Re: What is an "appropriate manner" when reserving, not granting, a right?

Hi Bob, 

> under EU law, what is necessary to establish an "appropriate manner" for expressing reservations? 

The EU Commission didn't give more details about the limits of this "appropriate manner". We consider this term meaning: "a manner which makes consensus between the different parties", the main parties being content publishers, TDM actors, and the EU Commission. More practically, we consider that the "manner" must be a specification approved by an open community of stakeholders from the publishing + TDM/AI worlds.

> One can reasonably object to any specific manner for expressing reservations by simply saying that they had no reason to understand or respect that form of expression.

The Directive is clear, and the national laws that derive from it also: if a content publisher reserves some rights in a manner that has been somewhat standardized, he can sue a miner who is using his content.  

The issue we are all facing is therefore the fragmentation of these possible "appropriate" techniques. There are now efforts to make people engaged in such specifications talk together, in the hope that they will converge. Giulia will soon come back to this group with some news about such an effort. 

Every organization creating such a specification must make good efforts to communicate about its work. But it is really time also for TDM and AI actors to scan the Web for discovering these efforts and participate in their evolution. 

Our Community Group has been wide open to every stakeholder, both content publishers from different horizons and TDM or AI actors. This is explicitly why we decided to open this group in the W3C, where TDM and AI are well represented.  We have communicated about it at different events. We are liaising with other initiatives and trying to achieve complementarity and limit fragmentation. We are open to the evolution of this specification if necessary. 

> "it should only be considered appropriate to reserve those rights by the use of machine-readable means, including metadata and terms and conditions of a website or a service."

We have some reasons to believe that the "terms and conditions" part was added by lawyers in a rush, with no understanding that terms and conditions are not machine-readable in the usual sense. 

> can such a manner be defined by some non-state organization, such as the W3C, without explicit adoption or endorsement by the state via legislation or regulation?

The EU Commission will not give clearer guidance (we tried) nor choose one technique by legislation or regulation. 
From what I understand, the EU Commissioners are expecting that a limited number of standards will gain success and the others will disappear; natural selection. 
 
Best regards
Laurent Le Meur


 

> Le 7 juil. 2023 à 20:06, Bob Wyman <bob@wyman.us> a écrit :
> 
> Please forgive any potential misunderstandings by one new to this group...
> 
> I would appreciate greatly if someone could explain what is meant by the term "appropriate manner" in EU DSM Article 4 and what would be necessary to establish that the TDM Reservation Protocol <https://github.com/w3c/tdm-reservation-protocol/tree/main>, or some other method, is such an appropriate manner.
> 
> It seems to me that the requirements for expressing an effective and actionable reservation of rights are likely to be significantly more rigorous than the requirements for expressing an effective grant of rights. 
> 
> One who wishes to benefit from a granted right can comfortably choose to rely on a wide range of methods that others might use to express such grants. One might, for instance, rely on human readable text, or a Creative Commons license, or some ODRL embedded within, or associated with, some object. While there may be many ways in which such grants are expressed, it will often be very much in the interest of those who wish to benefit from such grants to understand a broad range of methods for expressing such grants.
> 
> However, one who wishes to exercise a right which is normally granted by law, but which, in an exceptional case, may be reserved by another, is likely to insist that the manner in which a reservation is expressed must conform to some precise and well-known form which has been explicitly sanctioned by some applicable law or regulation. Clearly, this insistence will often be considered reasonable since there already exist a multiplicity of proposals for Rights Expression Languages, each having various states of formal definition and degrees of adoption. One can reasonably object to any specific manner for expressing reservations by simply saying that they had no reason to understand or respect that form of expression.
> 
> The reasonableness of a text or data miner's objections to some form of expression is probably greatest when the reservation is expressed somewhere outside the particular data of interest. For instance, if it is in a file like robots.txt or in a .well-known file. The miner can simply say that there exists no law requiring one to seek out reservations that might, or might not, exist in a variety of obscure locations. On the other hand, as noted before, one who wishes to benefit from the grant of a right is probably highly motivated to do whatever is necessary to find such grants. 
> 
> The recitals in the EU DSM say:
> "it should only be considered appropriate to reserve those rights by the use of machine-readable means, including metadata and terms and conditions of a website or a service."
> But, no guidance is provided for determining which machine-readable means meet the requirements or how one is supposed to find "terms and conditions" that might include them. Of course, if this text were read to mean "any machine readable means," the effect would be to nullify the law since it would be practically impossible for any miner to prove the negative -- that there was no machine-readable expression present -- even if it was in some unknown or obscure format.
> 
> So, under EU law, what is necessary to establish an "appropriate manner" for expressing reservations? Also, can such a manner be defined by some non-state organization, such as the W3C, without explicit adoption or endorsement by the state via legislation or regulation?
> 
> bob wyman
>