NINCH >> NINCH Programs
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>> 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, HBO’s 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
Let’s first start with some
definitions.
a. Asset
ownership
I’d 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 wasn’t published, it is therefore not copyrighted and there
can be no infringement if it is used. But don’t think you’re 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 party’s 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 donor’s
collection. Third-party works commonly include correspondence and
artwork. You will need to obtain rights to use that 3rd party’s
work. This ties in again to the Salinger case; JD Salinger’s 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.
Let’s say you’d 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 talent’s 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 talent’s image is used. Can non-profits use
the talent’s 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 doesn’t
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 needn’t 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 Arriba’s (now
Ditto.com) using a crawler to retrieve Leslie Kelly’s photographs
off his personal site without Kelly’s 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 Kelly’s 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 organization’s 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. It’s
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. It’s a common practice
that the rights revert to the performer 35 years after the
recording’s 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.
Let’s consider some examples to help
illustrate these various rights.
Example One: You want to use
Aretha Franklin’s version of the Beatles’ “Eleanor Rigby”on 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 you—they
have databases and license applications on their web sites, so it’s
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 you’ll use music that is in the public
domain. You select a recording of Mozart’s String Quartet KV 387,
performed by the Emerson String Quartet. Now while the quartet is
certainly not on ASCAP’s list of protected compositions, you would
still need to secure rights for the recording from Deutsche
Grammophon.
Example Three: OK, let’s 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. That’s 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 wasn’t 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 asset’s 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 organizations—non-profit
and for-profit alike—to 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 studios—Sony 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. I’ll 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 tricky—is 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 can’t 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 can’t 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.
Let’s 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-profit’s use of home movies, oral histories, etc.
Example: A donor could give rights to use his/her family’s 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. I’ve discussed who can own the assets, and
considerations in licensing. Now let’s 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 area—content
owners don’t 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 you’re 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 can’t 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. Can’t
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
isn’t 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; don’t 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 files—currently defined in the copyright law as
“reproductions” that could make webcasters liable for additional
licensing fees above public performance—fall 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]
It’s 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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