Supporting Limits on Copyright Exclusivity in a Rights Expression Language

Along the lines of David Parrott's excellent posting, I refer members of this
list to the following:

http://xml.coverpages.org/OASIS-SLTPPC-EPIC-8-13-02.pdf

Mulligan, D., Burstein, A., and Erickson, J. Supporting Limits on Copyright
Exclusivity in a Rights Expression Language Standard. A requirements submission
to the OASIS Rights Language Technical Committee. On behalf of The Samuelson
Law, Technology & Public Policy Clinic, and The Electronic Privacy Information
Center. August 13, 2002.

From the Introduction:

Copyright law grants certain rights to purchasers and other users of copyrighted
works. It is neither a legal nor a practical requirement for users to declare
(or claim) these rights explicitly in order to enjoy them.  While the public's
legal rights cannot be altered by Digital Rights Management (DRM) systems per
se, we can imagine scenarios in which DRM systems may require users to make
these kinds of declarations, in order to work around inherent technical
limitations.  It is therefore essential that a rights expression language (REL)
provide the vocabulary necessary for individuals to express, in a
straightforward way, the rights that copyright law grants them to use materials.
The user's claim of right would provide the essential information for a
usage-rights issuing agency to give the user the technical capability to use the
work in a particular way.

For the purposes of this discussion we will set aside the question of whether
contract law may qualify (or narrow) the rights that a recipient of a work has
under copyright law, acknowledging that there are contexts in which a party may
wish to narrow the rights it grants to the recipient of a work.  Outside the
context of the relationships created by copyright between rights holders and
users, there are contractual relationships that the REL must also support. For
example an employer may want to control employee use of company information.  In
many instances it is important that both parties in the relationship be able to
assert their rights and/or desired terms.  True negotiation between parties
requires that, at a minimum, the REL provide the vocabulary and syntax to
support bi-directional exchanges. Otherwise, the rights transaction reduces to
the mere request for and acceptance of an offer of permissions asserted by the
rights holder.

This document therefore suggests certain accommodations that DRM architectures,
and especially their rights expression language components, must make to
adequately express certain core principles of copyright law. Rights holders must
have the means to express that a work is available on terms that reflect
existing copyright law, as opposed to the limitations of a simple contract.  The
REL must also enable rights holders to express the more generous terms -i.e.
copyleft, with attribution - commonly attached to digital resources today. At a
minimum, recipients of works must have the ability to assert their rights as
recognized under copyright law, and have these assertions reflected in their
ability to use the work.  Extending an REL to support a broader range of
statements that reflect current law is, however; insufficient. The rights
messaging protocol (RMP) layer must also be extended to accommodate both the
downstream and upstream assertion of rights. We recognize that the RMP layer is
not currently within the scope of this discussion, but we believe that the
assumption of a one-way expression of rights has in part led to the current
deficiencies in the REL.

We will first review the DRM Reference Model, a generic view of how current DRM
systems operate and the basis for our discussion. Next, we review the general
copyright reference model and explore specific exceptions to authors' exclusive
rights.  We will then discuss and illustrate the tension between the DRM
Reference Model and the norms of copyright law and practice. In conclusion, we
recommend the establishment of a standardized rights messaging protocol and
recommend changes to the REL to increase its capacity to support
copyright-consistent expressions.  While these changes do not reconcile the DRM
Reference Model with the legal framework of copyright, they will enhance the
ability of DRM system specification to accommodate both purchasers and rights
holders who are concerned with maintaining fair use activities.

| John S. Erickson, Ph.D.
| Hewlett-Packard Laboratories
| PO Box 1158, Norwich, Vermont USA 05055
| 802-649-1683 (vox) 802-371-9796 (cell) 802-649-1695 (fax)
| john_erickson@hpl.hp.com         AIM/YIM/MSN: olyerickson

Received on Friday, 20 September 2002 10:29:31 UTC