Technology Challenging Rights

 Last update: 2003/03/08

Rights to anything are defined by the public authorities of a country in which the thing is located. Therefore, rights to a literary or artistic works can only apply to works in a particular country. The Berne Convention for the Protection of Literary and Artistic Works of 1886 was the first attempt at creating a basic set of rules with a validity extending beyond national borders. 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 few years ago.

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.

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 early times because works, first books but later other media as well, were fixated on physical carriers and their duplication required costly equipment that only professionals could afford. Keeping professional "pirates" in check was a task for which the traditional setting of 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 for those wanting to make copies and the law had to take care of "exceptions" that had to be granted 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 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.

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. But at the same time 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 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 law happened in the US Congress with the AHRA. This was triggered by the appearance on the market of the DAT. This CE 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 for copying the bitstream output from a CD. 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 CC. A major innovation of the AHRA is that digital recording devices like DAT be equipped with a Serial Copy Management System (SCMS) allowing only one copy. The AHRA, however, 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, work began at the international level within the World Intellectual Property Organisation (WIPO) to extend some provisions of the Berne Convention and provide responses to the challenges brought about by information and communication technologies. 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 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;
• States joining the treaty 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 process of converting the treaties into national laws is under way. This includes the US Digital Millennium Copyright Act (DMCA) of 1998 and the European Directive on Copyright and Related Rights in the Information Society and the draft Directive on Electronic Commerce proposed by the CEC. Approval of the Copyright Directive, however, is not the final step because national parliaments have to adopt national laws.

No matter how well the future is prepared for, something unexpected is always bound to happen. No better proof of this sample of wisdom can be found than the MP3 story. This 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: DCC and DAB, respectively. The performance of Layer III was significantly superior to the other two Audio Layers but the algorithm was deemed 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 materialised:

• The number of PC audio boards started peaking up and listening to high-quality music from a CD on 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;
• 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, that MPEG had developed, was optimised for execution on the Pentium;
• The role of the Internet changed from a communication tool affecting mostly academia and research to a mass phenomenon.

In a matter of months, more and more PC users began being MP3 users, as MPEG-1 Audio Layer III was soon rechristened. With good encoding software, a music track of average duration could be reduced from an utterly unmanageable 40-50 Mbyte to a still imposing but reasonable 2-3 Mbyte. There were wide variations in music quality depending on the encoder and the bitrate, but users apparently could not care less because it was not just the music they were interested in, but also new ways of experiencing it.

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 liking, not to 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.

Some entrepreneurs 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, D/A conversion and computer interfacing, the whole thing weighed just a few tens of grams, most of them coming from the case of the device. Users could upload the MP3 files they liked on their RIO player and listen to their songs the way they liked with a freedom they had never enjoyed before.

Other Web "enthusiasts" saw lucrative uses of this 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. A user would prove by some means that they had legitimate possession of a CD (already a considerable progress in respecting the value of musical assets) and the web site would then make the tracks on that CD accessible anytime and anywhere to that particular person.

The most enthusiastic entrepreneurs of all thought that they could develop a P2P protocol. Users would install an application on their computers that would enable them to share the MP3 files present on the users' disks. The entrepreneurs would then just manage a directory, listing which file was available where. People would access the directory, get the information about the peer and download the MP3 files they were interested in. Today some P2P protocols do not even require a central directory service to operate.

Even artists, both well established and new, tried the chance of getting in touch with their fans directly 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.

The history of the web so far, even considering its current limitations - mostly bandwidth - and the history of MP3 in particular, has taught some important lessons. Artists, apparently, like the idea of being able to access their public directly. Consumers, apparently, like the idea of being 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 old forms of intermediation are simply being overtaken by new ones. The idea that the web signals the end of intermediation is just a fairy tale, which does not mean that it is clear what new shape intermediation will take.

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 it did not meet AHRA requirements, because it did not have a SCMS. Diamond countered with the position that the RIO was not a recording device, but simply an IT device with playback functionality, outside the scope of the AHRA. The judge sided with Diamond, it got it its way and today it is hard to take into account how many MP3 players are commercially available.

A similar story, but with a different ending, happened with the personal MP3 file repository offered by MP3.com. The RIAA sued the company and eventually succeeded. Today MP3.com can offer the service but only after having paid huge fines and after negotiating business deals with each of the record companies. Interestingly MP3.com has been 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 had over 80 million, dwindled to near zero leading the company to bankruptcy. Today similar battles are being waged against new 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 2600.com case, an American judge ruled that it was not just illegal to post the code of the DeCSS (as the "CSS ripper" was called) but in addition it was a crime to post hyperlinks to it. The matter is not entirely settled, though, as 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. Because disciples of those philosophers had learnt those works by heart. So, shall we see hackers memorising the DeCSS code and communicate the code as word-of-mouth?

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. It looks like that keeping these distinctions alive serves the interests of people who make a good living out of confusion. The losers are the entrepreneurs who are deprived of their opportunities to try new businesses while remaining 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 fogetting them -rights holders as well. 

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