors are often involved, with expertise in subjecting a work to finishing touches and promoting it. Together with the creators, such publishers or producers can be considered the rights holders for that particular work, often seeking money or the kind of attention that has led to the show business saying: "Make sure they spell your name right in the credits." Another kind of media user is the intermediary that helps present or distribute finished works to the public, for example the owner of the Leipzig coffee shop where Johann Sebastian Bach presented many of his compositions, or the owner of a radio broadcast station. These value chains connecting rights holders, intermediaries and end-users are the social and economic framework by which media come to exist and to be enjoyed by the public.

Whether looking at human society as a whole, or the public authorities of our nations, or even smaller groups such as families or towns, whether a long time ago or today, one may ask who makes the rules and why? This has not always been a safe question to ask, for example when the answer was: "The king, you idiot!" In our modern world we are used to speaking up, but when the topic is the rights for different users of media, there are many rules and they can be confusing. One established pattern protects the financial interests of rights holders, but looking closely this pattern changes from nation to nation and over time, and can be different depending on the type of technology that carries the media. For today's digital media, we seek to understand how to make good rules, that can themselves be carried by the technology of chips and programming logic, on computer networks or memory storage. While seeking to protect those who hold intellectual property rights for each media item, consideration should be given to the range of Traditional Rights and Usages (TRUs) we might want our emerging digital technology to be able to carry into the future for us. The Digital Media Project has created technology to make this kind of solution a reality and it is about the problem and the solution that this paper is about

A creator may decide to make media for a variety of reasons. Many of these are targeted to make the creation (technically called a “work”) available to some end-users who may have an interest in making use of it. Typically some entrepreneurs are required to convert a work into a final product or to promote awareness with end users of the existence and perceived value of the work or to act as intermediaries between creation/production at one place/time and acquisition/consumption at another place/time.

Typically entrepreneurs operate in a network whose ultimate goal is to connect the two extremes: creator and end user. The more society becomes sophisticated and the more sophisticated become the technologies employed. In the following we will call

Although value chains can be considered at an abstract level, their practical implementations are manifold because they depend on the type of content and the nature of means used to handle it.

The process of creation does not happen in a vacuum but is the result of one or more individuals operating within a society. The same can be said of other users: producers/publishers and intermediaries operate in a society

Each of the four categories of users – creators, producers/publishers, intermediaries and end users – has rights. Foremost are the rights of creators, as they are the ones who kick off the process, but there are rights belonging to producers/publishers, other intermediaries and end users.

It is the task of society to determine the nature and extent of users’ rights through laws and customs, but even in the same society rights change with time, space, political environment, technology, value chains and others. Because of this intertwined network of rights it is fair to say that, with the exception of very few basic rights, no user could claim to have absolute rights on any content item.

Technology is the main driver of change of value chains as can be seen from the changes effected by the “paper” technologies, the “movable character” technologies, the chemical, electrical, magnetic and electromagnetic technologies, the digital technologies etc. on value chains that existed at one time in history.

We will make a brief analysis of the nature of technologies, the features of value chains and the type of rights common to three generation of technologies: analogue, early digital and current digital technologies.

By “analogue” we mean the ensemble of all “pre-digital” technologies. For a variety of reasons the basic technologies used in that age were “shared”, i.e. usable by all users in the value chains, at least in homogeneous environments such as “printing”, “consumer electronics”, “broadcasting”, “telecommunications” etc. Even though at a slow pace if compared to today’s, new waves of technologies arrived at all times effecting major changes the result of which was the progressive transformation of media from physical to immaterial when the carrier of information changed from stone, to clay tablet, parchment, paper, chemical processes, electric signals, radio waves and magnetic tapes and discs.

The main users’ rights are set in this age, e.g. by the Berne Convention (1988) [1] where some basic rights of creators but also of other users are defined while different legislations define rights that are often dependent on industry type.

As technologies advance, society bows to reality and allows exceptions to some rights as some laws, even if enacted, would be impossible to enforce. In this paper we call Traditional Rights and Usages (TRU) the set of rights, exception and customs that were developed in this period of time [2].

In this section we consider the effect of the first phase of digital technologies. A short list of features of digital technologies is given below:

All value chain users, especially service providers and end-users, are pervasively affected by digital technologies because of the improvement they offer to their processes. Creators/producers are able to make their offers more easily but continue to be unable to access the value chain if not through established intermediaries. The importance of distribution fades and end users see their possibility to access and use content multiplied.

Some entrepreneurs, mostly service providers, have vastly extended the scope of their rights by the sheer fact that technology has enabled such extension. As a result end users have further extended the scope of their rights by the sheer fact that technology has enabled it. The extension and the scope is quite separate from whether this should be done, as society has not made up it mind completely.

It was inevitable that a revolution should be followed by a reaction. Unlike the progressive drift of control that existed in the analogue age – countered by allowing “exceptions” – technologies have been introduced to describe “rights to use bits” and to enable “access to bits” based on rights description. The collection of these technologies is usually called Digital Rights Management (DRM), of which it is opportune to provide a definition, namely: a system of IT components and services which strives to distribute and control content and its rights [3]. The technologies to discriminate access to content are typically called Technological Protection Measures (TPM).

A very important feature of today’s DRM technologies is that they are mostly “proprietarily used” as opposed to “shared” as in the two preceding ages. Patents become the tools to better achieve the goal.

Thanks to these features it becomes possible to create proprietary value chains where rights holders enjoy the “right of diktat” as they can unilaterally establish what can and cannot be done with DRM-ed content. Tampering with DRMs, particularly when they assume the form of TPMs, is now a made a crime in most jurisdictions.

DRM makes the pendulum swing back in favour of rights holders. However, full control of the value chains in the hands of often conservative rights holders is likely to lead to a reduced capability for entrepreneurs to innovate. The end result may be a situation leading to revolution or stagnation or an all-out refusal by end-users to accept such an unbalanced system.

Users’ rights in this second phase of digital technologies see the full assertion of rights holders’ rights while TRUs are easily suppressed, since a new type of law applies – contract law. As a result end-users (and intermediaries as well) may eventually be left with no rights at all.

Still things are not static. New forms of release, such as Creative Commons [4], are being used that overcome the “copyright/public domain” dualism.

Most of what has been said above was either in the form of inputs provided by the authors to or outputs from the Digital Media Manifesto (DMM) [2], a grass-roots movement initiated by the first author in July 2003. In three months, operating on the web, tens of caring individuals, many of which were unknown to each other before, exchanged hundreds of documents.

The DMM analysed the causes of the stalemate and identified interoperable DRM (iDRM) as the way to avoid one arm of the stalemate, i.e. the looting of intellectual property done by some in the first phase of digital technologies. The other arm of the stalemate, i.e. the cancellation of users’ rights under DRM, even if in the form of iDRM, was given the name of “mapping of TRUs to the digital space”. The DMM also recommended the establishment of a body, called Digital Media Project (DMP), to further the goals of the DMM and in particular to develop specifications of iDRM. The Manifesto itself was published in September 2003.

The DMP was established in December 2003 in Geneva as a non-profit organisation [5]. So far two streams of work can be clearly identified in DMP: one conceptual, inspired by the DMM and one technical.

The conceptual stream addresses the issue of what it means to make an iDRM standard. Given the large number of value chains that have developed in the analogue age and the even higher number expected in the digital age, an iDRM standard has no easy equivalent to, say, a broadcasting standard developed by the Digital Video Broadcasting (DVB) [6]. Indeed an iDRM standard should be capable of supporting value chains where different users can play a large variety of roles. The range of rights handled by such value chains could also be very broad moving from, say, a Creative Commons licence to a very restrictive licence where content is highly protected [7].

If it is not possible to develop a “one size fits all” standard, the solution is a “toolkit” iDRM standard where all tools required by business users are standardised and integrated.

The technical stream has given rise to a very intense activity and produced technical specifications of two versions of what the DMP calls Interoperable DRM Platform (IDP), i.e. the integrated collection of tools, as documented by [8]. Further this stream is developing the reference software of the IDP called Chillout® [9], released as Open Source Software (OSS) under Mozilla Public Licence 1.1 (MPL) [10].

By itself the IDP already provides a number of significant advantages. The first is the practical possibility to set up an arbitrary number of value chains using the rich IDP toolkit. The second is the reduced cost of value chain establishment because the technologies required to exercise the IDP specification are available from an ecosystem of technology and solution providers (horizontal markets). It must be mentioned, though, that the operation of such an ecosystem requires the establishment of a governance and conformance testing infrastructure.

The third is the very goal of the specification, i.e. interoperability between users in the value chain (and possibly between value chains), of course if the users wish to communicate. Finally we should mention the fact that the environment created fosters continuous technology innovation, as specifications are minimal and open to extension, and continuous business innovation is possible because of the ease and flexibility of value chain creation for which we expect there will eventually be DIY design tool to build value chains.

All the above is very nice but, in a sense, misses the point because DRM (including iDRM) systems are unbalanced in favour of rights holders and can easily lead to stagnation or rejection. In the positive case where iDRM succeeds the process may be very long and we may not like the end result.

A positive action is required to inject dynamicity into a system that can otherwise just lead to digital media business models (DMBM) that are simple stereotypes of business models that were already worn out in the analogue space.

One way to achieve this goal is to base the rich set of experiences that users of media have collected in what we have called TRUs. Already in the analogue space the status of TRUs was not always clear. Much less so it is in the digital space, but trying to map TRUs to the digital space one may well discover that a DMBM exists whose attractiveness has already been put to test in some form in the analogue world.

Thus Chillout® becomes an ideal tool to experiment with TRU and DMBM support to find out likely successful usages of digital media.

Since its earliest days the DMP engaged in a thorough analysis of a large number of TRUs. The result of this analysis is contained in [11] where 88 TRUs are analysed in detail. Currently DMP is developing a document called “Mapping of TRUs to the digital space” while developing the 3rd version of its IDP specification [12]. The document is actually split in two parts, one that deals with TRUs in a way that can easily be supported as a continuation of TRUs in the digital space and a second part that collects examples of DMBMs, mostly derived from TRUs, that are considered to have a merit per se and not because their origin can be traced back to TRUs and claims can be made that some legal ground exists to map it to the digital space as such.

The table below provides a list of some of TRUs identified by DMP with a short description:

TRU name	TRU definition
Quote	TRU to reproduce limited portions of another author's work, for a variety of reasons, and in a variety of ways
Personal copy	TRU to perform certain acts that pertain to exclusive right of reproduction without requesting prior authorisation
Space shift	TRU to access content wherever the User is
Time shift	TRU to access content whenever the User wants
Publish content anonymously	TRU to publish content without revealing the user’s identity
Use content anonymously	TRU to use content without revealing the author’s identity

One way to support TRU to Quote (as define above) is exemplified by the following use case:

Tim wants to show 10 seconds from time code 1h 15m 25s of “My best quote of the year”, a movie that is only available as protected Content. Tim could perform the following sequence of steps:

Who	Perform	What	Notes	IDP Tool
Tim	Obtain	License	To quote 10 s of “My best quote of the year”	Negotiate License
Tim	Make	DCI	DCI is an XML structure containing Tim’s own Content 10 seconds of “My best quote of the year” The obtained License to Quote Other data	Represent Content
Tim	Make	DCF	DCF is a file containing the DCI	Package Content
Tim	Release	DCF	This can happen in a variety of ways	Out of scope

Using Chillout® it is be possible to set up (a portion of) a value chain corresponding to this particular TRU and experiment with it. Typically this would require:

While there is ground to claim that a TRU to quote only exists for some types of media, usages and countries, for other cases there is no such ground. However, the set up described above built using Chillout® can be very easily expanded to cover DMBSs that would be applicable to, say, self-produced content where the creator wants to retain a higher degree of control than is possible today with most web sites handling such types of video content.

In a world where human mobility is on the increase, the ability to enjoy content independently from the physical location, assuming that the law of a particular location allows the use of such content, is an important requirement. Today it is impractical to monitor where a given CD is used, but with digital technologies it is feasible to apply such tight forms of control that a backlash on the part of end users may easily follow. One way to provide transparence to the end user is provided by the following use case.

Abe, a UK national living in the UK, obtains a license to use a content item in the UK. If Abe attends a conference in Germany, a country not covered by the License he has previously obtained, he could do the following:

Many people like to make and publish their assessment of content that has been published by others. If content is protected this operation may not be easy, but the use case below shows a possible way to achieve the goal.

Miranda buys a license to use a protected content item. After playing it she likes to express her opinion. She uses an application that allows her to link her rating to the content item, its individual resources and fragments of resources, clearly identified by their time code, and posts her ratings as a content item on her blog, so that a visitor who has a license of the same content item and a similar application can see Miranda’s comments while playing the content item.

Demo support of this TRU can be easily implemented using Chillout®. It would also be possible to implement extensions of this example that would probably qualify more as DMBMs that build on this, such as doing business with a rights holder by acquiring a number of licenses to the content being rated or to fragments in order to promote one’s rating and assessments.

Society, in spite of the investments made to make digital technologies, has been caught largely unprepared with the necessary adaptations required to use them with media. The result has been the stalemate identified by the Digital Media Manifesto [2] where rights holders are robbed of their properties, end users cannot safely enjoy digital media and intermediaries have a hard time finding the business opportunities they look for because of too many uncertainties.

The Technical Protection Measure variety of DRM has so far being an elusive mermaid. The implementations made provide benefits in very few cases and generally leave many, particularly the end users – those who foot the bill of the value chain – unhappy. The Digital Media Project [5] has taken the baton from the Digital Media Manifesto and provided an industry agnostic and scalable DRM standard that can at least reduce the most blatant impositions of DRM, such as forcing an end user to buy the same content twice if this is to be used on two different devices and, for intermediaries, the ability to easily set up arbitrary value chains.

The DMP is also developing the reference software as Open Source to accelerate adoption of the standard and to provide a test bed for experimenting how the transition from Traditional Rights and Usages enjoyed in the analogue age can best be mapped to the digital age and for finding the Digital Media Business Models that can not just copy the past but invent the future.

Still the results achieved by the DMP enable interested people to investigate the opportunities offered by digital media when interoperable DRM technologies are available in an open environment using Open Source Software.

The DMP achievements described above are the result of a collective effort that has involved many, both DMP members and non-members. They are all to be thanked for making a vision possible and real.