Rights in the Copyright System

In this paper I start with a review of some of the rights applied to intellectual property under the copyright regime and an analysis of when these rights take effect. I then highlight the the difficulties facing copyright by the intrinsic nature of the digital environment to make copies of a work as it transits the digital landscape. Finally, I discuss how, by treating 'rights' as the commodity rather than individual copies, the Distributed Intellectual Property Rights (DIPR) system might reintroduce the balance between the free flow of creative work and incentives for the author without the need for restrictive access controls.

Copyright

The Rights

A bundle of rights applied to creative intellectual property, such as:

1. - To reproduce the work in copies

2. - To prepare derivative works

3. - To distribute copies of the work to the public by sale or other transfer

4. - To perform the work publicly

5. - To display the copyrighted work publicly

6. - Right of attribution

Of course, there are limitations to some of these rights such the 'first sale' and 'fair use' doctrines.

Who owns these rights?

• Only the author or those deriving their rights through the author.

• The employer, not the author, in 'works made for hire'.

• More than one author can be co-owners of the copyright for a joint work.

• Any or all of the copyright owner's exclusive rights or any subdivision of those rights may be transferred to another.

Collective Rights

As a general rule – A collective or group of people can be a legal person capable of owning rights.

Sir John Salmond's dictum that:

'A legal person is any subject matter to which the law attributes a merely legal or fictitious personality. The extension, for good and sufficient reasons, of the conception of personality beyond the limits of fact - this recognition of persons who are not men - is one of the most noteworthy feats of the legal imagination.'

Copyright already allows collective or group ownership of copyrights.

Division of Rights

As a general rule - Property can be 'stratified' in such a way that different right holders can have rights over different 'strata'.

On the theory that 'property' is a 'bundle of rights' (and copyright appears to fit this theory) I believe it is established that different rights from the 'bundle' can be held by different entities.

Common Rights

By this I mean – Natural rights common to each individual. Rights such as free speech.

In the case of one individual recounting a story to another, both individuals are exercising their common rights, one to tell the story the other to listen to it.

Someone reading a book is exercising their common right of transferring the intellectual content of the book to their mind. Copyright does not regulate reading because it does not involve reproducing any tangible copy. The reader is not obliged to read the title page and so even the authors 'right of attribution' only applies to tangible copies.

You can conclude from the above that both the author and the 'someone' reading the book have the common right to hold the intangible content in their minds.

When are Rights Exercised (a schematic point of view)

Symbols used:

	Intangible intellectual content in the mind of an individual for instance.
	Tangible copy of an intellectual work.
	Transmission of intellectual content. Rights are exercised at the points of initiation and termination of the transmission.

The analogue world:

Transmission of unregulated intellectual content from one individual to another takes the form of the author exercising his or her common right of free speech while the consumer exercises his or her right to listen:

Transmission of intellectual content via the tangible medium of a book follows the process shown below:

Reproduction of tangible copies is regulated by the author's copyright and the subsequent sale or transfer of these copies to the public is also the author's privilege:

Under the 'first sale' rule, trading of tangible copies after the author has sold or otherwise transferred a copy to another individual is outside the author's copyright control:

Public performances do not involve tangible copying but the author's copyright constrains the entity performing the work:

As for the public performance, the analogue broadcasting of an intellectual work does not involve the reproduction of the work in copies but the broadcast still requires reimbursement of the rights holder.

The digital world:

If the author wishes to distribute copies of their work via a digital environment, such as the Internet, it immediately introduces a complication; the transfer of 'the copy' involves multiple copying operations and possibly the existence of multiple copies at any one time.

The Digital Complication

The authors sole right to reproduce the work in a digital environment, where multiple copies come and go, makes no sense unless she controls (owns) the whole digital environment. Under the current circumstances copyright holders and consumers have three ways of dealing with this complication:

1. The rights holder issues one copy and the consumer relies on the extension of the 'fair use' dispensation to allow him or her to make as many copies as necessary to facilitate their access to the content. This can work but I believe it produces an unsatisfactory situation for many reasons:

• It stretches 'fair use' doctrine beyond all recognition. The copyright limitation allowing reproduction of a small portion of the work, as a quotation for example, becomes untold numbers of wholesale copies and this process of making copies may need to be repeated throughout the consumers period of ownership.

• Who is responsible for operational copies that get left on the computer systems involved.

• What happens to the 'first sale' rule?

• The consumer appears to be in a weak position if they have to justify their copying activities.

2. The rights holder issues a copyrighted copy and also obliges the consumer to enter into a contract or licence agreement which specifies the consumers use of the product. Effectively, the rights holder maintains legal control over the copy they sold to the consumer. Where does this leave the consumer and his or her rights? Apply iTunes works on this formula.

3. Digital Rights Management (DRM) is applied to the problem. Technical controls are used to control the consumers use of the work. Again, where does this leave the consumer? With the added complication that this technological control can infringe the consumer's privacy.

   2. and 3. can result in the schematic representation of rights as shown below:

The Distributed Intellectual Property Rights (DIPR) Solution

Under the DIPR scheme the consumer purchases a reproduction right not a copy.

The rights transfer is established by the exchange of two unique identifiers. This process and the rest of the DIPR system is described on the Common Rights Web site.

As intellectual property is the perfect 'public good', truly non-rival, I see no problem with this transfer of a reproduction right to an identified manifestation of an intellectual work. It can be thought of in two ways:

1. Collective Rights - The author and a (purchasing) consumer become co-owners in the reproduction right of that unique manifestation. Co-ownership is registered by the 'rights offices' in the DIPR system. Or,

2. Division of Rights - The intellectual product is 'stratified' by the allocation of the numerous unique identifications and paying customers obtain rights over individual 'strata'.

Lawyers, it appears, are not enthusiastic about two individuals owning rights to a single item of property therefore, maybe, the second option is the preferable way of dealing with the transfer of rights. In this case a new author's right could be defined; a 'symbolic' or 'subrogation' right where the author has the additional exclusive right to issue unique identifiers that represent a manifestation of the creative work. The unique identifier issued to a consumer, in turn, can substitute this consumer as the holder of certain rights to the work.

How might the DIPR solution change the copyright landscape?

1. - To reproduce the work in copies

   Initially this right rests with the author when they first create an original work. Any subsequent transfer of a 'copy' of the work combined with the issue a new identifier, under the DIPR system, results in the transfer of a reproduction right for that unique manifestation of the work.

   Result – This strengthens the position of the consumer.

2. - To prepare derivative works

   This right rests with the author, however, since the DIPR environment establishes a system of 'transferring' rights the right to make derivative works could selectively be allocated to consumers. Any other right of the author can also be transferred but the consumer can not further share or pass-on the rights they 'co-own' with the author without the author's consent.

   Result – Neutral

3. - To distribute copies of the work to the public by sale or other transfer

   The right to distribute copies does not pass to the consumer with the transfer of the reproduction right. Under the DIPR proposal there needs to be a very firm distinction between commercial and non-commercial. The commercial rights rest with the author unless, of course, she chooses to pass these on.

   Under the DIPR system the 'first sale' rule ceases to exist – the transfer of reproduction rights conveys no transfer or commercial rights (identification rights) what-so-ever.

   Result – strengthens the author's position.

4. - To perform the work publicly

   No change from rights point of view but see broadcast below.

5. - To display the copyrighted work publicly

   No change

6. - Right of attribution

   Every copy or manifestation is attributed to the author through the author's persistent identifier. Even if she transfers all her exclusive rights to another entity the original manifestations will still be attributed to the author.

   Result – strengthens the author's position.

7. - Right to issue identified manifestations

   A new right to ensure that only the author, or those deriving the right through the author, can issue identified works into the DIPR environment.

   Result – strengthens the author's position.

This analysis can continue to other areas of intellectual property and the distribution on intellectual works. Some further analysis is covered on the DIPR web site. Adopting the DIPR system introduces many interesting possibilities for new distribution and business models but one area of special interest for this rights discussion is broadcast

.

Digital Broadcasting

When a work is broadcast in the analogue world the rights holder is exercising his or her commercial rights; no transfers of copies is involved, ignoring home recording for the moment. The audience pays the broadcaster, somehow (subscription, via advertising), to receive the content and the broadcaster pays the composer either directly or through a collecting society.

Digital broadcasting changes the situation in the same way that the digital environment has changed the transfer of copies. Take web-casting or streaming over the Internet where multiple copies are involved rather than one continuous analogue transmission. I propose that 'broadcasts' under the DIPR system will become another reproduction right – the broadcaster triggers off multiple copies. The DIPR environment has two options for identifying the broadcast content:

1. Both identifiers of the broadcast copy are allocated to the author or broadcast right holder and therefore any broadcast copy can only legally pass though the digital system to its intended destination. Any further copying is not authorised.

2. Each broadcast copy can have a unique customer identification. In this case the customer can keep a copy under the limited reproduction conditions that are defined for any other copy in the system.

Conclusion

In this paper I have simplified the analysis by limiting the rights considered to a single author rather than multiple entities such as composers, recording artists, and others who might hold rights. I have done this to show the principle and the need for transferring rights rather than copies in digital environments. I have also suggested how the sub-division and co-owning of property rights is already established and that there is no reason why this principle should not be applied to intellectual property for wide scale rights ownership.

One of the major advantages of the DIPR system is that the rights management of intellectual property, from the technical point of view, can be limited to the 'rights office' structure on the Internet. This is much more feasible and less intrusive than trying to control digital copies of creative works throughout the supply chain and consumer media environment.