International Association of Libraries and Museums of the Performing Arts

Société Internationale des Bibliothèques et des Musées des Arts du Spectacle

The Multimedia Museum

Copyright Problems of the Digital Environment

Dr P. Bernt Hugenholtz
Institute for Information Law
University of Amsterdam
e-mail: hugenholtz@jur.uva.nl

Winds of Change - New Technology

21st International Congress

Helsinki, 31 August - 6 September 1996

1. Introduction

Musea, libraries and other intermediaries new to the brave new world of multimedia are discovering a terrible truth. Now that the technology is finally available, and affordable, to create the "virtual museum", the "virtual library" or simply provide large-scale access to existing collections, it's the law that intervenes. Copyright law, to be sure.

According to the Financial Times "a battle between copyright holders and multimedia publishers threatens to obstruct the emerging market" (Financial Times, 13 July 1993, p.7). There is more than a measure of truth in this statement. The multimedia world is, indeed, struggling with difficult licensing problems. From time to time, multimedia producers run into licensing problems so complex that further development of the product is aborted.

In this presentation, I shall concentrate on the problems of acquiring rights for producing and publishing a multimedia production. I shall look at these problems from the multimedia producer's perspective. I shall not discuss the peculiarities of licensing the finished multimedia product for distribution. But first, let's have a closer look at that phenomenon that is central to our discussion: multimedia.

2. Multimedia

So what are multimedia? Multimedia is, to say the least, a rather diffuse notion. Perhaps this lack of definitional clarity is the very essence of multimedia. The notion of multimedia implies, at least, the delivery of digitalized information in mixed mode. Multimedia information products combine text, sound and visual (still or moving) data. An other distinctive feature of multimedia is interactivity. Users may interact with the information stored in the multimedia product and retrieve information in customised form.

As has been observed before, the term "multimedia" is a misnomer. The very essence of a multimedia programme is that is carries a multiplicity of works in a variety of modes on a single medium. What makes multimedia really different from traditional information products and services is a much richer variety of underlying works. The typical multimedia product contains graphics, film, video, music, photographs, paintings, animation, text, data, maps, games, and multimedia software. The typical multimedia product is a blend of practically all categories of works protected by copyright law.

Multimedia products may be distribute either off-line, i.e. on information carriers (CD-I, CD-ROM, 3DO, software diskette) or on-line, i.e. via cable systems, local area networks or telecommunication networks. The information superhighways of the future will carry a lot of multimedia programmes.

3. The Information Superhighway

The complex problems of multimedia licensing are amplified by the emerging information superhighway, the telecommunications infrastructure of the future. The information superhighway represents the integrated, broad-band, high-speed, general-purpose telecommunications network of the coming century. The superhighway is not a single physical network, but a conglomerate of local, regional, national and transnational telecommunications infrastructures, interlinked to form a global information superhighway. In the superhighway a variety of existing telecommunications infrastructures, such as the telephone network, cable networks, satellite networks and broadcasting stations will converge.

The superhighway will carry data, text, audio, video and images at high speed and high fidelity. As an integrated "network of existing networks", the superhighway will carry both digital and analogue signals. In contrast to most existing cable networks, the superhighway will permit interactive, two-way communication on the network. Information can be uploaded and downloaded to and from any point in the network; consumers will be able to receive information on individual demand. Conversely, information users may become information providers as well.

Today, more than 25 million computer users are linked on a global scale by the Internet, the forerunner of the information superhighway. Internet users all over the world have direct access to vast quantities of text, data, maps, photographs, computer games, still and moving images, and sound recordings. Spectacular advances in network fidelity, data compression and storage capacity will enable the Internet (or any other computerised telecommunication network) to eventually carry the complete Berne Convention catalogue of works.

The complicated copyright problems of the superhighway are presently being discussed at different national and international levels. In September 1995, the Working Group on Intellectual Property Rights of the National Information Infrastruicture (NIl) Task Force issued a so-called White Paper containing proposals to adapt the U.S. Copyright Act to the digital environment. Almost simultaneously, the European Commission (DG XV) published a Green Paper on "Copyright and related rights in the information society", outlining the Commission's perspective of the copyright problems of the information superhighway. On the international level, proposals are underway to update the major treaties in the field of copyrights and neighbouring rights, the Berne and Rome Conventions, by a "Protocol" and a "New Instrument" respectively, with a view to the emerging digital networked environment. Unfortunately, the proposals which are presently on the table reflect mainly the interests of right owners and producers, to the detriment of intermediaries and end users.

4. Copyright-related Problems of Multimedia

4.1 Copyright in general

Copyright law protects works of literature and art. Producers of original works are granted a catalogue of exclusive right: rights of reproduction, adaptation, publication, public performance, etc. The Berne Convention of 1886 provides the international framework of copyright protection, setting minimum standards for protection and applying the principle of national treatment. Under this principle, foreign authors from Berne Convention countries are treated as nationals of the state where copyright protection is sought.

In nearly all countries, the exclusive rights granted under copyright law are limited by a set of statutory limitations, some of which may be relevant to multimedia projects undertaken by musea or libraries, e.g. privileges for scientific research, classroom education, library privileges, etc. The scope and purpose of these limitations varies dramatically from country to country.

In electronic environments, copyright probably includes an exclusive use. According to Article 4(a) of the European Council Directive on the legal protection of computer programs, the restricted acts include:

"... the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole. Insofar as loading, displaying, running, transmission or storage of the computer program necessitates such reproduction, such acts shall be subject to authorization of the right holder".

The Council Directive on the legal protection of databases, which was adopted in March, 1996, contains similar language.

Following a 1993 Council Directive, the term of copyright protection has been extended by 20 years. Thus the German term of "life plus seventy" has become the European standard. Surprisingly, the Directive has caused copyrights that already had expired, to revive. Unfortunately, the Directive is unclear as to whom the revived copyrights will revert to: the original author or the last copyright owner.

Copyright vests in the creator of the work: the author. In many countries copyrights in works made under employment contracts are allocated to the author's employer. In most countries, rights in audiovisual works (films, television programmes and video productions) are concentrated in the producer, enabling the producer to exploit the work without having to deal with a multitude of copyright owners.

4.2 Restricted acts

The incorporation and ensuing exploitation of copyright works in multimedia products qualify as a number of restricted acts. The multimedia producer must secure rights or licenses for all the relevant acts. The following acts may be distinguished:

• Adaptation: the original work will be "tailored" prior to incorporation.
• Fixation: the work will be fixed in a tangible medium of expression, such as a master tape.
• Reproduction: the production of identical copies of the multimedia product.
• Publication: the distribution of copies of the multimedia product.
• Communication to the public: the dissemination of the multimedia work through the Internet or other electronic networks.
• Use: the reproduction (in RAM memory and on screen) by the end user.

4.3 Moral rights

More problems ahead: moral rights. Even after clearing all relevant exploitation rights, the copyright coast still isn't clear. In all Berne Convention states authors enjoy specific rights to protect their works against distortion. These moral rights are mostly inalienable; they cannot be transferred or assigned. In view of the endless possibilities of digital manipulation, both by the multimedia producer and the end user, the risks of moral rights infringement are substantial. Therefore, in many cases additional licenses must be secured directly from the authors of works underlying the multimedia product.

A 1993 study by the Tokyo Institute of Intellectual Property, commissioned by the Ministry of Intellectual Property of Japan (MITI), identifies the moral rights problem as one of the critical legal issues in developing multimedia products. It is suggested the validity of a waiver of the right of integrity must be established in Japanese law - consistent with the situation in the United States and the United Kingdom. Moreover, the study proposes to restrict the right of integrity to acts which are prejudicial to the author's reputation.

4.4 Neighbouring rights and rights of publicity

Multimedia producers may not content themselves with securing merely copyrights. Actors and other performing artists traditionally do not enjoy copyright protection. Instead, in most countries performers are granted so-called neighbouring rights ("droits voisins"), which are somewhat similar, if more limited in scope, than copyrights. Under the Rome Convention of 1960, which has been ratified by a large number of countries (not including the United States), neighbouring rights are also granted to phonogram producers and broadcasting organizations.

Moreover, photos and other materials identifying actors or (other) "famous" persons may be subject to specific exclusive rights, such as "portrait" rights or rights of publicity. Often these rights will overlap with underlying copyrights. For instance, a clip taken from a televised play will involve copyrights (book, dialogue, film), neighbouring rights (performances, broadcast programme) and rights of publicity (names and faces of well-known actors). The scope of neighbouring rights protection is comparable to copyright. Rights of publicity often lack a statutory basis; nature and scope differ considerably from country to country.

4.5 Who owns electronic rights?

A crucial problem for multimedia producers is to identify the party that holds the electronic rights in a particular work to be included in a multimedia production. This is especially problematic in cases of grants of rights or transfers predating the computer age. How should a broad transfer of rights executed in analogue times be interpreted in the light of multimedia exploitation? In some countries (notably Germany and the Netherlands) such a transfer will be narrowly construed in favour of the original grantor or licensor. Thus, a transfer of "all copyrights" to a book publisher will probably not include electronic rights, if publishing in electronic form was not originally intended. In other countries (notably France) the original grantor has a right to receive a "proportional" remuneration from the copyright owner for unforeseen forms of exploitation.

The problem of residual rights - rights that have remained with the original author of the work - appears to be a major obstacle in many multimedia deals. Needless to say, all parties concerned should have a close look at existing licenses and transfers. Moreover, prospective licensees are strongly advised to insist on solid warranties and indemnification clauses from parties claiming to own electronic rights.

5. Licensing Problems

Typically, multimedia products are made from a multitude of pre-existing works, owned by a multitude of copyright owners, exercising a multitude of - sometimes overlapping - rights. Adding to the producer's difficulties, right owners will belong to different segments of the entertainment and information industry (literature, performing arts, music, cinema, software, education), applying different licensing practises. Multimedia publishers wishing to acquire rights by the book might end up negotiating with hundreds or even thousands of right holders for one single multimedia product.

The following is an inventory of the most pressing licensing problems encountered by multimedia publishers:

• Multiplicity of rights
  Multimedia products are composed of multiple protected works. Moreover, multimedia exploitation involves a number of restrictive acts. The multimedia producer has a lot of rights to clear.
• Multiplicity of right owners
  Copyrights and related rights are rarely owned by one single entity. In practise, rights are divided along vertical and horizontal lines, for different modes of exploitation and different territories. Moreover, some rights will be exercised by agents or collective licensing societies. The multimedia producer has a lot of right owners to search for.
• Overlapping rights
  Individual items incorporated in multimedia products may be subject to overlapping rights: copyrights, neighbouring rights, rights of publicity, etc. Even if copyrights have expired, the multimedia producer must reckon with surviving rights of publicity or neighbouring rights.
• Legal insecurity
  Licensors of original materials may not know whether multimedia rights are available. In many cases, original authors have granted rights only for exploitation in traditional media. Current right holders, such as record companies, collection societies or film producers, may not have acquired all the rights necessary to license multimedia products. This legal insecurity is considered a serious problem in the multimedia business.
• Lack of established licensing practices
  Copyright owners are inclined to apply royalty schemes developed for traditional media. These schemes do not take into account the peculiarities of the multimedia product. For instance, in the music business mechanical royalties are sometimes calculated on a per-minute basis (United States). It would seem unfair to apply these schemes without reservation to interactive products.

In practice, multimedia producers are confronted with a bewildering variety of licensing schemes. Each "family of rights" has its own licensing tradition.

21st Congress

URL: http://www.sibmas.org/congresses/sibmas96/hels02.html