RE: Action vocabulary review by legal firm OLSWANG - update

All:

Today I have received a reply from OLSWANG on a few open issues - below with
notes (in green) about my inquiry sent to OLSWANG.

 

My personal comment on item 3: this raises at least the requirement to
better describe in the spec document the interaction between
permission/prohibition and constraint.

 

Michael

 

====================== the OLSWANG reply:

 

Dear Mr. Steidl,

 

Many thanks for your comments and clarifications. Assuming that you might
want to circulate this email, we provider our answers in English. 

 

1.     The action item "sublicense" sufficiently covers the actions
described in your email. (IPTC note: we explained to OLSWANG that the
intention of this action is to hand over the position of a licensor to the
assignee party of this Permission.)
"exclusiveSublicense" was only meant as an additional alternative, and as
specific variety of "Sublicense". If you think that such action item won't
be needed, then please just ignore and delete. Of course, if you think there
might be a need in the future to define the use as an exclusive sublicense,
then it might be helpful to keep the term.

 

2.     (IPTC note: we told OLSWANG not seeing a need for extractAndInsert as
by OLSWANG's change the definition of extract includes "to use" now.)
You could delete the action item "extract" and only keep "extractAndInsert".
Another option would be to also keep the action item "extract" but to
provide a different description, i.e., ""The Assigner permits/prohibits the
Assignee(s) to extract parts of the Asset and to store it". This would be a
narrowly defined action item of extracting and storing an Asset. It might be
systematically easier to choose this latter option, as it appears a little
odd to have an action "extractAndInsert" to be accompanied by a constraint
that (presumably) says "do not insert".

 

3.     (IPTC note: re the duties limitPeriod/limitTerritory proposed by
OLSWANG we told them that we can't see the need for creating duties which
cover what could be done by a constraint.)
No, you did not overlook anything. Indeed, "Duties" and "Constraints" fulfil
very similar functions, and most duties could also be expressed as
constraints, and vice versa. Therefore, it is sufficient, as you say, to
have teritorial and temporal constraints.

 

However, we would have one suggestion in this context. It appears to us that
a "constraint" is meant to limit the effect of a permitted action, whereas a
"duty" rather creates an additional obligation which is fairly independent
from the permitted (or prohibited) action. Therefore, a constraint probably
only makes sense in context of a permission, but not in context of a
prohibition. For example, if the action is to prohibit any reproduction, and
this is limited by a constraint to the territory of Germany, I doubt that
anyone would really understand this, or would rely on this to mean, that
anywhere outside Germany, the asset may be reproduced. Rather, one would
expect that for all territories but Germany a specific permission to
reproduce needs to be granted. Does this find your agreement?

 

If this is the case, then the difference between a constraint and a duty can
abstractly be explained by using two different legal concepts: it appears to
us that a constraint is meant to impose an absolute limitation on the
permission in the sense that the permission simply does not exist where the
constraint applies. Lawyers would also describe this as a "condition
precedent": The permission is only granted provided that the constraint is
observed or fulfilled. A duty, on the other hand, does not actually limit
the permission but creates an independent obligation. If this obligation is
not met, it can be enforced, but it does not affect the underlying
permission. Maybe this becomes clearer with an example: If the assigner
requires a payment, as compensation for the permission to reproduce, then
there are two possibilities (and indeed, both possibilities appear in the
ODRL Vocabulary): The assigner can chose the duty "pay", or the assigner can
chose the constraint "payAmount". In our understanding, there would be a
difference though: If the Assignee does not pay the required amount, and the
assigner has chosen a duty, then the reproduction of the asset will remain
permitted and legal. The Assigner will have to demand payment and,
eventually, enforce such claim in court. The assigner cannot prohibit the
Assignee to continue to reproduce the asset. In the other hand, if the
assigner chose the constraint "payAmount", then the permission would only
become valid if and when the Assigner has indeed made payment - as a
condition precedent. If the Assignee does not make payment, then he/she/it
may not reproduce the asset, and the Assigner can prevent him/her/it from
doing so. 

 

Now, because of this difference, it appears to us that the Assigner could be
given the choice which effect he/she/it wants to have: As every duty can
also be expressed as a constraint, if this is something that is particularly
important to the Assigner, then the Assigner would chose to use it as a
constraint. With other duties, or even constraints, this may not be so
important, or practical - for example because it something that needs to be
done after the action is performed (like "uninstall"). In that case, it
makes more sense, to choose the form of a duty. Of course, the overarching
explanations that explain what is an "identifier", what is a "duty" and what
is a "Constraint" would need to be more specific and clear to really ensure
(as far as at all possible in context of the ODRL language) that these legal
consequences are being created.  

 

 

Please let us you if you have any questions.

 

Many thanks and best regards,

 

Viola Bensinger

 

Dr. Viola Bensinger

Partner

Olswang Germany LLP

D +49 30 700 171-150

M +49 172 3809894

E  <mailto:viola.bensinger@olswang.com> viola.bensinger@olswang.com

http://signatures.olswang.com/images/logo_email_2007.jpg

 

 

From: Michael Steidl (IPTC) [mailto:mdirector@iptc.org] 
Sent: Thursday, July 17, 2014 1:14 PM
To: public-odrl@w3.org
Subject: Action vocabulary review by legal firm OLSWANG

 

ODRL Community:

 

In the past the question "will the definition of action X be accepted by a
lawyer" popped up from time to time and this fostered at IPTC the plan to
hand over the latest ODRL Action vocabulary draft to a legal firm for a deep
review and improving the legal quality of the vocabulary by that.

The draft was handed over in May and a few days ago we received a document
with OLSWANG's proposals of changes and a rich set of comments.

 

To provide an easy view on the current draft and the proposed changes we've
created a document presenting both side by side and adding a column with the
comments.

Find this document attached:
ODRL-Action-vocabulary-reviewedDRAFT-2014-07-16.pdf

 

And find attached as second document with generic comments on ODRL by
OLSWANG: OLSWANG-GenericComments-ODRL-RightsML-2014-07_2.pdf

 

>From our point of view this review raises the need for these decisions:

1)      Does the ODRL community agree to the minor modifications of the
wording of semantics and comments?

2)      Does ODRL cover digital content assets *and* physical object assets?
Only in this case the actions lease and lend make sense, says OLSWANG, else
they should be removed. (We feel this must be written down somewhere in the
specs.)

3)      OLSWANG sees a need in their comments that ODRL defines a legal
context for policies. The key issue is: the ODRL action vocabulary defines
about 30 actions, a policy permits 2 of them - what about the other actions?

4)      And OLSWANG points at the use case of having a textual license
contract as background for an ODRL policy - how to express this.

 

Thanks for having a look into the documents and sharing you conclusions.

 

Michael

 

Michael Steidl

Managing Director of the IPTC [mdirector@iptc.org]

International Press Telecommunications Council 
Web:  <http://www.iptc.org/> www.iptc.org - on Twitter
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