The Interactive Media Industry, Intellectual Property Rights, the Internet and Copyright: Some Lessons from the TrustDR Project
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Note this article assumes some familiarity with these concepts: Learning Objects, Metadata, Educational Standards for Technical Interoperability, Digital Repositories and Learning Design. For a useful quick introduction to each of these concepts please follow these web inks:
Learning Objects (Content Packages) & Learning Design
Educational Standards for Technical Interoperability: http://www.cetis.ac.uk/static/standards.html
1 INTRODUCTION AND OVERVIEW
The challenge facing education and commerce is much the same - how can they take advantage of the new digital media and technologies without having to pay a huge cost in terms of administration, legal fees, technical measures and insurance? In this, the issue of trust is central. How can the education and commercial sector conduct their business within this environment in such a way that the various creators, publishers and consumers of intellectual property retain their trust? A social or economic system that has low levels of trust tends to have much higher running costs the current patent wars in the IT industry being a case-in-point. In a low-trust system, expensive lawyers, contracts, technical measures and insurance are used as a substitute for behavioural constraint. So, if trust reduces transaction costs in an economy how can we build and maintain it in the context of digital networked environment? We argue that some of the main barriers to the success of such repositories are not especially technical but legal and cultural.
Thus, the project is interested in looking at the cultural issues that need to be addressed in developing DRM systems. It is very important to point out here that DRM systems cannot be understood solely from a technical point of view, they also involve important legal, social and cultural factors that cannot be ignored. We shall pick up on this ‘systems’ nature of DRM later in this document, especially when we discuss out TrustDR framework. It is concerned at how to arrive at an agreed legal expression of rights in the form of licences (especially those developed by the ‘Creative Commons’, http://creativecommons.org/) and user agreements from various groups of stakeholders, and whether there are any common patterns that can be identified and possibly transferred for use elsewhere. The project is also looking at how these expressions of rights can be included in rights metadata using a Digital Rights Expression Language (DREL). The project examines the types of protection and functionality that rights metadata may help provide, now and in the near future, and its possible utilisation in different parts of the lifecycle of a digital learning object. The project builds on previous JISC sponsored research and has produced a conceptual model for managing IPR in e-learning – The TrustDR framework.
For more information about the TrustDR project please visit our website
"It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith."
Intellectual Property Rights include:
In the work of the TrustDR project we are primarily concentrating on Copyright and Moral Rights.
The main categories of “work” protected in UK law are:
Ideas are not protected by copyright (but they can be protected under patent law), only the various physical manifestations of an intellectual work are. However, copyright is not a single entity, it should be viewed as a “bundle” of rights that can be sold or granted in many different ways (McCracken, 1995). The copyright owner may grant permission to a particular person or group to use a work in a certain way, in a particular format, or in a certain location, or for a certain amount of time.
Copyright ownership can arise automatically, or be formally transferred (Madhavan, 2006). Joint ownership may exist for multiple authors, and employer-employee relationships will be governed by relevant legislation. Written agreements allow copyright ownership to be assigned to another party, or licensed under specific terms.
Copyright law gives the owner of the copyright the right to prevent others doing certain acts with the copyright work, known as restricted acts. To break or infringe copyright law a person must have carried out a restricted act with a work that is protected by copyright.
While copyright law outlines restricted acts, it also allows certain permitted acts. UK law gives a concession known as “fair dealing”, where a work can be used for:
There are also specific educational exemptions, such as copying in the course of instruction or for the purpose of examination. To use a work, therefore you will need to do one of the following; take advantage of legal concessions, be granted a permission or licence, or to negotiate individually with the rights holder or their agent.
International treaties such as the Berne Convention and the TRIPS agreement  exist to protect intellectual property distributed between countries to a minimum level.
The main moral rights of the author are:
In order to use a work lawfully, it is therefore necessary to respect the moral rights of authors. Moral rights law vary from country to country with little or no provision in the USA or UK to considerable protection in parts of the EU (where it can be asserted effectively over works originating from the UK and the USA)
The increasing difficulties faced by educators attempting to ensure compliance with intellectual property legislation leads to concern over the transactional cost of reusing work available digitally – both their own and that of third parties. This work may not have much economic value, but its social and utility value may become much greater when shared widely. A report from the UK Institute for Public Policy Research (IPPR) looks at the evidence for changes in Intellectual Property regimes and notes that the IP debate should consider the question of value (Withers, 2006), to that we would add the notions of social value.
There is, however, a danger that commercial interests will override the interests of the educational sector:
A study from Consumers International (CI) recently looks at access to educational materials in developing nations, and contends that their copyright laws should take advantage of flexibilities under international treaties to allow public access to material for teaching purposes. It examines the provisions available, and finds that all of the 11 countries studied, including China, India and Malaysia, have given copyright owners far more protection than the intellectual property treaties they have signed up to require. “An important objective of this report is that it should serve to inform policy makers of the options available to them” (CI, 2006). The report also notes:
The Creative Commons (CC) movement builds on traditional copyright and is based on the notion of “some rights reserved”, providing a balance between creators and consumers of intellectual property. A set of licences allows rights to be offered under certain conditions, with “Attribution” being a base right for all. These licence terms are projected by presenting symbols and logos with distinct meanings along with the work, and referring to the full legal code. The intention is for the symbols to become widely recognised and so ease the uncertainty prevalent in using copyright material. These licenses are now widely used by individuals and institutions on the Internet.
A recent report (Barker, 2005). commissioned by public sector organisations in the UK has concluded the Creative Commons licences are suitable for use by the public sector as well as commercial organisations. The benefit of using licences to protect your work is that they have the power of contract law and are easier to enforce, a recent court ruling has shown that they are enforceable .
The main Creative Commons website has information on the range of licences available and tools to help publish your work online with a CC licence. A specific licence is available for developing nations 
In common with all CC licences, it provides attribution and copyright protection for authors. Additionally it provides freedoms to be exercised within developing nations, for example to allow translation of the work.
The TrustDR project is looking at how Creative Commons licences (and other solutions) may be applied to the sharing and reuse of digital learning materials in the UK education sector.
The TrustDR framework for managing IPR in e-learning
These first three stages all address the creation of a DRM policy.
We can see that the first 3 layers (the creation of a DRM policy) are mostly concerned with the legal and socio-cultural (values, attitudes etc.) aspects of DRM. But as we move through the layers towards the centre and on to the final 3 layers (the projection of a DRM policy) we move more towards a concern with the technical factors involved in DRM. The arrows pointing toward the top and bottom of the diagram indicate this implementation continuum in DRM that encapsulates both the legal and socio-cultural aspects and also the technical issues.
Lying at the centre of the 6 layers is an area where the legal and socio-cultural aspects and the technical issues meet and have to communicate with each other for the DRM system to work. Because of this we have called this point the ‘Legal and Technical Nexus’, and it is at this point where the use of off-the-shelf licences such as those developed by the Creative Commons and possible derivatives of those used by JORUM  (the national UK learning materials repository) would exist. Because these licences are both human and machine-readable they can perform this ‘nexus’ function.
A useful concept to consider is how you would place yourself and your work on this 6-stage mode. If you regard the 6 stages as a continuum where would you place your needs? If it is in the first 3 or 4 levels you might not need expensive DRM technical enforcement measures.
Note: A useful analogy may be drawn between this diagram and the Open Systems Interconnection model (http://en.wikipedia.org/wiki/Open_Systems_Interconnection--Reference_Model), which is used to simplify the description of complex computer network and communications systems by breaking them into simpler logical chunks. In a similar way our 6-layer model is used as a way of simplifying the DRM process for all those involved – so those involved in each stage of the model do not have to know about the other stages. The addition of the other elements to the 6 layers completes our TrustDR framework.
Creation – where the materials are produced. The
ADDIE (Analyse, Design, Develop, Implement, and Evaluate) model from the
Instructional Systems Design tradition is used for simplicity, but there
are many others that can be adopted.
Form for identifying media content, description, location, purpose and IPR status
We have been here before – the creation of the printing press revolutionised human communications and caused the same problems. Then, as now, this was followed by legislation to protect the intellectual property of the authors and publishers of books and printed materials in the form of the Statute of Anne in1610. Then, as now, this was accompanied by claims that illegal copying was causing great harm to the authors and publishers see the useful article by Ilkka Tuomi (Tuomi, 2004) that describes the development of IPR law. The introduction of the electrical telegraph in the first half of the 19th century made reliable high-speed communication available for the first time in human history. As Tom Standage (Standage, 1999) points out in The Victorian Internet:
“At the time, sending a message to someone over a 100 miles away took the best part of a day – the time it took a messenger travelling on horseback to cover the distance. This unavoidable delay had remained a constant for thousands of years: it was as much a fact of life for George Washington as it was for Henry VIII, or Charlemagne, or Julius Caesar.”
It is hard to overestimate the considerable impact that the resulting explosion in high-speed communication via the telegraph had on established social and business structures of the day.
More recently the last great leap forward in human communications has been the arrival of the internet and its continuing development to the present day, with an impact arguably greater than the arrival of the telegraph due to its ability to encompass all the existing media and communication forms. Yet as John Naughton (Naughton, 2000) points out in A Brief History of the Future: Origins of the Internet this amazing development was made possible in an environment where the control of IPR was at a low level.
Unfortunately we now live in a legal IPR environment marked by increasing paranoia, aggression, and acquisitiveness. At the level of the individual we are presented by the attempts to turn civil offences under copyright (copying) into criminal offences (the EU Copyright Directive and the US Digital Millennium Act). We are also facing media campaigns that are attempting to conflate possible individual copyright violation with piracy, organised crime and terrorism. We are also faced with high-profile campaigns that seek to prosecute those involved in the illegal sharing of music such as those waged in the USA in 2004 and that starting this year in the UK. This forces commercial and public sector organisations to open their records to inspection and can cause considerable disruption.
“Stifling innovation by allowing opportunistic companies to register business methods and software patents in the hope they can extract huge licensing fees from big technology companies at a later time” (Malone, S. 2006)
Four examples to illustrate this rapidly growing problem of ‘legalised piracy’:
eBay and MercExchange which reached the US supreme court on the 29th of March 2006. “MercExchange claims a patent on a technology that allows customers to buy products online at a fixed price while eBay made its name as an auctioneer with people bidding for goods, the alleged infringement occurred when it introduced the ‘Buy It Now’ Button.” (Malone, S. 2006)
A similar circumstance has occurred with ContentGuard, a company owned
by Microsoft, Time Warner and Thomson, has registered a patent for any
rights expression language / rights grammar. The consequences of such
a patent being upheld would be that no one else would be able to develop
a digital rights expression language (DREL) , an essential part of any
DRM system, without being obliged to pay ContentGuard for the privilege
(Vienna, S., G., & Brisbane, R., I., 2005). This has actually now
happened with the Open Mobile Alliance a consortium of large equipment
and content vendors(http://www.openmobilealliance.org/)
receiving a demand from ContentGuard (via the MPEG Licensing Agency) to
pay a levy for the right to implement a DRM system of their own invention.
A royalty payment of $1 is due for every device that is issued using the
OMA DRM specification and a further 1% of any transaction in which an
end user pays for delivery of a digital asset. This is despite the fact
that the OMA have invented their own DRM system!
The case of the Blackberry is equally worrying as the vexatious claim of patent and demand for payment has been acceded to despite the US federal government objecting. The BlackBerry is a highly successful wireless handheld device introduced in 1999 which supports push e-mail, mobile telephone, text messaging, web browsing and other wireless information services. It was developed by Research In Motion (RIM) and delivers information over the wireless data networks of cellular telephone companies. RIM was involved in a patent dispute with NTP, Inc., Virginia-based patent holding company which could have potentially forced RIM to suspend service to most Blackberry users in the United States. On 9 February 2006, the United States Department of Defense filed a brief stating that an injunction shutting down the Blackberry service while excluding government users was unworkable. The DOD also stated that the Blackberry was crucial for national security given the large number of government users. On 3 March 2006, after a stern warning from judge Spencer, RIM and NTP announced that they had settled their dispute. Under the terms of the settlement, RIM has agreed to pay NTP $612.5 million (USD). Story courtesy of Wikipedia at: http://en.wikipedia.org/wiki/NTP%2C_Inc.#Patent_Litigation
Microsoft has lost a $ 521 million lawsuit brought by Eolas Technologies and the University of California. Ludicrous as it sounds, Eolas was given a patent “for the embedding of small interactive programmes such as plug-ins, ‘applets’ etc. To comply with the ruling Microsoft has had to change the code for its browser to comply with the ruling – resulting in possible widespread disruption worldwide for developers and consumers. (Source: The Guardian April 20th 2006)
It has become an orthodoxy that the ‘market knows best’ and will sort it self out over time to fulfil the needs to society better than any government imposed legislation. What these four examples show is that this is not the case; society needs protection from these short-sighted interest groups and so does the world of commerce.
In addition to this, peer-to-peer networks such as BearShare, Kazaa and Bit torrents mean distributing illegal content has never been easier, literally in hours media such as a music track can be distributed internationally to thousands upon thousands of users.
With copying never having been easier Digital Rights Management has never been more aggressively enforced. The table below shows some methods of Digital Rights Management used to protect popular media.
Table 1 DRM methods for popular media
This software was not only allegedly installed without the users permission , but also stayed on the computer without the users knowledge. Security fears about the potential of hacker using the preinstalled rootkit for malicious purposes brought the saga to head when in late November 2005 a US rights body, The Electronic Frontier Foundation, and the state of Texas filed a class action against Sony BMG for violating the states Consumer Protection Against Computer Software act, seeking $100,000 per violation Aughton, S., (2005).
On a more international scale, Digital Rights Management has received some biting criticisms. “The first danger from DRM then is that technological measures used to restrict a work can override national development priorities as expressed in local copyright law. If your nation grants a sweeping exemption to copyright for works used to teach in rural schoolhouses, it will avail you naught in the face of DRM locks placed on works that admit no such exemption. … … domestic policy will not be able to stand up in the face of DRM” (Doctorow C., 2005).
Indeed an example of this can be found in the combination of the broadcasting industry and Windows Media Centre, a media delivery system written to focus primarily on media such as, music, TV and DVDs. The popular Sopranos television series broadcast in America by HBO, where mid series HBO trigger a flag preventing the series to be ‘taped’ to a local hard drive and then being burnt on CD. If an old-fashioned VCR system had been used, with no digital rights protection, the consumer could still have exercised their rights under fair use, however the DRM system has overturned the rights American law offered to them.
The Artic Monkeys, the authors of the fastest selling debut album in British history, initially distributed their music for free over the internet before they had a record contract. This ‘free’ marketing helped to create a buzz and interest in the band. Defying the traditional business models helped them sell more than 360,000 CDs.
Another example is Magnatune (http://magnatune.com), an online music retailer, who offers music streamed over the Internet at no charge. The user can then choose to buy it. Purchased music can be moved to a portable device such as an i-pod. Typically the customer can chose how much to pay, usually ranging between 5-18 USD.
The emergence of the i-tunes online music store operated by Apple went against conventional commercial wisdom by selling individual tracks instead of complete packages and has been a runaway success story that has since been much imitated. Much of the success of this venture rests on the ease of use of the system – making it easy for buyers to buy the amount of product they want is an important business advantage. All this is despite the fact the store and Apple are using some heavy-duty DRM enforcement measures that are quite restrictive and causing increasing unrest amongst customers. The success of i-tunes to date is a result ease of use, of knowing your market and ‘marketing cool’, how it develops as that market matures will be an interesting story.
Innovation is not the exclusive preserve of the music industry, many software companies have chosen open models for example Skype, offers its internet telephony software for free. Skype is one of the fastest growing online companies (Day, J., 2006). Users can call each other’s computers at no charge or buy Skype credits to call landlines at a greatly reduced rate, with over 6 million users concurrently online the percentage of costumers that purchases credits can be extremely low for this low overhead venture to still make money.
MySql, the open source database, is free to download and deploy. In addition to the actual software it’s website (http://www.mysql.com) offers training and printed manuals for a fee.
An interesting twist is also found in the gaming industry, where online role-playing games are now being offered free. Games such as Kingdom of Drakkar (http://www.kingdomofdrakkar.com/) and Conquer (http://www.conqueronline.com/) are free to play and users can pay for additional items or landscapes in the game.
On one hand we have the argument
“As you will see, the answer to ‘Which DRM will spur the most development in my nation?’ is ‘None at all’” (Doctorow C., P6 2005)
On the other we have the need to protect intellectual property and the rights of the producers. Without legal ownership of intellectual property it is hard to cultivate innovation. Without copyright the market could be flooded with distrust, intellectual theft and the impossible trading conditions of a piracy culture that might follow.
The paradox and challenge here for free-market democracies (and it is not a new one – the history of 19th century America is instructive in this regard) is that they must roll back the unjust and unreasonable influence and control of a minority of property owners to help the majority become more innovative and competitive for the benefit of all. As one of the critical voices (Pilger, 2003) in this debate has pointed out, the anti-globalisation protestors are naïve in saying that the power of the nation state has declined. Rather it has increased but instead of serving the social interests of its citizens is now more aligned to an emerging digital plutocracy. Unless the world community can reverse these attempts to privatise knowledge and information we risk forfeiting the creativity and innovation that has brought us this far. One of the ways we can support this process is to assert more control over our own IPR, particularly by the use of licensing schemes and engage in the debate about the future development of IPR laws.
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This paper deals with real activities involving digital material in education and the implications for managing intellectual property in this context. It discusses DRM in a broad sense rather than purely technical measures for protection of content. The phenomenon of disaggregation of content and the changing nature of distribution platforms are highlighted as impacting on rights management. In discussing the impact of IP laws, Robson suggests that “the shift of responsibility for rights management from societal institutions to technological solutions will be accentuated” (p6) and this will require increasing standardization to allow interoperability.
The paper appears to illustrate the dilemma faced by attempting to transfer traditional models of rights management to the digital environment (which then requires technical measures), rather than creating new models for sharing resources.