p2pnet Feature:- Nicholas Bentley is an interesting person – a genuine renaissance man. He’s a designer and ebéniste (cabinet maker) living in France. But he spends all his spare time thinking about intellectual property issues.

“In my previous life I was a flight simulator engineer for British Airways, and before that I was trained in information processing,” he told p2pnet. “Hence, I’m an artist and engineer who always has the sharing and communication of information in the back of my mind. And this brings me to my current project of the last six years where I recognise that DRM will probably never work satisfactorily (you probably know all the issues), and that the Internet, technology and services such as p2p offers great opportunities, but also that artists and creators need to and ought to get paid.

“Analogue copyright achieved a balance between the technology (printing) and artists getting paid by limiting the production of physical copies and hence gave copies a trading value that was a substitute for the trade of intangible intellectual works. My proposed ‘DIPR Rights Office’ system makes the rights to a work (to reproduce it, to transfer rights, to trade rights, the right to adsorb the work) the trading commodity and regulates this trade with an infrastructure of peer-to-peer ‘offices’ on the Internet that act as rights agents for producers, distributors and consumers. Once this trade in rights becomes established copies become unimportant and the technology such as P2P is free to optimise the transfer of copies to whomever has the ‘right’ to access the work.

“This is a complex philosophy that is not clear to many in the IP field. Copyright lawyers and the DRM folks can’t think of anything other than regulating copies, it is called COPYright after all.

“On the other side, the Creative Commons and the free software types are sure I must be slipping DRM (ie, control of copies) into the system somewhere and hence don’t want to discuss it."

Is copyright still on the right track? – he asks. Are DRM systems and Creative Commons licences the only solutions that can support copyright in the digital world?

“I’d like to open up the discussion ……”

Read on >>>>>>>>>>>>>>>>>>>>>>>>

Managing copyright in a digital world
By Nicholas Bentley – An introduction to the contributions model and the Rights Office System

This article presents a summary of the Intellectual Contributions (Bentley 2005) philosophy and the Rights Office system (Bentley et al. 2005) and explains how these ideas might provide an alternative model for regulating intellectual works in the information society. Under the Rights Office system the right of access to intellectual works is considered paramount and the regulation of copies takes a secondary role. This simple conceptual step makes restricting the distribution of copies by technical measures unnecessary, allows legal copies to compete with illegal manifestations, and introduces a host of social benefits in the spirit of a balanced copyright regime. Analogue copyright is reviewed in the light of a contributions model and some of the shortcomings of prominent digital implementations of copyright (DRM, Creative Commons, levy systems) are highlighted.

Intellectual contributions
Many people tend to view copyright as a single stream process: authors produce works that are then edited, processed, and distributed to consumers that take in the content, and that is the end of it. More careful analysis suggests that this one-way stream of information is not the correct view and that the "contributions" that go towards a new work come from many sources. Authors and creators rely on many preceding works to feed their creativity either directly or indirectly. If we take a broader view of contributions, where contributions mean any support for the artist (payments, reviews, criticism, recognition, quotations, citations, and recommendations), the contributions model can be still more complex. In the broad context of the contributions model there are many users: some contribute directly to the intellectual content (creators of pre-existing works, the author[s], and the editor[s]), others contribute by way of the remuneration chain (distributors, reviewers and consumers). Figure 1 illustrates some of these activities.

Copyright in the analogue world grants the right of access to intellectual content to the consumer via the proxy of the physical copy (for instance, owning the book). Copyright gives the author the right to receive the contributions from potential users of the work via the proxy of granting her the sole right to print and distribute copies. However, limitations are put on the rights of the original author (first sale, term limits, fair use) to protect the contribution chain, allowing future authors to quote, cite, etc., and allowing consumers to pass-on the physical copy thus disbursing their investment.

Analogue copyright transforms each manifestation of the work into a private good (cf. Wikipedia) and thus provides the tangible structure to support the financial aspects of the contributions model. The limited supply of physical books can be traded to funnel funds to the rightsholder and the author can be identified via these tangible manifestations. Figure 2 shows the liaison between the public/private good and the tangible/intangible elements.

Moving to a digital world causes these manifestations to become intangible and the financial part of the contributions chain breaks down when multiple copies can easily travel far and wide. These digital manifestations loose their excludable and rivalrous status and effectively become public goods (cf. Wikipedia). Most attempts to maintain a viable contributions model in digital form either try to make the digital manifestations a private good again by locking up the content (e.g. DRM) or abandon any idea of restoring the private good status and hope for remuneration via another route (e.g. Creative Commons).

Rights Office system
The Rights Office system recognises that in the Intellectual Contributions model the finite creative efforts of the author are the important private good and that the author’s right to allow contributing consumers to share access to this rivalrous and excludable "effort" forms the fundamental aspect of any economic model. In the digital world the product of this collaborative effort produces a manifestation of the intellectual work that is a public good and the Rights Office system does not attempt to make these manifestations rivalrous or excludable. It does, however, insist that the contribution to the creative effort, whether intellectual or remuneration, is recognised in the form of two, unique, persistent, identifiers that record every transaction in the contributions chain. This recognition can be represented (see Figure 3) by a tangible layer in the contributions model that firmly establishes the rights of all users as a regulated resource.

In the Rights Office system, all rights to an intellectual work are recorded in a permanent, secure location on the Internet. The Rights Office System allocates a dual identifier to each work and further identifiers to any subsequent physical manifestations (copies) of the work. These identifiers are in the form of unique, permanent Universal Resource Identifiers (URI). The Handle system (cf. CNRI) might provide the persistent infrastructure for these dual identifiers but unlike the Digital Object Identifier system (cf. DOI) that uses one Handle name to identify a work, the Rights Office system uses the names to identify the rights of the users and only subsequently the work or the manifestation involved.

Throughout this paper, by way of an example, we will describe how an author and a consumer will record rights to an exchange of an intellectual work (see Figure 4) although the same principles apply to any user exchanging works in the system (e.g. publisher with distributor, distributor with consumer, etc.). A typical chain might be a publisher transferring distribution rights to a commercial service that then registers access rights to individual consumers.

As a right-of-access passes from author to consumer, the system goes through the following steps:

* Two rights identifiers are created; one for the author, recorded in the Authors Rights Office database (ARO), and one for the consumer, recorded in the Consumers Rights Office database (CRO).
* The ARO and the CRO exchange and record each other’s identifiers, thus linking the transfer of access rights to the work. The combination of these two identifiers is known as the Product Rights Descriptor (PRD). Thereafter, any copy of this manifestation will, as it goes through life, contain the unique PRD it was assigned.

In the Rights Office environment the independent dual office structure provides the one-to-one exchange that builds trust. Privacy is maintained because personal information is only held in the office that acts as an agent for a particular user and the identifiers attached to the product are effectively anonymous. Identified rights add value, especially for consumers, and more value can be introduced with business models that allow consumer participation in the success of the product. Potentially, these multiple, distributed "offices" on the web not only provide the backbone for the allocation of user rights but could also provide the "trusted" infrastructure for funds transfer and so might provide the framework necessary for widespread micro-payment transactions. The Rights Office environment therefore corresponds to the statement of Simon Nicholson that "… the combination of value, trust, and privacy will determine future digital services" (quoted in Guth et a. 2005).

Why will the Rights Office system work?
The first questions to arise are; "How does the Rights Office system work if there is no mechanical protection of copies?", "Surely unremunerated copies will spread everywhere?", and "What is the incentive for consumers to pay for content?" The short answer is that some copies will become widely distributed but we don’t care and the system does not try to track or directly control copies. Some examples on business methods and incentives:

* All copies regulated in the Rights Office system will be properly identified and so there is always the chance that a consumer coming across one of these copies will reward the rightsholder. The "chance" that the rightsholder will be rewarded becomes a significant possibility when the rights of the consumer are considered. For instance, the Indicare consumer survey found that "Consumers are willing to pay for more usage rights and device interoperability" (cf. Dufft et al. 2005). The Rights Office environment supports these rights, device transparency, and permanent access to the work. The reason why the identification will remain intact is that identified works compete on an equal footing, if not better, with any illegal, unidentified copies; there is no penalty for holding a properly identified copy so why risk holding an illegal copy?
* Copies can be given to family and friends but only one tier of copying is allowed. Someone who is given a copy in this way has no rights to make further copies.
* Sometimes, for the purposes of promotion say, it is a positive advantage that copies are widespread and the fact that these copies will provide a direct link to the rightsholder is a major advantage. "For independent publishers, wide exposure of their content is a prime promotional tool" (cf. Bohn 2005)
* The registered partnership between the rightsholder and the consumer allows for business models that reinforce the advantage of having bought rights to the content, e.g. discounts on future products, upgrades, even a model where the consumer could be encouraged to recommend the content to others and receive a partial refund if the third party purchases their own copy.
* Presale of rights to a work could be an option to cover production costs for the artist or author for example. As soon as the work is complete all registered rights holders would have instant access to the work.
* Damaging, unauthorised, third-party commercial use of a work in the Rights Office environment will be naturally limited for two reasons. Either, this unauthorised user will be issuing new identifiers and will risk having his or her illegal act traced to them, or, they will be passing on works to another consumer who won’t be given their own identifier. This second act will be unattractive because the receiving consumer could either have probably obtained a "free" copy elsewhere or could have bought a legal copy with all the rights that come with it.

Contributions vs other regimes
All the articles from the July issue of the INDICARE Monitor (cf. INDICARE Monitor) consider DRM to be the main contender for regulating commercial uses of copyrighted material in a digital world. Creative Commons is usually relegated to the non-commercial sidelines with the odd exception of the likes of Magnatune (cf. Buckman). Here we examine some of the limitations of the various solutions and at the same time compare them to the contributions model.

Contributions vs DRM
When someone buys an analogue book they create a new intellectual contributions chain. There is only ever one excludable book in this chain (the first one) and this helps define the monetary value to be placed on this chain. If a digital copy of this book is introduced into a new chain the work can be reproduced indefinitely, easily distributed along the new chain (even in a branching fashion) and these public good characteristics make the value of this contribution chain uncertain. DRM, i.e. technology that controls who and how users can use content, attempts to restore a known value to this chain by limiting copies (making them excludable again). The ideal might be said to be a limit of one copy as in the analogue world.

There are potential disadvantages to this DRM modelling of the analogue world from the intellectual contributions point of view:

* The limit of one copy without regard to "fair use" could disrupt the citation feedback chain;
* The "first sale" doctrine, which created a contributing chain, allowing a buyer to recoup some of his contribution while furthering the distribution of the work, could be disrupted; and
* Most significant, chasing the analogue model of copyright destroys the potential advantages of digital distribution. i.e. speed of transmission, access to a wider community, lower reproduction and distribution costs.

The Rights Office system removes the need for any control of content at the hardware level or in the realm of the individual user and hence could remove the considerable technical burden of controlling content from source to destination. The burden of control and regulation is shifted to the "Office" level, where protocols will have to be established and the exchange of rights identifiers fully protected, however this will be orders of magnitude simpler than the full scale DRM approach. Also, all the complexity is one step removed from the average consumer.

Two recent Indicare articles (cf. Knopf 2005, Tyrväinen 2005) argue the benefits to DRM systems if they were to support Fair Use and other copyright exceptions and they offer technical solutions for achieving this. The benefits include trust and consumer acceptance. The Rights Office system, in contrast, considers these exceptions as vitally important and even goes so far as to licence the user to make unlimited copies (provided the identification rules are met). The rational of the Rights Office system is that consumer "rights" are so fundamental to the operation of the contributions model that they should be transferable to the consumer and that once you have taken this step and instituted a system to regulate these rights any form of DRM becomes redundant and could even have a negative impact on the operation of the system.

Contributions vs Creative Commons
Creative Commons and Rights Office both support the freedom of the rightsholder to choose how they distribute their work and what rights they choose to withhold. Like Creative Commons the Rights Office system is founded on copyright and will rely on a series of licences to specify how the work can be used by third parties. The Rights Office also supports the notion that if someone has a work made available to them they are allowed to absorb the content, thus supporting the "unregulated use" where anyone can read the book (cf. Lessig 2002).

Rights Office differs from Creative Commons as follows:

* The Rights Office licences are granted to individuals and not issued as open licenses. This is of fundamental importance as it establishes the one-to-one relationship between the rightsholder and the user that is essential for the contributions model and at the same time forms the basis of any commercial transaction.
* Some of the Rights Office licences allow the user to pass on "rights" to third parties. This again is of significant importance because it can establish the user as both a contributor and recipient in the contributions chain and this inclusiveness will lead to more support for the original rightsholder.

To give an example of just one of the licenses in the Rights Office environment, the general licence granted to the average purchasing consumer might start something like this in common deed terms:

The consumer who holds a valid identifier to this product is allowed to make unlimited copies to protect their access to the work provided that the product and its identifiers remain intact and unmodified.

Note how this might lead to the consumer making a copy available to a third party, a friend say, however this third party has no rights to do anything with the product, not copy it, pass it on, nothing accept her basic unregulated use of absorbing the content.

The Rights Office system also offers the exciting possibility of porting some of the Creative Commons licences into the Rights Office environment where they would be able to compete on an equal footing with more restrictive licenses.

Contributions vs levies
Levies or flat taxes on hardware or services have been proposed and enacted in some cases in an attempt to reward artists for private copying and other uses of the copyrighted work (cf. Tan 2004). One disadvantage of levies is that they are indiscriminate and therefore penalise non-copyright related uses of the service or hardware. Widespread use of the Rights Office system could remove the need for levies because of the possibility of directly rewarding the rightsholder. A second objection to levies is the lack of a means to fairly track usage and funnel funds to the artist in proportion to the use of their work. If it were decided that some levies were still required in the future the persistent identifications generated by the Rights Office system could provide the means to track usage.

Rights Office development status
If the will was there to establish a Rights Office system there is no obvious legal or technical impediment to doing so. The fact that no central control of the numerous distributed Rights Offices is required just as there is no central control of the Web makes the possibility of establishing a global system more feasible. Users who decide to use Rights Office could have their products compete with other intellectual property distribution methods and the best would win out. Some of the practical obstacles and steps to be taken can be listed as follows:

* Promotion of the subtle principles involved in exchanging rights in the Rights Office system, such as, how the independent Rights Offices will tend to be self regulating, and how legal copies can compete with illegal copies.
* Development of open Rights Office protocols.
* Development of an initial set of standard licenses.
* Development/adoption of the appropriate persistent identifier framework.
* Implementation of a basic Office system and user interface.
* Enforcement of the principle that a work should not be separated from its identifiers would need to be vigorously supported with a publicity campaign and, where necessary, legal sanctions.

Bottom line
The Rights Office proposal offers a formal system for regulating copyrighted works in a digital environment that removes the need to restrict digital copies by DRM or any other technological solution. Distributed "Rights Offices" provide a self-regulating, end-to-end rights trading environment that can support many business models from free promotional distribution to restricted, single customer streaming models while maintaining privacy and allowing for copyright limitations. Maybe the "bottom line" in the digital files of the future should contain the Product Rights Descriptor, the identifiers that establish the rights of access of all users, along side the copyright © – Document Product Rights Descriptor:

http://www.commonrights.com/RightsOffice/ARO-126.htm#ARO1

http://www.commonrights.com/RightsOffice/CRO-500-CRO1.htm

Sources

* Bentley, Nicholas (2005): Intellectual Contributions; http://www.omidyar.net/group/intellectual-contributions/ws/ic_rights
* Bentley, Nicholas et al (2005).: Rights office and distributed intellectual property rights (DIPR) system; http://www.commonrights.com
* Bohn, Philipp (2005): eBooks – The stony road to success and the role of DRM. INDIARE Monitor Vol. 2, No 5, July 2005; http://www.indicare.org/tiki-read_article.php?articleId=127
* Buckman, John: Magnatune Embraces Podcasting. Interview by Podcasting News; http://www.podcastingnews.com/articles/Magnatune_Embraces_Podcas.htm
* CNRI (Corporation for National Research Initiatives): Handle System; http://www.handle.net/
* Creative Commons: http://creativecommons.org/
* DOI (Digital Object Identifier System): http://www.doi.org/
* Dufft et al. (2005): Digital Music Usage and DRM – Results from an European Consumer Survey, Berlin, May 2005; http://www.indicare.org/survey (section 4.2)
* Guth, Susanne; Iannella, Renato, Serrão, Carlos (2005): ODRL workshop 2005 report. INDICARE Monitor, Vol. 2, No 5, July 2005; http://www.indicare.org/tiki-read_article.php?articleId=126
* INDICARE Monitor, Vol. 2, No 5, July 2005; http://www.indicare.org/tiki-page.php?pageName=IndicareMonitor#TOCV2N5
* Knopf, Dominik (2005): How to implement copyright exceptions in DRM systems. INDICARE Monitor, Vol. 2, No 1, March 2005; http://www.indicare.org/tiki-read_article.php?articleId=87
* Lessig, Lawrence: Free Culture. Keynote from OSCON 2002; http://www.oreillynet.com/pub/a/policy/2002/08/15/lessig.html
* Tan, Sze: Levies: A Possible Panacea. Posted to Mailing list of "Law in the Internet Society," Columbia Law School on 21 Nov 2004; http://emoglen.law.columbia.edu/LIS/discuss/118.html
* Tyrväinen, Pasi (2005): Fair use licensing in library context. INDICARE Monitor, Vol. 2, No 2, April 2005; http://www.indicare.org/tiki-read_article.php?articleId=94
* Wikipedia: Private good; http://en.wikipedia.org/wiki/Private_good
* Wikipedia: Public good; http://en.wikipedia.org/wiki/Public_good

Links:

Common Rights – http://www.commonrights.com/ web site
Intellectual Contributions – http://www.omidyar.net/group/intellectual-contributions/ws/index/
Discussion on Omidyar – http://www.omidyar.net/home/ net

First posted 26/08/05; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=133

Nicholas Bentley – Rémuzat, France

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