Source

L. Chiariglione

Date:

2004/04/20

Title

Kist of TRU studies

No.

0046/Los Angeles

A

:

Already-established legislative TRUs of content creators

B

:

Already-established legislative TRUs belonging to end-users

C

:

Commercial and remuneration TRUs of direct economic significance

D

:

TRUs related to general social liberties

E

:

Fundamental TRUs from historical practice and interaction with analogue media

F

:

Consumer-choice TRUs relevant to the high-tech environment

RH

:

Right Holder

MM

Middleman

EU

End-User

11

Criteria

Description

8.

References

22

Criteria

Description

Because publishing under a pseudonym (or anonymously) is an option, paternity also extends to the right to claim authorship to one’s own work which was previously published under a pseudonym (or anonymously).

Although authors might contract to allow someone else to take credit for their own work, the paternity TRU can allow the true author to take credit even when this might be economically unfair.

On collective works such as motion pictures, the right to have one’s name associated with one’s creation – and the separation of this from the economic contracts involved – becomes essential to the lengthy “roll credits” that often occurs at the end of the movie.

It is worth noting anecdotal evidence that writers guilds commonly resolve disputes over who is entitled to have their name appear and how, and that these conflicts are frequent, lengthy and contentious.

The use of names also can involve two people with the same name and problematic cross-cultural issues such as foreign alphabet support, the use of diacrital marks with Roman text, and pronunciation difficulties. For example, the composer Dvorjak’s name is missing a hacek diacritical mark, the Russian author Solzhenitsyn is distributed under a romanization (versus Cyrillic) that is commonly mispronounced, and sounds such as the German “e” at the end of Hesse and Nietzsche can lead to heated debate as to whether it should be not-pronounced or pronounced with a strong “uh” sound, both of which are wrong.

Treaty landmarks include addition of paternity and integrity to Berne in 1928 Rome Act with Article 6bis according to Goldstein’s International Copyright Sec. 2.I.2.I, and note mention of droit moral in 1928 Article 11bis. Also of note is Article 5 of the 1996 Geneva WIPO Performances and Phonograms Treaty. At Sec. 2.2.3, Goldstein says, “This is the first time moral rights have been prescribed for performers in an international agreement.” A notable law case was decided 1991 by the Court of Cassation in France regarding movie colorization (Goldstein Sec. 3.3.2.2.C), interpreting moral rights being “inalienable” as providing authors from foreign countries with full access to the French court system to assert these rights (at a minimum, inside France).

At Sec. 5.4.2.I, Goldstein quotes the WIPO Guide to the Berne Convention as calling Paternity the “first and foremost” moral right and the Guide says it “may be exercised by the author as he wishes; it can even be used in a negative way i.e., by publishing his work under a pseudonym or by keeping it anonymous, and he can, at any time, change his mind and reject his pseudonym or abandon his anonymity.”

Also at that section, Goldstein points to the U.S. as primarily rtefacts similar interests (to Paternity) through Trademark law at 15 U.S.C. Sec. 1125(a) (link to statute) titled “False designations of origin, false descriptions, and dilution forbidden” or when a licensee’s obligation to give attribution is imposed on them by contractual agreement.

Parternity should first be addressed by separating what is trivial from what is non-trivial about its support. Names are all over the place attached to most important consumer-priced digital media for sale. The company that produces the piece of media for sale is likely to be featured, as well as the “title” of the piece, perhaps a brief authorised “description” and whatever other personal information, quite likely to include a number of common human names such as Jose or Michael.

Indeed one of the most problematic factors is local alphabet support either by or similar to Unicode. A treat for many audiences would be to hear the author pronounce his or her own name, and to have a way to choose to hear this alongside whatever alphabetic appearance the person’s name has, in the spelling conventions of the author’s native language.

Additional material could be provided; it wouldn’t be hard to price audio recordings of authors’ mothers, wives or kids telling humorous stories about them or video clips of interviews with fans saying what was most rtefacts about the creator’s work. If all of this was author-approved, it could be trivial to provide all of this and much more, as well as many different approaches. For example, an XML RSS-feed type server could provide international mirror-hosting and be easily available online globally, although there would likely be local censorship concerns in many countries, especially respecting titles that are forbidden or are permitted for research purposes only.

As a personal fan of “It’s a small world after all” who grew up near the U.N., I can vouch for being an interested consumer in global atlases for which authors and artists can describe where they grew up and countries they travel to in cross-referenced databases.

Especially obvious to DMP by now are the issues of quoting. TRU Paternity support in TRU Quote is essential.

Note that moral rights vest more immediately in flesh-and-blood authors and so behave differently from data from sources more controlled by Middle-men or created as a collective work such that there is some consequential dilution of name recognition except for well-known stars. In some ways, in this system, any name that is a “star” name or a “hero” name should actually be cross-referenceable within the Paternity-support system.

Along the lines of the WIPO digital agenda there is excellent potential for ecommerce support.

A primary challenge is to specify curatorial supervision of the database, challenging authors’ contributions when they veer away from reasonable and sensible data worth storing on their behalf within the trusted digital repository. Note that the database itself is specifically required to be trusted; there is a likelihood of economic harm if the database is not well-maintained as content per se.

DMP shall support the ability of creators to record the pronunciation of their name in their native language as well as the ability to display the native-language written form of their name.

DMP shall support straightforward global atlas referencing as well as the ability to associate 3D locations with time and short comments or descriptions.

DMP shall support paternity by providing a means to cross-reference prominent names, distinguishing people or parties that are identical from other entries with similar details.

DMP shall support ecommerce transactions consistent with the WIPO Digital Agenda.

DMP shall support the specification of conditions for maintenance of a trusted database, such that both its technological delivery as well as the integrity of its content are both well-maintained.

8.

References

23

Criteria

Description

Because publishing under a pseudonym (or anonymously) is an option, paternity also extends to the right to claim authorship to one’s own work which was previously published under a pseudonym (or anonymously).

Although authors might contract to allow someone else to take credit for their own work, the paternity TRU can allow the true author to take credit even when this might be economically unfair.

On collective works such as motion pictures, the right to have one’s name associated with one’s creation – and the separation of this from the economic contracts involved – becomes essential to the lengthy “roll credits” that often occurs at the end of the movie.

It is worth noting anecdotal evidence that writers guilds commonly resolve disputes over who is entitled to have their name appear and how, and that these conflicts are frequent, lengthy and contentious.

The use of names also can involve two people with the same name and problematic cross-cultural issues such as foreign alphabet support, the use of diacrital marks with Roman text, and pronunciation difficulties. For example, the composer Dvorjak’s name is missing a hacek diacritical mark, the Russian author Solzhenitsyn is distributed under a romanization (versus Cyrillic) that is commonly mispronounced, and sounds such as the German “e” at the end of Hesse and Nietzsche can lead to heated debate as to whether it should be not-pronounced or pronounced with a strong “uh” sound, both of which are wrong.

Treaty landmarks include addition of paternity and integrity to Berne in 1928 Rome Act with Article 6bis according to Goldstein’s International Copyright Sec. 2.I.2.I, and note mention of droit moral in 1928 Article 11bis. Also of note is Article 5 of the 1996 Geneva WIPO Performances and Phonograms Treaty. At Sec. 2.2.3, Goldstein says, “This is the first time moral rights have been prescribed for performers in an international agreement.” A notable law case was decided 1991 by the Court of Cassation in France regarding movie colorization (Goldstein Sec. 3.3.2.2.C), interpreting moral rights being “inalienable” as providing authors from foreign countries with full access to the French court system to assert these rights (at a minimum, inside France).

At Sec. 5.4.2.I, Goldstein quotes the WIPO Guide to the Berne Convention as calling Paternity the “first and foremost” moral right and the Guide says it “may be exercised by the author as he wishes; it can even be used in a negative way i.e., by publishing his work under a pseudonym or by keeping it anonymous, and he can, at any time, change his mind and reject his pseudonym or abandon his anonymity.”

Also at that section, Goldstein points to the U.S. as primarily rtefacts similar interests (to Paternity) through Trademark law at 15 U.S.C. Sec. 1125(a) (link to statute) titled “False designations of origin, false descriptions, and dilution forbidden” or when a licensee’s obligation to give attribution is imposed on them by contractual agreement.

Parternity should first be addressed by separating what is trivial from what is non-trivial about its support. Names are all over the place attached to most important consumer-priced digital media for sale. The company that produces the piece of media for sale is likely to be featured, as well as the “title” of the piece, perhaps a brief authorised “description” and whatever other personal information, quite likely to include a number of common human names such as Jose or Michael.

Indeed one of the most problematic factors is local alphabet support either by or similar to Unicode. A treat for many audiences would be to hear the author pronounce his or her own name, and to have a way to choose to hear this alongside whatever alphabetic appearance the person’s name has, in the spelling conventions of the author’s native language.

Additional material could be provided; it wouldn’t be hard to price audio recordings of authors’ mothers, wives or kids telling humorous stories about them or video clips of interviews with fans saying what was most rtefacts about the creator’s work. If all of this was author-approved, it could be trivial to provide all of this and much more, as well as many different approaches. For example, an XML RSS-feed type server could provide international mirror-hosting and be easily available online globally, although there would likely be local censorship concerns in many countries, especially respecting titles that are forbidden or are permitted for research purposes only.

As a personal fan of “It’s a small world after all” who grew up near the U.N., I can vouch for being an interested consumer in global atlases for which authors and artists can describe where they grew up and countries they travel to in cross-referenced databases.

Especially obvious to DMP by now are the issues of quoting. TRU Paternity support in TRU Quote is essential.

Note that moral rights vest more immediately in flesh-and-blood authors and so behave differently from data from sources more controlled by Middle-men or created as a collective work such that there is some consequential dilution of name recognition except for well-known stars. In some ways, in this system, any name that is a “star” name or a “hero” name should actually be cross-referenceable within the Paternity-support system.

Along the lines of the WIPO digital agenda there is excellent potential for ecommerce support.

A primary challenge is to specify curatorial supervision of the database, challenging authors’ contributions when they veer away from reasonable and sensible data worth storing on their behalf within the trusted digital repository. Note that the database itself is specifically required to be trusted; there is a likelihood of economic harm if the database is not well-maintained as content per se.

DMP shall support the ability of creators to record the pronunciation of their name in their native language as well as the ability to display the native-language written form of their name.

DMP shall support straightforward global atlas referencing as well as the ability to associate 3D locations with time and short comments or descriptions.

DMP shall support paternity by providing a means to cross-reference prominent names, distinguishing people or parties that are identical from other entries with similar details.

DMP shall support ecommerce transactions consistent with the WIPO Digital Agenda.

DMP shall support the specification of conditions for maintenance of a trusted database, such that both its technological delivery as well as the integrity of its content are both well-maintained.

8.

References

24

Criteria

Description

For middlemen, a countervailing TRU is reasonable modification, which certainly applies to minor issues such as punctuation or correcting misspelled words. On the other hand, middlemen could seek to take liberties such as changing characters’ names and deleting or adding scenes or prose passages. Examples could include sexiness, political controvery or the use of vulgar language, and these might be either added or deleted for marketing pusposes, particularly when cross-cultural sensibilities are involved.

Although the U.S. resistance to moral rights can seem puzzling, it seems a likely speculation that the combination of paternity and integrity offer opportunities for creators to act like demanding prima donnas, regardless of what economic contracts say. This can include advocating integrity rights in combination with paternity by threatening, “If you do that, then you have to take my name off it” when the author’s name is what gives a specific work its anticipated market value. For example, many a book author has objected to movie adaptations made from their books (e.g., Tom Clancy) by protesting that the filmmakers should have stuck to their book’s plot and events more closely, and many a film director has objected to shortened versions demanded by film studios (e.g., Sergio Leone). Writers are also notorious for wanting deadlines extended, time for additional revision, or having unusual ideas of how to write such as fussing over commas. It has been said by many a businessman that without deadlines, creative types might simply never get things finished. Then if a work is a success, there is often a market for revisions and these in turn can entail a variety of complications.

Visual artists may also have unique quality-of-reproduction issues, for example concerns about accurate reproduction of colors.

In spite of the many excuses that can be made on behalf of those who habitually modify work as value players in the content-chain connecting creator with end-user, there are also compelling arguments to be made on the creator’s behalf, since they are the source of the material to be presented. For example, American humorist James Thurber has related many stories in which his well-meaning and competent editors at The New Yorker magazine tried to mangle his prose in order to make it more acceptable. There is certainly a line that should not be crossed without the creator’s consent, regardless of how difficult it might be to draw such a line for each individual work and proposed change. A well-known U.S. court case that was resolved on the economic issue of reputation – since moral rights do not apply in the U.S. except for certain visual arts – involved the work of Monty Python’s Terry Gilliam, who successfully objected to commercially oriented edits made by ABC to condense his material for television broadcast (ref. Goldstein International Copyright Sec. 5.4.2.2).

Treaty landmarks include addition of paternity and integrity to Berne in 1928 Rome Act with Article 6bis according to Goldstein’s International Copyright Sec. 2.I.2.I, and note mention of droit moral in 1928 Article 11bis. Also of note is Article 5 of the 1996 Geneva WIPO Performances and Phonograms Treaty. At Sec. 2.2.3, Goldstein says, “This is the first time moral rights have been prescribed for performers in an international agreement.” A notable law case was decided 1991 by the Court of Cassation in France regarding movie colorization (Goldstein Sec. 3.3.2.2.C), interpreting moral rights being “inalienable” as providing authors from foreign countries with full access to the French court system to assert these rights (at a minimum, inside France).

Before discussing the Oscar Wilde case (described more fully at TRU reputation), Sec. 5.4.I.I.ii of Goldstein says, “The economic right of adaptation will sometimes overlap the moral right of integrity which similarly empowers authors to control changes in their work.” Note that many kinds of derivative work or “spin-offs” are possible but these largely don’t impinge on TRU integrity unless they have author consent, that is to say the Right-holder exercising their TRU adaptation.

Integrity presents a number of unique challenges. Especially obvious is bit-accuracy either after transmission or confirmed as “going well” at the consumer-receiver device (or at least not going badly enough for a user to “sound the alarm” and complain). Arguably, provisioning is impossible without some easy way for the customer to report whether service is satisfactory or poor.

Several integrity concerns are connected to both TRU reputation and TRU that sales displays will follow acceptable practice. This would not be too difficult to arrange within some support-alternatives for “Integrity” provisioning.

DMP shall support specifications for End-users to signal content-providers as to whether the final rendering, of whatever data transmission is agreed to, is well-received and functioning as intended, conversely End-users shall be enabled to interactively communicate – to a service provider including a content service provider – in order to indicate when reception is garbled or unusable.

DMP shall support the ability for End-users to signal or communicate dissatisfaction with content, preserving a measurement of the exact moment of the objection as well as content source material being objected to, including the ability to downgrade the rating of a creator’s reputation (a virtual “shame on you”).

DMP shall support the specification for delivery of display criteria such as would be suitable to ensure that a promotional campaign remained branded within certain acceptable limits, for example minimum size of display, acceptable range of prescribed colors, authorised descriptions and other strings of prose.

8.

References

32

Criteria

Description

The sort of verbal dialogue that could illustrate this would be if someone asked “Did you really mean that?” or “What were you thinking when you said that?” Possible answers to which could be “I meant it at the time but I don’t feel that way now” or “I must have been out of my mind and I’m ashamed that I said that.”

Considering how mutable an artist’s creative thoughts may be, it is easy to imagine that giving them the power to repeatedly assert this right could allow them to cause quite a nuisance. On the other hand, the principle involved deserves a certain respect and protection, particularly since competitors or enemies might seek to damage a person’s reputation by publicizing the poor qualities of their previous creations.

Examples could include politicians’ statements made during an earlier period in their career, artistic works edited and hyped by Middlemen that then fall flat causing the artist to claim “that didn’t reflect who I really am” during subsequent efforts to promote new works, periods of religious zeal causing output created during this period to have a dogmatic or tedious character, and the same result as the preceeding however caused by a proclivity for so-called “adult” content such as sex, violence or foul language.

When competitors or enemies refer to works that a creator might wish to disavow, there is a tendency to misrepresent the time or context in which the works were made public. For example, an enemy could say “Do you know that he said ___?” to which the speaker might reply “That was 30 years ago and I had just been insulted. That doesn’t represent who I am or what I really think.”

It should not be too challenging to provide fields in a reputational database allowing creators to express negative comments about their own previous work.

Note the proposed Integrity RQs support most of what’s needed for this.

34

Criteria

Description

In earlier times, the exercise of this right included analogue restrictions that do not directly translate to digital:

• TRU to distribute lower-res copies only
• TRU to compel real-time only consumption
• TRU to restrict place of use
• TRU to restrict time of use

Note that reproduction can be so broad as to encompass all Right-holder TRUs especially TRU distribution, including lending and rental, yet also including TRU broadcast and TRU performance. The right to reproduce is often embodied in law with regards to “subject matter” analogue media type, for example “phonograms” and “cinematic works”. Since the 1996 WCT/WPPT, two new TRUs connected to reproduction have been broadly adopted, adapted to the phenomenon of digital media:

• TRU communication to the public
• TRU to technological access restrictions

The history of TRU reproduction is long and varied. It cannot be emphasised enough that TRU reproduction is restrictive, giving the creator the right to restrict expression when others seek to reproduce a significant number of copies. It is so restrictive as to be “exclusive” giving the Right-holder the right to exclude potential infringing competitors by calling on the law for national enforcement. Simultaneous with this, some fair use copying has always been accepted, notably quoting, news, classrooms, and official announcements.

In some ways reproduction is like a belt – it only holds things together because of the fair use holes in it. Ironically, reproduction was not explicitly mentioned in early Berne. “The reproduction right, though regularly protected under national law, did not appear in the 1886 text” GIC 2.I.2.I.A, see also footnote 69. “In practice, reproduction rights were universally recognized under national legislation, but the exceptions to these rights varied considerably from country to country” R 20 and see footnote 47. Its introduction came with what is commonly referred to as the Article 9(2) exception allowing anybody to do anything provided the “three-step test” criteria are all met, see breakdown R 20-27. As far as the ability to make new exceptions, 9(2) is like an awl or drill that can make a hole in anything.

A long history of large and small industrial Middle-men have shaped the past of reproduction, notably the Stationers Guild. Goldstein gives a nice account of the Stationers’ first claim in 1706 that they represented the rights of authors (GCH Chapter 1, 33-35) and he ends Copyright’s Highway with a reference to this historical landmark. It is worth noting that Middle-men have a tendency to assert that most titles lose money. It has followed from this that organisations of Middle-men have often been in the best position to call for law enforcement through costly lawsuits. The advocacy work of many creators should be noted including Victor Hugo, Charles Dickens, Mark Twain (see to U.S. Congressional committee) and the opera composer Giacomo Puccini. Also notable is Supreme Court Justice Oliver Wendell Holmes, Jr. whose father was an author.

Because history has taken reproduction into the digital era there is now also a treatment for it there. On the other hand, the digital approach of WCT/WPPT is somewhat antithetical to the traditional history of copyright. Goldstein says, “Other than its inclusion in the text of a copyright and a neighboring rights treaty, the anticircumvention requirement has no connection—indeed is antithetical—to the philosophy of copyright generally, that privately enforced rights mediate more efficiently and equitably between authors and their audiences than do physical or technological fences.” (GIC 5.4) See treatment at TRU communication to the public and TRU technological access restrictions.

It should be noted these two digital, post-Internet TRUs do not require mapping to the digital domain and should probably be excluded from any such mapping. They primarily govern DMP in the form of applicable treaty language. As far as our mapping project into the digital domain, their main use might be the assignation of TRU to technological access restrictions after the fact to those RQs that seem required by the use of digital security technologies such as encryption key management.