>> Copyright >> 2001 Town Meeting
Intellectual Property Versus the Digital Environment: Rights Clearance
Complete Paper
By Linda Tadic
SUMMARY:
This paper addresses issues
faced by for-profit corporations and non-profit cultural
institutions as intellectual property users in a digital
environment. Complexities in identifying audiovisual asset
ownership and licensing assets are discussed.
Disclaimer
The comments in this paper are
my own opinions and do not represent the opinions of HBO or AOL
Time Warner, HBOs parent company.
1.
Introduction
My presentation this afternoon
will focus on copyright issues involved in using still images,
audio, video, and text on the internet. These issues apply to
for-profits and non-profits alike. It has been argued that the
internet should be considered a new distribution medium, with
unique laws and licensing requirements distinguished from those
applied to more traditional means of distribution, such as
publishing and broadcasting. Up to now, laws and practices have
tried to fit copyright and the internet into these traditional
constructs. But the internet is different, in that it provides
quality copies of digital works immediately upon transmission.
Users can easily make perfect copies of these digital works with
one click of the mouse. It is being argued that a new
distribution model for the internet is needed.
I will discuss the current
process for securing clearances for audiovisual materials on the
internet, and leave it to other speakers to discuss the potential
future. For-profit corporations and non-profit cultural
institutions face many of the same issues in needing to identify
intellectual property owners and to secure permissions or
licensing agreements before placing audiovisual properties owned
by others on web sites. If the use does not fall under
the fair use provision, then permissions must be secured.
I will not discuss fair use or public domain works, leaving those
topics to other speakers to address.
2.
Definitions
Lets first start with some
definitions.
a. Asset ownership
Id like to use business
language and use the term asset. An asset is a
work/object in tangible form that can be owned and exploited by:
- Society and culture (public
domain works)
- Creator (individual or a
group of individuals; e.g. writer, composer, artist,
etc.)
- Corporation/organization
(includes licensing agreements)
- Government (can own rights
to cultural landmarks, e.g. in France)
The US Copyright Code gives a
copyright owner the exclusive right to reproduce, distribute,
perform, display, or license his/her work (or asset). The owner
also receives the exclusive right to produce or license
derivatives of his or her work.
Putting assets or derivatives of assets on a website or on the
internet is in effect reproducing, distributing, performing (if
audio or video), and displaying the works.
Before an individual or organization decides to reproduce a work
or asset, it needs to be determined who
owns the asset.
There are three other considerations related to copyright and
licensing issues that will appear throughout my discussion. I
will refer to these from time to time:
b. Unpublished works (ties in with first right of
publication). Most organizations and individuals recognize that
rights clearances need to be considered for published works.
However, some believe that if a work wasnt published, it is
therefore not copyrighted and there can be no infringement if it
is used. But dont think youre safe using an
unpublished work such as correspondence that you find in your
collections. The Supreme Court Salinger v Random House (1987)
decision says that writers (and by extension, any creator of a
work that has been put into tangible form) have first right to
publish their work. They might never have intended for their work
to ever see the public eye, or they might choose to never publish
the work, but the creator still has the first right to publish.
c. Asset in 3rd partys collection. If your
archive/library was donated a collection and the donor assigned
all rights to your organization, you do not have the rights to
display or publish works created by a 3rd party that could be
included in the donors collection. Third-party works
commonly include correspondence and artwork. You will need to
obtain rights to use that 3rd partys work. This ties in
again to the Salinger case; JD Salingers letters were
included in collections donated by his correspondents to several
educational institutions. He successfully sued to stop their
inclusion in a biography of him.
d. Rights to privacy and publicity. Throughout my
presentation, I will also touch on rights to privacy and
publicity, which in the internet environment are becoming
increasingly linked to copyright concerns.
3. Identifying Who Owns An
Asset
a. Introduction
Who could own an asset, and how
do you find the owner?
Determining who owns an
audiovisual or multimedia asset can be complex.
Multimedia asset types:
- Still images (art, photos)
- Audio (music and spoken
word)
- Moving images (film and
video)
- Web sites (can contain
text)
Possible owners of assets:
b. Still Images
- Photographer (NOT
work-for-hire)
- Artist
- Publisher (if book cover)
- Person represented in image
(rights to privacy/publicity)
- Company owning photo
(Corbis, Getty Images)
- Company with rights to
license digital reproductions (ex.: Corbis and Ansel
Adams photos)
Licensing still images
Once you have identified who
could own the right to digitally reproduce a still image, you
need to license it.
- Artist/ photographer. Some
artists or their estates take care of their own
permissions and licensing. You would need to contact them
directly.
- Licensing for images of art
and photography: Some artists use licensing agencies or
clearinghouses to license the use of art/photos in
publications and for digital reproduction. (e.g., The
Artists Rights Society represents over 40,000 artists and
photographer, and have database online.
- Digital rights licensing.
Some artists or estates use companies who are only
responsible for licensing digital reproductions. For
example, the Ansel Adams Foundation must be contacted for
reproducing an Adams photograph in print, but Corbis has
the digital reproduction rights.
- Using image of
actor/talent. Lets say youd like to add value
to your website by using a photo of a well-known actor or
actress, or character. Talent can own rights to publicity
and their likeness, voice, and name. In California, their
estate can control these rights posthumously. The feeling
is that the talents likeness is a marketable
attribute, and they should be able to control its
display. For-profits negotiate complex contracts with
talent, agencies, and distributors providing specific
parity, credit, and usage restrictions when a
talents image is used. Can non-profits use the
talents image without permission, even if the
non-profit is not making money off its use? This could
depend on the context of the use, but if the image is
downloadable, and the talent doesnt want their
image available for mass reproduction, they could ask
that the image be removed from the website. The right to
privacy is available not just to actors/actresses or
public figures, but also to individuals.
Using still image without
obtaining clearance
Some organizations might think
that they neednt obtain clearances before using an image on
a website.
- Copyright notice
For example, a non-profit might believe that placing a
copyright notice on or by an image will satisfy copyright
concerns. But if the clearance was not obtained, the
copyright notice means nothing. Also, a copyright notice
near an image rather than embedded in the image can
always be stripped from the digital image. The Digital
Millennium Copyright Act bars removing the copyright
management information from an asset without authority,
as well as disseminating copies where the copyright
management information has been removed. In Kelly v
Arriba, the District Court for the Central District of CA
found that Arribas (now Ditto.com) using a crawler
to retrieve Leslie Kellys photographs off his
personal site without Kellys copyright notice
attached was NOT a violation of the DMCA, since the
copyright statement was not embedded in the image itself
but rather was located elsewhere on Kellys site.
Kelly appealed the decision, and the appeal was heard on
Sept. 10, by the 9th Circuit Court of Appeals-- the same
court that ruled on the Napster appeal.
- Thumbnails
Citing the Kelly v. Arriba case (in which Arriba's search engine returned photographs by Leslie Kelly), Tadic said that re-using
thumbnail images had been ruled as fair use (as the quality was below
acceptable commercial use). (This case was upheld on appeal; see netcopyrightlaw.com/pdf/0055521.pdf.)
- On-site use only
Some cultural institutions are providing digital copies
or surrogates of copyrighted items in their collections
only on-site, on computers with the organizations
IP address. This is allowed under the copyright law in
Section 108, where digital copying is allowed for
purposes of preservation, scholarship, and research, if:
- The copy is made
without any purpose of commercial advantage;
- The collection is
open to the public, and open to researchers;
- The reproduction
includes a notice of copyright;
- The copy is not
made available to the public outside the premises
of the library or archives.
- No reproduction is
allowed if:
- The
copyrighted work is subject to normal
commercial exploitation; or
- A copy of
the work can be obtained at a reasonable
price
Marketing web sites
Some companies, especially film studios, encourage downloading
authorized images from their marketing web sites for use in
creating fan web sites, screensavers, e-cards, etc. Its
considered a marketing tool. Harry Potter website at Warner Bros.
site: register your fan website. However, note that: (1) the
company has decided what images are authorized for downloading;
(2) the consumer is not allowed to use the downloaded image to
sell products.
c. AUDIO
- Producer
- Production
Company/Performer(s)
- Composer
- Recording label
- Distributors (licensed in
various markets)
- Interviewee (rights to
privacy/publicity)
To use a piece of published
recorded music on the the internet, you must obtain composition
rights (for public performance of the composition itself);
recording rights (for the recorded work); and reproduction and
distribution rights (for both the composition and the recorded
work).
Composition rights (public
performance of the composition). Licensing organizations such as
ASCAP and BMI act as clearinghouses for licensing composition
rights. They represent the publisher or administrator of the
piece of written music. Both organizations have special rates for
webcasting or internet use.
Recording rights (public
performance of the recorded music). The recording label owns the
specific recording of the piece of music. Its a common
practice that the rights revert to the performer 35 years after
the recordings release. Must obtain permissions from labels
directly.
Reproduction and distribution
rights. Internet transmissions are considered to involve
reproduction and distribution, which are separate from public
performance and involve two steps. Reproduction occurs in
downloading the music to a hard drive or server; distribution
occurs by making the music widely available over the internet.
Again, ASCAP is only concerned with public performance of a
composition. Reproduction and distribution rights for the
composition are represented by the
National Music Publishers Association and are licensed through the Harry Fox
Agency, a clearinghouse for reproduction and distribution.
Reproduction and distribution rights for the recording are again
owned by the label.
Lets consider some examples to help
illustrate these various rights.
Example One: You want to use
Aretha Franklins version of the Beatles Eleanor
Rigbyon your web site. You go to the ASCAP database on the
internet. You see that the Publisher/Administrator of the song
Eleanor Rigby is Sony/ATV, which owns the composition
right. You pay the minimum $264 a year licensing agreement for
using ASCAP licensed works on the internet. Again, this licensing
agreement covers public performance of the
composition ONLY. You then go to the Harry Fox Agency and license
reproduction and distribution rights to download and distribute
the composition over the internet. You still need to obtain
licensing from the recording label (Arista), which owns the
rights to the recording itself. From Arista, you obtain licensing
for public performance of the recording, AND reproduction and
distribution rights. These are the rights that must be obtained
before using the tune on your website. The clearinghouses make it
easy for youthey have databases and license applications on
their web sites, so its not as complex as it might appear.
Example Two: But perhaps you decide that getting clearance to
include Aretha on your website is too much of a headache, so
youll use music that is in the public domain. You select a
recording of Mozarts String Quartet KV 387, performed by
the Emerson String Quartet. Now while the quartet is certainly
not on ASCAPs list of protected compositions, you would
still need to secure rights for the recording from Deutsche
Grammophon.
Example Three: OK, lets forget the Mozart and look at the
folk music field tapes in your collection. The tapes were
recorded by a professor at your university, and he assigned all
rights to the university. Sounds safe and clear. Thats fine
as far as his rights are concerned, but you will still need to
obtain signed agreements from the performers permitting public
performance, reproduction and distribution of their performances,
if a contract allowing this wasnt done at the time of
recording. While the recordings could have been originally made
with no intent at the time to publish them, the
performers could still have first right to publication.
(unpublished works)
In sum, the three kinds of rights that must be acquired to use a
recording on the internet are:
- Composition rights
(composer/publisher of music)
- Recording rights
(distributor/recording company; performer if unpublished;
commonly the performer owns if over 35 years after
release)
- Reproduction and
distribution rights (for composition AND recording )
These are the issues that the
record labels are facing as they develop subscription-based sites
for downloading music in the wake of Napster. An internet music
start-up developed by FullAudio made news this past summer with
an announcement that it had signed a deal for recording rights
from EMI Recorded Music, and licensed the composition rights for
these recordings from EMI Music Publishing and BMG Music
Publishing. The labels themselves are joining forces to create
subscription-based digital music distribution services that are
supposed to go live in the fall: Pressplay (Sony and the
Universal Music Group), and MusicNet (BMG, EMI, AOL Time Warner,
and RealNetworks). It was announced last week that the Big Five
labels had reached an agreement with the music publishers that
would allow the two subscription services to license reproduction
and distribution rights of the compositions.
Just as for-profits take rights management very seriously,
non-profits should as well. Once a museum, library, or archive
includes an asset owned by others on their web sites, they have
stepped into the same realm that the for-profit community lives
in. A non-profit could argue that its use of copyrighted assets
is fair use and should be protected.
In brief: fair use of a work is decided by four factors:
- the purpose and character
of the use (commercial nature or non-profit 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;
- the effect of the use upon
the potential market for or value of the copyrighted
work.
If a non-profit includes assets
owned by others on its site, it could be argued that the use of
that asset is impacting the assets market value. Users can
download the image or audio file from the site, rather than
purchasing a copy of the work, which deprives the asset owner
from the right to exploit the work. Why is this being taken
seriously by the music industry? Jupiter Media Metrix estimates
that single paid downloads currently represent $25 million in
sales.
d. FILM/VIDEO
- Producer
- Production Company
- Performer(s)
- Composer
- Distributors (of various
markets)
- Interviewee (rights of
privacy/publicity)
- Actors
- Screenwriter
- Director
- Location
For-profits have been struggling
with the issue of controlling audio over the internet for some
years now. Streaming video on the internet is just now beginning
to become an intellectual property rights issue. The large size
of digital video files made it prohibitive for most
organizationsnon-profit and for-profit aliketo
distribute video on the internet. Digital video files can take
too much server space on the supply end, and can take a long time
to download on the receiving side. A feature film can be 500 MB
in digitized form, and take 20 to 40 minutes to download on a
broadband connection. However, with the growth of faster
broadband access, it is certain that video on the internet will
increase in the next few years as bandwidth capability increases.
Analysts at PricewaterhouseCoopers estimate that 8.2 million of
the 54.3 home internet users will have broadband (DSL or cable
modem access) by the end of 2001.
For-profits view the internet as
another means of distribution. As I mentioned in my introduction,
traditional distribution venues include broadcasting (radio,
television, cable) and physical sales and rentals (music CDs, VHS
tapes, DVDs). Following the precedent of online music
subscription services, the major film studios have created two
joint ventures that will offer subscription rental
copies of movies over the internet. One venture called Movies.com
was formed by the Walt Disney Company and the News Corporation
(Fox). Another venture, as yet unnamed, was formed by five
studiosSony Pictures, Warner Bros., MGM, Paramount
Pictures, Universal Pictures. This service will use a content
protection system called Digital Transmission Content Protection,
which will embed IPR information into the file; allow the
downloaded file to be played an authorized number of times;
authorize whether it can be copied, or block copying completely;
and will self-destruct 24 hours after first play. If copying was
allowed, content owners could then scan web sites and computer
hard drives to find unauthorized use of the downloaded file,
similar to how digital still images can be found on the internet.
Ill discuss content protection for all asset types in a
moment.
Few non-profits can afford to
put much more than short clips of streaming digital video on the
internet, and those are usually QuickTime movies (small box,
jerky image). The Library of Congress American
Memory project has digitized dozens of films that are
firmly in the public domain. These video files are available for
streaming playback in QuickTime; some are also available as MEG
files. The Internet Archive, which you will hear Jane White
discuss, also has educational, public domain films available for
download at: www.moviearchive.org OR
http://www.archive.org/movies/ These are stored in MPEG2 and
MPEG4, and need to be downloaded to view rather than view as
streaming video.
Who owns?
Determining who owns rights to a
film or video can be a moving target as rights are frequently
sold. Even if you carefully note the copyright credit on your
videotape of a film or television program recorded off-air ten
years ago and decide to pursue that company to obtain rights,
that company could have sold the rights to another company last
year. You would also need to investigate whether any rights need
to be cleared that could be held by the actors, producers,
writers, performers, guilds, or music. To my knowledge, there are
no clearinghouses for film/video as there are for music and art,
so research to identify the various rightsholders can be
intensive.
The first place to research film
and video copyrights is the Copyright database at the Library of
Congress: www.copyright.gov. This database lists claimants and
copyright ownership to works created AFTER 1978. To search before
1978, one must search in the Library of Congress online catalog,
LOCIS, or in the published lists. However, remember that rights
could have been sold after the initial copyright claim was filed.
There are also copyright
services that conduct title searches.
Rights of the
licensor/distributor
Distribution rights can vary by
market. Different companies can own the national, international,
cable, and internet distribution rights to a film or program. The
definition of internet rights becomes trickyis it
international distribution, since the internet crosses borders?
Or, does the internet not fit in the definition of traditional
distribution media like television, cable, and radio? Is a new
distribution model needed?
For example: If a television or
cable channel decides to broadcast streaming video through a
broadband service, or offer video-on-demand through its website,
its cable carrier or MSO (multiple system operator) could
possibly claim that this alternate access is infringing on their
business. This very situation occurred when ESPN withdrew its
ESPNews from being carried by Charter Communications. ESPN wanted
to stream video content over the internet; Charter felt that this
infringed on their contract to carry ESPNews. The National
Association of Broadcasters (NAB) then joined the fray by saying
that Charter cant force exclusive rights; a channel can
sign separate agreements to be carried by multiple MSOs, as well
as have internet distribution. You might wonder why a non-profit
organization should care about what happened between ESPN and
Charter, but consider: if your non-profit places on the internet
an episode of or clip from a TV show or film, it is essentially
giving that clip international distribution. You need to research
not only the rights holder of the film or program, but also who
might have licensed the rights to international or internet
distribution of that program.
The issue of whether the
internet constitutes another market or is an
extension of performance rights already acquired has also been
experienced in the online radio community. Hundreds of radio
stations across the country broadcast simultaneously over the air
and on the internet; hundreds broadcast ONLY on the internet. The
Recording Industry Association of America (RIAA) claimed that the
radio stations who both broadcast and simultaneously webcast
should pay record companies an additional 15% over what they
already pay for broadcasting performance rights (remember the
areas of rights mentioned in the audio section). To them,
webcasts constitute a second run. Actors in commercials also
claimed that they should receive additional payments when their
radio spots are played on the web. The stations asserted that
they already pay fees to broadcast the music, and these fees
should apply to ALL broadcasts, no matter how transmitted. And
with ad revenues down, they cant afford to pay the
additional fees. Internet-only Webcasters sided against their
dual broadcast-internet brothers and sisters, saying that since
they paid internet royalties as required, relieving the dual
broadcasters from paying internet royalties would give the radio
stations an unfair financial advantage. The US Copyright Office
decided that according to current law, the radio stations should
also pay internet royalties, and the US District Court in
Philadelphia upheld that decision. An arbitration panel is
deciding what should be the webcasting royalties on top of the
broadcasting fees.
Lets switch gears and
consider how the rights to privacy and publicity come into play
with moving images and audio on the internet. Rights to privacy
and publicity can affect a non-profits use of home movies,
oral histories, etc. Example: A donor could give rights to use
his/her familys home movies in an exhibition/web site, but
the organization must then obtain clearances from other members
of the family who are represented in the footage. These are
private images that when they were created were not intended for
public viewing. While no money is exchanging hands in the use of
this material, permissions should be obtained before exhibiting
or publicly performing what were originally private works.
e. Web Sites
- All of the above
- Author (if unpublished
text)
- Translator (original work
could be in PD, but translator owns rights to his/her
translation)
- Publisher (if text)
These are the main multimedia
asset types. Ive discussed who can own the assets, and
considerations in licensing. Now lets briefly touch on
digital rights management.
4. DIGITAL
RIGHTS MANAGEMENT
As assets become distributed
over the internet, owners and distributors want to control,
track, and protect their use. Content protection has become a key
areacontent owners dont want to have their assets
copied for free when they have the right to exploit their
property. They want to control the usage of their assets. And if
youre a non-profit that gained clearances to use an asset
owned by another entity, you might want to protect that asset
too, so that you cant be held liable later if someone
downloaded that asset without authorization and then re-purposed
it illegally.
Digital rights management
consists of these primary concepts:
- Tracking who created the
asset
- Who owns the rights to
control usage
- Content protection
There are many digital rights management
systems in place, and many in development. Some only provide a
means to track rights information, some focus on content
protection, some do both. My mentioning these products does not
constitute an endorsement of them; they are mentioned for
informational purposes only. I will not discuss copy protection
of physical items like CDs and videotapes; e.g. Macrovision.
Digimarc (Still
images: embeds a unique number owned by the content owner that
can then be found through a Spider crawler. Video/audio:
disallows copying of audio/video digital files; monitors
broadcast of digital signals.) www.digimarc.com
Digital Object
Identifier (DOI) (owner registers the digital asset with
DOI by assigning a unique identifier to the digital object that
is embedded in, or securely associated with, the object. It is a
persistent identifier, rather than a URL that can change. The DOI
can enable linkage to asset creation and rights information
wherever it is encountered. Currently, the DOI is used for
ePublications; developing DOI for digital audio and video and
other digital object applications. DOI is partnering with several
industry and standards organizations (including W3C, WIPO, SMPTE,
MPEG21, XRML (ContentGuard), etc.) For further information refer
to www.doi.org.
SMPTE UMID (Unique
Material Identifier) (Video: owners register the digital
asset with SMPTE, which assigns a unique identifier embedded into
the video file that also provides creation and ownership
information.) www.smpte.org
MPEG Rights Expression
Language and Rights Data Dictionary (used with MPEG7 and
MPEG21) (digital video and audio) OPEN STANDARD. www.cselt.it/mpeg
Digital Transmission
Content Protection (used by studios for subscription
rental service over internet; controls usage) (digital video) www.dtcp.com
XrML (Extensible Rights
Markup Language (developed at the Xerox Palo Alto
Research Center (PARC) as an open standard for tracking DRM and
usage information with digital objects: all formats) www.xrml.com
ContentGuard
(content protection using XrML; for all formats; allows content
holder to authorize specific usage of digital assets) www.contentguard.com
CleverContent
(content protection; still images and text only; allows
image/text files to be accessed but not downloaded or otherwise
captured without authorization). www.alchemedia.com
5.
For-profit and non-profit comparisons : issues and solutions
a. For-profit
i) Issues
- Owns assets (IP)
- Wants to provide access to
assets (profit motive), but to control that
access/distribution
- Rights management awareness
firmly in place
ii) Solutions
- Content protection.
Cant access assets unless have authorization or pay
(subscription services)
- Digital Rights Management
tools to track ownership and usage
b. Non-profit
i) Issues
- Owns physical item
(sometimes IP)
- Wants to provide access.
Profit isnt usually a motivating factor. Any
control placed on that access is out of fear/respect for
rights.
- Rights management awareness
still new concept
ii) Solutions
Content protection usually
limited to giving copyright credit on web site. Not enough (see
Kelly v. Arriba).
Follow new business model:
- Be strict in clearing
rights/permissions; non-profits are now in the
distribution business
- Secure rights to publish
electronically; dont assume that a contract to
publish also applies to the internet.
- Consider rights to privacy
and publicity
- Protect content
- Copyright your own web
sites (design and content)
- Conclusion
6.
Conclusion
Since the passage of the Digital
Millennium Copyright Act, digital copyright law has been
primarily defined and refined through lawsuits. On August 30, the
US Copyright Office submitted its required report on the Digital
Millennium Copyright Act to Congress, and asked Congress to
clarify the copyright law for online music, encryption, the first
sale doctrine, and whether the act of webcasting does encompass
reproduction as it is currently interpreted. The
report recommends that buffer copies of audio
filescurrently defined in the copyright law as
reproductions that could make webcasters liable for
additional licensing fees above public performancefall
under fair use. Webcasters must make these copies in the course
of an activity that is already licensed by the webcaster (public
performance). The report recommends that Congress should enact
legislation amending the Copyright Act to preclude any liability
for reproduction infringement for webcasters creating buffer
copies that will be used for licensed public performance. [The
report can be found on the Copyright Office home page: www.copyright.gov]
Its obvious that the DMCA
will undoubtedly be re-visited by Congress. Much of what I said
today will change tomorrow, so it is important for users of
copyrighted materials to keep up to date with changing law and
cases in the courts. Non-profits that place assets owned by
others on the internet have in effect become distributors. As a
new distribution model for the internet is created, non-profits
and for-profits could discover that they have more intellectual
property rights issues in common than they had previously
thought.
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