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Intellectual Property in a Fragmented World
 
Eamonn   Neylon
  Publishing Consultant
  RCP Consultants
81-83 Broadway
Didcot   Oxon  United Kingdom  OX11 7XF
Phone: +44 1235 510116
Fax: +44 1235 515302
Email: eamonn@rcp.co.uk Web: http://www.rcp.co.uk/
 
Biographical notice:
 
Eamonn Neylon
 
Eamonn Neylon has extensive experience in commercial publishing. He moved into electronic publishing early in his career and has many years experience. He created the first electronic journals system for the Internet using SGML. Eamonn has worked in scientific, legal and professional publishing in the fields of electronic production, product development, and marketing within The Thomson Corporation. He is currently a Publishing Consultant with RCP Consultants - the leading supplier of workflow management systems to publishers.
 
ABSTRACT:
copyright
fragment
 property 
 
As publishers embrace structured markup within document collections, the legal risks associated with use of those documents are not generally understood. What are the moral and legal implications of storing documents electronically for reuse? Use of fragments of documents to create new publications produces ownership issues. Protection against copyright infringement is provided by legal systems around the world, but, it is important to make infringement difficult by restricting electronic information interchange where it is not intended. Legislation for protecting the rights of the author and publisher are examined, and problems with that legislation highlighted. Additional precautions are advised to protect document collections and ensure that your intellectual property rights are not infringed.
 
 

Intellectual Property Rights
 
 
The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property.John Locke, 1690
 
Intellectual property is the right of ownership in the creative process. Innovative effort is legally protected for the commercial exploitation of the creator and their agents. Protection is granted through the devices of patents for industrial ideas and processes, trademarks to protect brand identity, and copyright to cover the expression of ideas. These rights are enshrined in laws which vary from country to country but the principles underlying the laws are universal and are expressed in treaties. Intellectual property also exists in the forms of trade secrets and de facto standards where secrecy can be leveraged in a competitive environment for perpetuity.
 
Publishers have always protected intellectual property through the device of copyright. In the past, this has been done without an appreciation of the role of the information manager within an organisation. In the electronic age, where perfect copies of a work can be made with very little effort, the publisher needs to prevent rights infringement pre-emptively as well as use the traditional legal action when infringement occurs.
 
 

What is Copyright?
 
Copyright is the right to make replicas of a work. A work is defined as the expression of an idea (rather than the idea itself) generated through a combination of skill, judgement, labour and capital. The exact definition of minimal effort required to create a work differs in each jurisdiction, but invariably it is a low threshold particularly in the case of literary works. Copyright assumes that an original recording of a work has been created from which copies can be derived.
 
The main treaty providing for the protection of copyright is the Berne Convention for the Protection of Literary and Artistic Works (1886). The Berne Convention has been signed by 96 countries. It requires member states to recognise the moral rights of integrity and attribution. These must be protected within the country's own legal system. It grants economic rights - the author has exclusive right to translate, reproduce, perform, or adapt protected works.
 
The minimum standards of protection must include: "every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression". It must grant the exclusive rights of authorisation to exploit. Works originating in one of the contracting States must be given the same protection in each of the other contracting States as the latter grants to the works of its own nationals, irrespective of compliance with any formality and independent of the existence of protection in the country of origin of the work.
 
The Berne Convention also provides for 'moral rights', that is, the right to claim authorship of a work and the right to object to any derogatory action to, that work which would be prejudicial to the author's honour or reputation.
 
Infringement of copyright occurs when a work is copied or when copies of a work are issued to the public, i.e. publication without consent. The key to interpretation here is the definition of public. This is usually adjudicated in the economic interests of the copyright holder as a principle. Defences used against the charge of copyright infringement include the granting of consent, where infringement is in the public interest, and fair dealing. Fair dealing can be argued where a substantial part of a work is copied for the purpose of research and private study, for review and criticism, and for educational purposes.
 
 

AuthorEntrepreneur Dichotomy
 
The first owner of copyright in a work is usually the author. It is usual for a publisher to seek the assignment of copyright and subsidiary rights for the duration of the copyright in exchange for royalty payments. The right to make copies of the work is often transferred to the entrepreneur who undertakes the commercial exploitation of the work. The author then maintains moral rights to prohibit any abusive forms of exploitation and be identified as the author of the work. The level of moral rights varies greatly between countries, but generally there is a balance between the author's moral and copyrights and the entrepreneur's rights. The law in Europe generally favours the author's copyright and so confers few moral rights. Author's rights are generally waived when the author is an employee of the entrepreneur.
 
Copyright has developed to protect either the author of a work or the entrepreneur exploiting the work. In jurisdictions where the entrepreneur's interests have gained precedence there is usually a moral right that the work cannot be used in an abusive manner. Laws have been developed to encourage commercial exploitation of original works and create an environment in which authors and entrepreneurs can thrive.
 
 

Copyright and Databases
 
Databases are collections of works or other materials arranged, stored and accessed by electronic means. The contents of a database may consist of copyright protected works and copying these by extraction infringes copyright laws. The database as a collection also gains protection . However there are problems with the existing copyright laws for example when a database contains public domain information such as names and addresses as a substantial part of its content. As such a compilation may not meet the minimal skill definition to warrant protection and so there is a obvious threat to the investment required to create such works.
 
Until very recently there has been no protection for databases per se. It is generally accepted that the basic principles of copyright protection still apply but there has been no mention of databases in the legislation. It is generally agreed that some adaptations and clarifications are required to ensure harmonisation in dealing with databases.
 
Two recent treaties the Copyright Treaty (1996) and the Performances and Phonograms Treaty (1996) have been introduced to cover issues that have arisen with the existing treaties. They were concluded in December 1996 and were open for signature until December 1997. They will come into force after 30 instruments of ratification or accession by States have been deposited with the World Intellectual Property Organization (WIPO). WIPO is one of the 16 specialised agencies of the United Nations system of organisations and is responsible for the administration of various multilateral treaties dealing with the legal and administrative aspects of intellectual property in the form of industrial property.
 
The WIPO Copyright Treaty explicitly mentions compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations. The Treaty obliges the Contracting Parties to provide legal remedies against the circumvention of technological measures (e.g. encryption) used to protect a work. Also explicitly mentioned is the removal or altering of information, such as certain data that identify a work or its authors, necessary for the management, e.g., licensing, collecting and distribution of royalties, of their rights.
 
To effect the treaty and encourage the creation of new databases the European Community has issued a directive on the legal protection of databases (Council Directive 96/9/EC) which member states are required to turn to legislation through the provision of statutory instruments.
 
The new database rights protect the work involved in collating information into useful and innovative forms. This prevents the unauthorised extraction of the whole or substantial part of a database with some exceptions. These relate to research, education and libraries for non-commercial teaching and research subject to a test of fair dealing. The four elements of the proposal are: the reproduction right, right of making available, distribution right and technological measures/rights management information. Only one element of the European recommendation goes beyond the WIPO recommendation - the obligatory exception which seeks to accommodate the needs of service and access providers.
 
The new directive requires that a lawful user of a database may do anything with a database which is necessary for the purpose of their task with the database - whether or not that act infringes copyright and despite any terms or conditions in an agreement of use. The maker of the database assumes first right of ownership as they have assumed the risk of investing in the database's creation.
 
The proposal exempts those copies from the reproduction right which are of a mere technical nature, are an integral part of another act, and have no separate economic significance. Certain forms of browsing or caching may thus not be subject to the control of the rightholder.
 
The directive is intended to explicitly offer protection to the creators of databases, but there are some details which have caused concern amongst publishers. In particular, opposition has been raised to the notion of 'optional exceptions' which can copy substantial parts of a database under particular circumstances has caused concern.
 
 

Fragmentation Problem
 
One of the basic requirements in document management is to generate on-demand individualised documents through dynamic document assembly. Document markup and structure allow the retrieval of the document fragments that are reassembled in whatever sequence is required. Document assembly can use application-domain-specific information in addition to the contents and the structure of a document collection. Supplementary information can be described, for example, in dependencies or conceptual hierarchies, and can reside in additional document markup, as well as in separate databases.
 
When a user expressing demands, appropriate documents or document fragments are found and returned, and the returned fragments are merged into a single uniform assembled document according to a new structure.
 
To illustrate the process of creating new documents from fragments of existing SGML documents consider the following simple DTD:
 
  <!DOCTYPE  article-abstracts  [
  <!ELEMENT  article-abstracts  (article-abstract*)>
  <!ELEMENT  article-abstract   (title, (author, affiliation)*, indexterm*,
      abstract)
  <!ELEMENT  title              (#PCDATA)
  <!ELEMENT  author             (#PCDATA)
  <!ELEMENT  affiliation        (#PCDATA)
  <!ELEMENT  indexterms         (#PCDATA)
  <!ELEMENT  abstract . . .
  ]>
 
This collection of abstracts of papers can be manipulated to generate a different structure such as a directory of authors and their affiliation according to a complimentary DTD:
 
    <!DOCTYPE     directory        (indexterm, intrest*)*
    <!ELEMENT    interest        (author, affiliation)
    <!ELEMENT    indexterms        (#PCDATA)
    <!ELEMENT    author        (#PCDATA)
    <!ELEMENT    affiliation        (#PCDATA)
 
There are many technologies can be used to achieve similar results. These are the structure-aware tools for manipulation that provide transformations either using standard SDQL methods or bespoke tools such as Omnimark, etc.
 
This process is similar to building tables of contents or indexes; but much more complex reformulation can be constructed from a given dataset given knowledge of the underlying data structure. With the placement of data mining tools on the desktops of corporate employees, knowledge of the underlying data structures is not even necessarily a prerequisite for derivative document construction.
 
 

Intellectual Property Management
 
The art of protecting and exploiting knowledge is known as Intellectual Property Management (IPM). IPM involves creating a strategy to clearly define and maximise the assignment of legal protection that exists, creating methods to prevent infringement of rights and seeking retribution where abuse occurs. IPM consists of four main activities identification/recognition, protection, marketing, licensing/exploitation.
 
 

Identification/recognition
 
It is important to be able to correctly identify works both to prove copyright ownership should disputes arise and to serve as notice that a particular work is protected under copyright. Only with suitable identification can IPM be achieved in electronically networked environments.
 
The Digital Object Identifier created by the American Association of Publishers is a good example of an industry initiative in technology for IPM in electronically networked environments. The allows a unique identifier to be assigned to a piece of content so that it can be tracked and located. This in turn facilitates computer-based registration and the transfer of intellectual property rights within a controlled environment.
 
In less controlled environments, authors and providers of multimedia data are reluctant to allow the distribution of their documents in a networked environment because the ease of copying and reproducing digital data is likely to encourage intellectual property rights violation. In such cases technologies such as the digital watermark become necessary for recording ownership in a non-reputable manner. A digital watermark is an identification code, permanently embedded into digital data, carrying information pertaining to copyright protection and data authentication. Since the watermark is embedded into the content itself, it does not require any new format standard, and it does not modify the data size.
 
 

Protection
 
Only after risk evaluation can the appropriate protection be deployed for a given set of circumstances. The evaluation of threat will assist in determining the most appropriate mechanism of protection and, from there, to design a strategic plan for protecting, marketing, and commercialising a work.
 
Analogous to network security protection can match the perceived value of that which is being protected. Layers of protection can often be applied to ensure that only intended users have access to a particular work and that it is only used in the intended manner.
 
One fundamental technology that underpins many protective mechanisms is encryption. Encryption is not foolproof and the possibility that sufficient resources could be deployed to grant access should be understood. Such an instance might be a patent communication which not only needs to withstand attacks using current technology but also attacks in the future for the duration of the messages value - usually twenty years. Encryption is effective for most purposes and can be deployed for any exchange between two parties that trust each other.
 
Knowing the identity of the user of a work is crucial in enforcing the grant of a licence to use a work. This can be achieved using technologies such as digital certificates, smart cards and in the future biometric devices.
 
Working on a web of trust principle, the X.509 standard relies on identity validation through the process of notary. Digital certificates play a key role in establishing confidence that electronic transactions are secure and trusted. A digital certificate binds a person's or company's identity to a digital key which can be used to conduct secure communications or transactions. This binding is accomplished through a strict assurance process conducted by a trusted third party which also electronically signs the digital certificate so that parties accepting it in a transaction have confidence in its origin. The digital certificate can then be attached to electronic transactions and communications as the critical authentication component. As the fundamental shift to electronic commerce accelerates, digital certificates will play a vital role in authenticating and securing electronic transactions and communications.
 
With a smart card, network computer users are authorised to access network-based information, databases, and services such as electronic mail, Internet applications, and electronic commerce. Smart cards store a card holder's personal information in its small, highly secure silicon chip. After inserting a smart card into a network computer, a personal identification number (PIN) is used to identify and authenticate the card holder. A smart card identifies each user to the network, eliminating the need to remember complex connect strings, phone numbers and other networking information. Once authorised, the user has access to applications, information and services from the network.
 
These technologies help to ensure that only approved users can access a work and should be deployed both when handling data pre-publication and when publishing the work. However these tools do not prevent abuse by those with access to the works. In the case of repurposing content, making it difficult to fragment data can in itself be a protective measure against infringement. Do not give users data mining tools if you are concerned about how they may use them.
 
 

Marketing
 
Managing intellectual property involves exploiting and well as protecting against unauthorised exploitation. Marketing is the main process by which intellectual property is exploited and includes development and implementation of appropriate marketing plans, and negotiation and drafting of publication and rights agreements. Other marketing activities (including marketability studies, and pursuit of potential licensees) for currently known and newly identified works, extend this directed marketing activity in a way that also promotes the skills and experience of the authors.
 
A new approach to marketing assumes that you want the materials to be accessible to as many potential users as possible. Superdistribution is an approach to distributing data in which it is made available freely and without restriction but is protected from modifications and modes of usage not authorised by its vendor. The concept was invented by Mori in 1983; it was first called the 'Software Service System'. Since 1987, work on superdistribution has been carried out by a committee of the Japan Electronics Industry Development Association (JEIDA), a non-profit industry-wide organisation known as the Super-distribution Technology Research Committee. This is an extension of the idea of public domain software.
 
 

Licensing/Exploitation
 
Once a potential licensee has been identified, a license agreement is negotiated that is fair to all parties. Intellectual property can be licensed exclusively or non-exclusively to a new or established company. In some cases, the author(s) will become involved in the ownership or operation of the licensing company.
 
 

Copyright Enforcement Litigation
 
Copyright piracy is the unauthorised copying, reproduction, distribution, performance, or manufacture of copyrighted products. Under international copyright and neighbouring rights treaties and World Trade Organisation rules, countries must give these products protection against piracy. However, copyright piracy thrives because many countries have inadequate copyright laws or their copyright laws are not enforced in accordance with international obligations and standards.
 
Piracy inflicts heavy damage to national economies. Piracy creates a hostile environment for local authors, composers, programmers, publishers and producers in which they cannot be properly rewarded with a return on their investments of creativity, intellect or capital. As local creators are discouraged from creative endeavours, national economies are deprived of tax revenues and revenues and jobs resulting from infrastructure that supports these industries, e.g. local distributors, retail, advertising etc. Cultural and technological development is also stunted. Copyright piracy is also a trade barrier. International firms and investors cannot do business in countries where their copyrighted products are not protected by adequate copyright laws or where enforcement agencies or courts are ineffective.
 
 

Conclusions
 
Although new legislation is being created to harmonise the protection of copyright in databases internationally, it is not enough to rely upon legal enforcement alone when considering intellectual property management. With the proliferation of tools capable of restructuring data for repurposing, it is important to tightly manage document collections to ensure that infringement does not take place whether consciously or not. Careful consideration should be given to authorisation management techniques and ensuring that large parts of document collections are not easily copied with the document structure information intact.
 
Bibliography
Intellectual Property Law, Butterworths, Jon Holyoak and Paul Torremans, 1995 0 406 05245 X
Selling Rights, Blueprint, Lynette Owen, Second Edition, 1994, 1 85713 007 3
Session chairs:   Table of contents   Indexes   Using XML in a Multi-Format Publishing Environment