Technology Challenging Rights

Technology Challenging Rights

Rights to anything are defined by the public authorities of a country in which the thing is located. Rights to a literary or artistic work are no different and can only apply to works in a particular country. As this did not promote commerce, in 1886 the Berne Convention for the Protection of Literary and Artistic Works first attempted to create a basic set of rules with a validity extending beyond national borders to countries that signed the Convention. The architecture of the Convention is heavily influenced by the “author’s rights” approach to protection and indeed the United States only joined the Convention a little more than one century after its foundation in 1988.

Besides a broad definition of “Literary and artistic works” that applies to every production in the literary, scientific and artistic domain using a variety of expressions (Art. 2.1), the Convention sets a number of important principles, e.g.:

  1. The author has the right to claim authorship of the work and to object to any distortion or mutilation that would be prejudicial to his honour or reputation (Art. 6 bis – 1)
  2. Different media are protected for different periods of time (Art. 7)
  3. Authors have the exclusive right to authorise the reproduction of their works, but reproduction of such works in certain special cases is permitted (Art. 9)
  4. Quotations from a work may be made available to the public (Art 10-1)
  5. Works may be used by way of illustration in publications, broadcasts or sound or visual recordings for teaching (Art. 10-2).

Other international treaties relevant to rights of literary and artistic works are the Universal Copyright Convention of 1952, the International Convention for the Protection of Performing Artists, Producers of Phonograms and Broadcasting Organisations (Rome Convention) of 1961 and the Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of their Phonograms of 1971.

Often it makes practical sense to uphold a “right”, either as nationally or internationally defined, only when there are practical means to enforce it. This was not really an issue in the early times because works, first books but later other media as well, were distributed on physical carriers and their duplication required costly equipment that only professionals could afford (but this was not necessarily an impediment to printers who reprinted books printed in England and triggered Queen Anne’s Act). Keeping professional “pirates” in check was a task for which the traditional setting of courts of law and police forces was adequate, and the infringement of the author’s or publisher’s rights could be kept below an acceptable threshold.

Progress of technology, however, has gradually reduced the entry level to those wanting to make copies. Thus the law was forced to deal with the lowering thresholds by introducing “exceptions” so that persons making a copy of a few pages of a book, or of a song, would not automatically be reduced to criminals and manufacturers of copiers, recorders and cassettes would not automatically become their accomplices. Even though rights holders feared that the home recorder had become a potential tool for mass piracy, the reality of analogue technology was such that the quality of copies of records and films has been worse than the original and fast degrading at each copy.Actually the enhanced ease of distribution promoted knowledge of the work and prompted others to buy an original.

Therefore most European countries grant consumers the right to make private copies, the principle being that these are not likely to compete with, and so reduce the market for, the original works. At the same time, however, a levy is applied on recording equipment, including blank tapes. The proceeds of this levy go to rights holders in order to compensate them for the “loss of revenues” caused by such private copying. In the United States the Audio Home Recording Act (AHRA) grants consumers the ability to make private copies of broadcast music.

The US Copyright Law has adopted the notion of “fair use”, a compromise between the strict application of the publisher’s rights and a “reasonable” use of the work. This is to be assessed on the basis of four parameters:

  • Character of the Use: e.g. for educational or non-profit purpose
  • Nature of the Work: e.g. the work is factual as opposed to being creative
  • Portion of Work Copied: e.g. a small portion of the work
  • Effect on the Market Value of the Work: (e.g. small impact on the value of the work as a consequence its use).

Probably the first encounter of content with digital technologies under the auspices (so to speak) of the law happened in the US Congress with the AHRA. This was triggered by the appearance on the market of the Digital Audio tape (DAT), a digital audio recording device introduced by Sony in 1987. This device is capable of recording up to 2,048 kbit/s of data in real time and an obvious, although not unique, use of the DAT was seen for copying the stream of bits leaving a CD player. This was of concern to the music industry, because of the ability of the DAT to make perfect copies, a major departure from the self-degrading feature of the Compact Cassette. Therefore the AHRA made it mandatory that digital recording devices like the DAT be equipped with a Serial Copy Management System (SCMS) that would allow to make only one copy of a given digital recording device. An apparently innocent footnote, but something that the IT industry took care that was clearly contemplated, is that the AHRA only applies to CE devices, not to IT devices.

Fearing the arrival of more digital technologies, with their ability to allow a limitless number of perfect copies of a digital original, the World Intellectual Property Organisation (WIPO) started work designed to extend some provisions of the Berne Convention and provide responses to the challenges brought about by Information and Communication Technologies ICT). In December 1996 the Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions adopted two Treaties, namely the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Some of the features of these Treaties are:

  • Computer programs are protected as literary works;
  • Compilations of data or other material constitute intellectual creations;
  • Authors of computer programs; cinematographic and phonographic works have the exclusive right of authorising commercial rental of their works;
  • Authors have the exclusive right of authorising any communication to the public of their works by wire or wireless means;
  • States that are party to the treaty (Signatories) provide legal remedy against those who alter Rights Management Information, i.e. information which identifies the work, the author, the rights owners, information about the terms and conditions of use, and any numbers or codes that represent such information;
  • Signatories have an obligation to make unlawful any device, product or component incorporated into a device or product, the primary purposes or primary effect of which is to circumvent any process, mechanism or system that prevents or inhibits the exploitation of rights holders’ rights.

The treaties have been converted into national laws by many Signatories. In the USA the Digital Millennium Copyright Act (DMCA) was enacted in 1998 and in Europe the European Directive on Copyright and Related Rights in the Information Society was adopted in 2001. The Copyright Directive, however, had to be converted into national laws by the national parliaments of EU Member States.

No matter how well the future is prepared for, something unexpected is always bound to happen. No better example of this lowly sample of wisdom can be found than MP3 . The story started in November 1992 when the then still largely unknown ISO WG called MPEG approved MPEG-1. The Layer I and Layer II portions of that standard had very clear application targets: Digital Compact Cassette (DCC) and Digital Audio broadcasting (DAB), respectively. The performance of Layer III was significantly superior to the other two Audio Layers but the algorithm was deemed by some MPEG experts to be “too complicated” for consumer applications and for some time its use was confined to professional environments.

Towards the mid 1990s, however, a number of concurrent events occurred:

  • The number of PC audio boards started peaking up and listening to high-quality music from a CD using a PC became commonplace, at least among computer aficionados;
  • Microsoft launched Windows 95 where for the first time it became easy for anybody to copy a music track from CD onto a hard disk by “drag and drop” on the Windows 95 GUI;
  • The number of Intel Pentium processors peaked up, thus providing a generation leap in the computational capability of a PC;
  • The MPEG-1 Audio Layer III reference software was adapted and optimised for execution on the Pentium;
  • The role of the Internet began to change from a communication tool that affected mostly academia and research to a mass phenomenon.

In a matter of months, more and more PC users also became MP3 users, as MPEG-1 Audio Layer III was soon christened. With good encoding software, a music track of average duration could be reduced from the utterly unmanageable – at that time – 40-50 Mbyte per track to a still imposing but reasonable 3-4 Mbyte. There were wide variations in music quality depending on the encoder and the bitrate used, but apparently users did not care so much because it was not just music quality they were interested in, but new music experience.

Users began to rip off music tracks from their CDs, compress them and store them on their PC hard disks. Enthusiasts could make compilations to their own, not the record companies’ liking. With the ever-increasing bitrate made available by telephony modems, users soon discovered that it was also easy to send MP3 files to their friends as email attachments or by other means.

Some entrepreneurs immediately saw the opportunities offered by the new technology. The first portable MP3 player, the RIO, manufactured by Diamond Multimedia, was a technology jewel. Made up of the necessary amount of flash memory to store the MP3 files and a DSP for decoding the bitstream, D/A conversion and computer interfacing, the whole thing weighed just a few tens of grams, most of them coming from the device case. Users could upload their MP3 files on their RIO players and listen to their songs the way they liked with a freedom never enjoyed before. This was a little more than 5 years after MPEG-1 was approved with some saying that MPEG-1 Audio Layer 3 was too complex!

Other Web “enthusiasts” saw lucrative uses of the new technology. By ripping off thousands of music files from CDs, compressing them in MP3 and posting them on their web sites, they could lure internauts to their sites, where they would be encouraged to download music files for free. While the files were slowly downloading, the visitor would be exposed to advertisements posted on the site and the advertisement space could be sold to interested companies. Some other enthusiastic entrepreneurs saw the opportunity to host MP3 files on their servers so that users who could prove by some means that they had legitimate possession of a CD (already a considerable progress in respecting the value of music assets) could make the tracks of that CD accessible anytime and anywhere to that particular person.

The most enthusiastic entrepreneurs of all thought that they could build a community of music fans who would contribute a portion of their hard disk space to store a portion of the community’s music. A software was developed implementing a protocol, later to be called Peer-to-Peer (P2P) to be installed on users’ computers so that they could “share” the MP3 files present on their hard disks with other users who had installed the same software. The entrepreneurs would then “just” manage a directory, listing which file was available where. People would access the directory, get the information about the closest peers and download the MP3 files they were interested in directly from that peer. Some P2P protocols did not even require a central directory service to operate.

Even artists, both well established and new, tried the chance of getting in direct touch with their fans by  posting their own MP3 songs on their websites. But it is one thing to use the web as an advertisement medium and quite another to use it as a place to post wares for free. Artists could possibly become famous, but they would remain penniless unless one could find a smart idea.

The history of the web so far has taught some important lessons, even if one considers some limitations – mostly bandwidth – and the history of MP3 in particular. Artists are keen to be able to access their public directly. Consumers are keen to be able to find the songs they are interested in on the web, download them and listen to them when and how they like. Some intermediaries – the lazy ones, I mean – fear the disintermediation brought by the web, because they see it as leading to the annihilation of their role. Other intermediaries – the smart ones, I mean – know very well that web disintermediation is nothing more than an urban legend, because new forms of intermediation simply overtake the old ones. The idea that the web signals the end of intermediation is just a fairy tale, as is proven by the many music distribution services whose role is exactly that: web intermediaries between music companies and consumers.

It is understandable that people owning the rights to hundreds of thousands of songs feel nervous and that for them MP3 is not the tool that provides new experiences in music and makes people happy, but a tool that can be used to rob rights holders of their property. The Recording Industry Association of America (RIAA), the trade association of the USA record industry, reacted strongly to the RIO and filed an injunction against the sale of the device. They claimed the device did not meet AHRA requirements, because it did not have a Single Copy Management System (SCMS). Diamond countered with the position that the RIO was not a recording device, but simply an IT device with playback functionality, outside of the scope of the AHRA. The judge sided with Diamond, which got it its way and today it is probably impossible to count how many MP3 players are commercially available. For sure MP3 players – hardware or software – are counted by the billions as most mobile handsets have one.

A similar story, but with a different ending, happened with the personal MP3 file repository offered by The RIAA sued the company and eventually succeeded. Today exists in name and offers services but only after it paid huge fines and negotiated business deals with each of the record companies. Interestingly was acquired by Universal, at that time the largest record company.

Napster is the name of the company that developed the first and for some time very successful P2P protocol. Here again the RIAA sued the company complaining that Napster was promoting large-scale copyright infringement and successfully made its case in the courts. As a result the number of users of the “service”, that in its heyday numbered over 80 million, dwindled to near zero leading the company to bankruptcy. Similar battles were waged against other incarnations of P2P companies.

Another case has affected the DVD. A Norwegian hacker found the encryption keys on a faulty implementation of a DVD player and the information was posted on the web. In the MPAA vs case, an American judge ruled that it was not just illegal to post the code of the DeCSS, as the ripper of Content Scramble System (CSS) was called, but it was also a crime to post hyperlinks to it. Some civil liberties associations say that posting computer code on the web, or printing it on a T-shirt, is a manifestation of the free speech right granted by the US Constitution. In the meantime people can download programs from the web for doing DeCSS and MPEG-4 Video + MP3 encoding. Users can then “copy” a movie from a DVD and burn it on a CD-ROM in the form of an MP3/MP4 compressed movie.

While it is clear that people have the right to make recourse to law to protect their rights and that judges must rule on the basis of what the law is at the moment the sentence is issued, I find it disheartening that the rights and the wrongs be determined by whether something is considered to be a playback or a storage device or a CE or an IT device or if a company is based in one country or in another or if a computer code is printed on a T-shirt or is a computer file. It looks like going back 22 centuries in China when Emperor Qin Shi Huang-Ti ordered all philosophers’ books to be burned. Were those books lost? No, simply disciples of those philosophers had learnt those works by heart and could communicate them to the next generation. So, shall we see hackers memorising the DeCSS code and communicate the code as word-of-mouth and across the centuries?

I believe society must recover the sense of ridicule. Electronic engineer and computer scientist are not standard bearers of the sense of ridicule, but the sample distinctions quoted above do not make any sense at all, at least to normal people. It seems that keeping these distinctions alive serves the interests of people who make a living out of confusion. The losers are the entrepreneurs who are deprived of their opportunities to try new businesses if they want to remain good citizens and end users who are deprived of the benefits brought by the wonders of technology, if they want to stay good citizens. Quite a few people, I dare say. And – sorry for forgetting them – rights holders as well.