Digital Rights Management
The End of Collecting Societies?
Published on 1. January 2005
Book
Hardback
255 pages
978-1-57823-201-7 (ISBN)
Description
The ubiquitous digitisation and the advent of Digital Rights Management Systems have created novel environments for content distribution and rights administration. The legal frameworks will indubitably have to evolve to match these new realities. The question whether the new technological infrastructures would render collective societies obsolete is part of this regulatory puzzle and needs to be adequately addressed in view of the balanced development of the Information Society. The present publication seeks to explore the different dimensions of collective rights management and to reassess the role of collecting societies in the digital era. The contributions of internationally renowned experts in the field of copyright and new technologies provide invaluable analyses from social and cultural policy, human rights and competition law aspects of the relationship "DRMs vs. Collective Societies" and elaborate on its future implications.
About the Contributors:
Jacques de Werra presently practices law in Geneva in the fields of intellectual property and corporate law. He is the co-director of the Geneva Art-Law Center and a member of the Board of the Swiss Forum for Communication Law.
Adolf Dietz is a renowned specialist of German, European and international copyright law as well as of intellectual property law of the countries in Central and Eastern Europe and of China.
Mihály Ficsor is President of the Hungarian Copyright Experts Council, Chairman of the Hungarian Copyright Forum, Director of the Center for Information Technology and Intellectual Property, and Chairman of the Central and Eastern European Copyright Alliance.
Urs Gasser is a research and teaching fellow at the Berkman Cetner for Internet and Society at Harvard Law School, and the executive director of the Research Center for Information Law at the University of St. Gallen.
Daniel Gervais is the Oslers Professor of Technology Law at the Faculty of Law of the University of Ottawa. Prior to his teaching career, Daniel Gervais was successively Head of Section at the World Intellectual Property Organisation (WIPO).
Brigitte Linder is a member of the Bar of Berlin/Germany and practises as Registered European Lawyer at Serle Court in London.
Catherine Mettraux Kauthen is currently a legal officer in the Copyright and Neighbouring Rights Division of the Swiss Federal Institute of Intellectual Property (IPI).
Alfred Meyer is a member of the Zurich bar and was previously appointed chief executive of the Swiss society for the rights of authors of musical works.
Hélène de Montluc is the Head of the Bureau de la propriété intellectuelle in Paris since 1987.
Peter Mosimann is currently the President of the Swiss Association of Copyright and Neighboring Rights users (DUN).
John Palfrey is Executive Director of the Berkman Center for Internet and Society at Harvard Law School.
Vittorio Ragonesi is presently a Judge of the Italian Supreme Court (Corte Suprema di Cassazione).
Yolanda Schweri practices at the law firm Brem & Borer in Zurch and is the General Secretary of Suisseculture, the umbrella organisation of Swiss author's and performing artist's associations.
Dorothea Senn is a senior research fellow at the Institute for Economic Law at the University of Bern.
Adriano Viganò is mainly engaged in consulting and litigating for clients in the entertainment, arts and media industry. He is the personal advisor to the Swiss Film Association.
Part One / Stocktaking and Background Analyses
- Holding Out for an Interoperable DRM Standard
By John Palfrey
About the Contributors:
Jacques de Werra presently practices law in Geneva in the fields of intellectual property and corporate law. He is the co-director of the Geneva Art-Law Center and a member of the Board of the Swiss Forum for Communication Law.
Adolf Dietz is a renowned specialist of German, European and international copyright law as well as of intellectual property law of the countries in Central and Eastern Europe and of China.
Mihály Ficsor is President of the Hungarian Copyright Experts Council, Chairman of the Hungarian Copyright Forum, Director of the Center for Information Technology and Intellectual Property, and Chairman of the Central and Eastern European Copyright Alliance.
Urs Gasser is a research and teaching fellow at the Berkman Cetner for Internet and Society at Harvard Law School, and the executive director of the Research Center for Information Law at the University of St. Gallen.
Daniel Gervais is the Oslers Professor of Technology Law at the Faculty of Law of the University of Ottawa. Prior to his teaching career, Daniel Gervais was successively Head of Section at the World Intellectual Property Organisation (WIPO).
Brigitte Linder is a member of the Bar of Berlin/Germany and practises as Registered European Lawyer at Serle Court in London.
Catherine Mettraux Kauthen is currently a legal officer in the Copyright and Neighbouring Rights Division of the Swiss Federal Institute of Intellectual Property (IPI).
Alfred Meyer is a member of the Zurich bar and was previously appointed chief executive of the Swiss society for the rights of authors of musical works.
Hélène de Montluc is the Head of the Bureau de la propriété intellectuelle in Paris since 1987.
Peter Mosimann is currently the President of the Swiss Association of Copyright and Neighboring Rights users (DUN).
John Palfrey is Executive Director of the Berkman Center for Internet and Society at Harvard Law School.
Vittorio Ragonesi is presently a Judge of the Italian Supreme Court (Corte Suprema di Cassazione).
Yolanda Schweri practices at the law firm Brem & Borer in Zurch and is the General Secretary of Suisseculture, the umbrella organisation of Swiss author's and performing artist's associations.
Dorothea Senn is a senior research fellow at the Institute for Economic Law at the University of Bern.
Adriano Viganò is mainly engaged in consulting and litigating for clients in the entertainment, arts and media industry. He is the personal advisor to the Swiss Film Association.
Part One / Stocktaking and Background Analyses
- Holding Out for an Interoperable DRM Standard
By John Palfrey
More details
Persons
Christoph Beat Graber is head of the research centre i-call (International Communications and Art Law Lucerne) of the Law Faculty of the University of Lucerne. He teaches in the fields of international trade law, communications and art law, European and global media law and sociology of law at the University of Lucerne and lectures on audiovisual services in the MILE programme of the World Trade Institute. He was formerly Managing Director of the Swiss Independent Complaints Authority for Radio and Television. He is currently the co-editor of the Swiss journal of communications law medialex, as well as a member of the Committee on Cultural Diversity of the International Conference of French Speaking Law Faculties (CIFDUF). Christoph Beat Graber is also a member of the Swiss Federal Arbitration Commission for the Exploitation of Author's Rights and Neighbouring Rights.
Carlo Govoni is head of the Copyright and Neighbouring Rights Department of the Swiss Federal Institute of Intellectual Property and was head of the Swiss delegation in the WIPO Diplomatic Conferences in 1996 and in 2000. He is a memeber, and from 1997 to 2000, vice-president of the Federal Arbitration Commission for the Exploitation of Author's Rights and Neighboruring Rights. During 1999-2000 Carlo Govoni charied the MM-S-PR, an expert group for Copyright and Neighbouring Rights of the coucil of Europe.
Michael Girsberger works as a research fellow at the University of Lucerne and is a member of the i-call (International Communications and art Law Lucerne) Research Center. Mr. Girsberger's research focuses on copyright and competition law issues of the digital networked environment and especially on issues concerning digital rights management.
Mira Nenova is a research fellow at the University of Lucerne and member of the i-call (International Communications and Art Law Lucerne) Centre. Ms. Nenova's research focuses on competition law issues in the electronic communications sector and on some governance implications of the convergence phenomenon and rapid technological developments.
Carlo Govoni is head of the Copyright and Neighbouring Rights Department of the Swiss Federal Institute of Intellectual Property and was head of the Swiss delegation in the WIPO Diplomatic Conferences in 1996 and in 2000. He is a memeber, and from 1997 to 2000, vice-president of the Federal Arbitration Commission for the Exploitation of Author's Rights and Neighboruring Rights. During 1999-2000 Carlo Govoni charied the MM-S-PR, an expert group for Copyright and Neighbouring Rights of the coucil of Europe.
Michael Girsberger works as a research fellow at the University of Lucerne and is a member of the i-call (International Communications and art Law Lucerne) Research Center. Mr. Girsberger's research focuses on copyright and competition law issues of the digital networked environment and especially on issues concerning digital rights management.
Mira Nenova is a research fellow at the University of Lucerne and member of the i-call (International Communications and Art Law Lucerne) Centre. Ms. Nenova's research focuses on competition law issues in the electronic communications sector and on some governance implications of the convergence phenomenon and rapid technological developments.
Content
1. Introduction
2. State Play in the Digital Music Space
2.1. Apple and its Competitors
2.2. The Many Possible Roles of DRM
2.3. The Problem with Seeking Interoperability among DRMs
2.4. The Problems that Would Remain with Interoperable DRMs
3. The European Commission and its DRM Stategy
3.1. The Commission's Public Position on DRM
3.2. A Critique of the Commission's DRM Competition Strategy
3.2.1. What's Good about the Commission's Strategy?
3.2.2. Why the Commission's Strategy Is Unlikey to Succeed
4. Conclusion: DRMs, Law-Makers, and Standard-Setters
4.1. The Future of Digital Media and DRMs
4.2. The Law-Maker and the Standard-Setter
- The Evolving Role(s) of Copyright Collectives
By Daniel Gervais
Introduction
1. Part One
1.1. Challenges Faced by Collectives in the Face of Technological Change
1.1.1. A Brief History of Collective Management Societies
1.1.1.1. Early History
1.1.1.2. The Evolving Role of Copyright Collectives
1.1.2. Markets and Technological Change
1.1.2.1. The Changing Economic Rationale for Collective Management
1.1.2.2. Rationale for Collectives in the Digital Environment
1.1.2.3. Music on the Internet: New Competitors?
2. Part Two
2.1. Reinventing Collective Management
2.1.1. The Fragmentation of Rights Clearance Processes
2.1.2. Defragging the System
2.1.2.1. Technology
2.1.2.2. Extended Role for Extended Collective Licensing?
2.1.2.3. Combined Multiple Licenses Assessed by Component Use
2.1.2.4. Exemptions of Acts and Compulsory Licensing
2.1.2.5. Centralized Licensing Agents
2.1.2.6. Standard Form Contracts and Coalition
2.1.2.7. International Centralized Licensing Systems
3. Conclusion
- Rationales of Copyright and Collective Administration in the Information Society (comment)
By Adolf Dietz
- DRMS Do Not Replace Collecting Societies (comment)
By Alfred Meyer
1. Introduction
2. The Current State of Development of DRM
3. Ownership in Works and Performance
4. Tasks of Collecting Societies which DRMS Cannot Take Over
5. Interface between DRMS and CMS
6. DRMS and Levies
6.1. In General
6.2. Tariffs for Levies on Recording Equipment
6.3. Tariffs for Levies on Recording Media
7. Distribution of Blank Media Remuneration vs. Copy-Protected Carriers
8. The Legal Protection of Technical Protection Measures (TMP) and Free Flow of Information
9. The Right Owners' Attitude
10. Conclusion
- Copyright and Access- a Human Rights Perspective
By Christoph Beat Graber
1. Introduction
2. Copyright v. Access as a Conflict of Human Rights
2.1. The Human Rights Basis of Copyright
2.2. The Human Rights Basis of Access to Cultural Information
2.3. Interim Findings
3. The Conflict between Copyright and Freedom of Expression in European Case Law
3.1. Jurisprudence of the Strasbourg Institutions
3.2. Recent Development in Selected National Jurisdictions
3.2.1. Germany
3.2.2. France
3.2.3. Austria
4. Consequences for the Tension between Copyright and Freedom of Expression in the Digital Environment
5. The Future of Collecting Societies from a Human Rights Perspective
6. Conclusions and Recommendations
- Access Control or Freedom of Acces? (comment)
By Jacques de Werra
1. Introduction
2. Moving from Copyright to Access Right
3. Potential Solutions for Granting Access to Content
4. Collecting Societies and DRMs
- Competition Law Aspects of Digital and Collective Rights Managment Systems
By Dorothea Senn
1. Introduction
1.1. Developments in the Field of Copyright Management
1.2. The Competition Law Perspective
2. Competition Law Issues Arising out of Collective and Digital Rights Management Systems
2.1. Horizontal Agreements
2.1.1. Collective Rights Management
2.1.2. The Online World: Simulcasting
2.1.3. Further Developments
2.2. Vertical Agreements
2.2.1. The Issue of Common Market Integration
2.2.2. Rights Management through DRM: Is There a Gap?
2.3. Abuse of a Dominant Position
2.3.1. National Monopolies of Collecting Societies
2.3.2. Copyright Protected Works as Essential Facilities
2.3.3. On the Worldwide Market: Microsoft
2.3.3.1. Refusal to Supply Specifications
2.3.3.2. Tying of WWP to the Windows Operating System
2.3.3.3. Conclusions on Microsoft
3. Conclusions
- Transposing the Copyright Directive: Legal Protection of Technological Measures in EU Member States: A Genie Stuck in the Bottle?
By Urs Gasser and Michael Girsberger
1. Introduction
2. How the Genie Got in the Bottle
2.1. The WIPO Treaties
2.2. European Union: Current State of the EUCD Implementation
3. Overview of Articles 6 and 7 EUCD
3.1. The Act of Circumvention, the Devices and the Definition of TPM in the EUCD
3.2. The Relation between Protection of Technological Measures and Exceptions to Copyright
3.3. Sanctions and Remedies
4. Country-Specific Analysis
4.1. Problems Related to the Definition of TPM
4.1.1. Germany
4.1.2. Denmark
4.1.3. United Kingdom
4.1.4. Hungary
4.1.5. The Netherlands
4.1.6. Conclusion
4.2. Relation and Interaction between TPM and Exceptions to Copyright
4.2.1. Ireland
4.2.2. United Kingdom
4.2.3. Denmark
4.2.4. Greece
4.2.5. Austria
4.2.6. The Netherlands
4.2.7. Conclusion
4.3. Approaches to Sanctions and Remedies
4.3.1. Greece
4.3.2. Germany
4.3.3. United Kingdom
4.3.4. Denmark
4.3.5. Conclusion
5. Closing Remarks
Part Two / Podium Discussions
- Implementation of the EU Copyright Directive's Provisions on DRM/Technical Protection Measures (national perspectives)
Report by Catherine Mettraux Kauthen
- Implementation of WCT and WPPT Provisions on DRM/Technical Protection Measures in Switzerland
Report by Catherin Mettraux Kauthen
Annexes
- Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167/10, 22.06.2001)
- WIPO Copyright Treaty
- WIPO Performances and Phonograms Treaty
- Contributors' Biographical Sketches
2. State Play in the Digital Music Space
2.1. Apple and its Competitors
2.2. The Many Possible Roles of DRM
2.3. The Problem with Seeking Interoperability among DRMs
2.4. The Problems that Would Remain with Interoperable DRMs
3. The European Commission and its DRM Stategy
3.1. The Commission's Public Position on DRM
3.2. A Critique of the Commission's DRM Competition Strategy
3.2.1. What's Good about the Commission's Strategy?
3.2.2. Why the Commission's Strategy Is Unlikey to Succeed
4. Conclusion: DRMs, Law-Makers, and Standard-Setters
4.1. The Future of Digital Media and DRMs
4.2. The Law-Maker and the Standard-Setter
- The Evolving Role(s) of Copyright Collectives
By Daniel Gervais
Introduction
1. Part One
1.1. Challenges Faced by Collectives in the Face of Technological Change
1.1.1. A Brief History of Collective Management Societies
1.1.1.1. Early History
1.1.1.2. The Evolving Role of Copyright Collectives
1.1.2. Markets and Technological Change
1.1.2.1. The Changing Economic Rationale for Collective Management
1.1.2.2. Rationale for Collectives in the Digital Environment
1.1.2.3. Music on the Internet: New Competitors?
2. Part Two
2.1. Reinventing Collective Management
2.1.1. The Fragmentation of Rights Clearance Processes
2.1.2. Defragging the System
2.1.2.1. Technology
2.1.2.2. Extended Role for Extended Collective Licensing?
2.1.2.3. Combined Multiple Licenses Assessed by Component Use
2.1.2.4. Exemptions of Acts and Compulsory Licensing
2.1.2.5. Centralized Licensing Agents
2.1.2.6. Standard Form Contracts and Coalition
2.1.2.7. International Centralized Licensing Systems
3. Conclusion
- Rationales of Copyright and Collective Administration in the Information Society (comment)
By Adolf Dietz
- DRMS Do Not Replace Collecting Societies (comment)
By Alfred Meyer
1. Introduction
2. The Current State of Development of DRM
3. Ownership in Works and Performance
4. Tasks of Collecting Societies which DRMS Cannot Take Over
5. Interface between DRMS and CMS
6. DRMS and Levies
6.1. In General
6.2. Tariffs for Levies on Recording Equipment
6.3. Tariffs for Levies on Recording Media
7. Distribution of Blank Media Remuneration vs. Copy-Protected Carriers
8. The Legal Protection of Technical Protection Measures (TMP) and Free Flow of Information
9. The Right Owners' Attitude
10. Conclusion
- Copyright and Access- a Human Rights Perspective
By Christoph Beat Graber
1. Introduction
2. Copyright v. Access as a Conflict of Human Rights
2.1. The Human Rights Basis of Copyright
2.2. The Human Rights Basis of Access to Cultural Information
2.3. Interim Findings
3. The Conflict between Copyright and Freedom of Expression in European Case Law
3.1. Jurisprudence of the Strasbourg Institutions
3.2. Recent Development in Selected National Jurisdictions
3.2.1. Germany
3.2.2. France
3.2.3. Austria
4. Consequences for the Tension between Copyright and Freedom of Expression in the Digital Environment
5. The Future of Collecting Societies from a Human Rights Perspective
6. Conclusions and Recommendations
- Access Control or Freedom of Acces? (comment)
By Jacques de Werra
1. Introduction
2. Moving from Copyright to Access Right
3. Potential Solutions for Granting Access to Content
4. Collecting Societies and DRMs
- Competition Law Aspects of Digital and Collective Rights Managment Systems
By Dorothea Senn
1. Introduction
1.1. Developments in the Field of Copyright Management
1.2. The Competition Law Perspective
2. Competition Law Issues Arising out of Collective and Digital Rights Management Systems
2.1. Horizontal Agreements
2.1.1. Collective Rights Management
2.1.2. The Online World: Simulcasting
2.1.3. Further Developments
2.2. Vertical Agreements
2.2.1. The Issue of Common Market Integration
2.2.2. Rights Management through DRM: Is There a Gap?
2.3. Abuse of a Dominant Position
2.3.1. National Monopolies of Collecting Societies
2.3.2. Copyright Protected Works as Essential Facilities
2.3.3. On the Worldwide Market: Microsoft
2.3.3.1. Refusal to Supply Specifications
2.3.3.2. Tying of WWP to the Windows Operating System
2.3.3.3. Conclusions on Microsoft
3. Conclusions
- Transposing the Copyright Directive: Legal Protection of Technological Measures in EU Member States: A Genie Stuck in the Bottle?
By Urs Gasser and Michael Girsberger
1. Introduction
2. How the Genie Got in the Bottle
2.1. The WIPO Treaties
2.2. European Union: Current State of the EUCD Implementation
3. Overview of Articles 6 and 7 EUCD
3.1. The Act of Circumvention, the Devices and the Definition of TPM in the EUCD
3.2. The Relation between Protection of Technological Measures and Exceptions to Copyright
3.3. Sanctions and Remedies
4. Country-Specific Analysis
4.1. Problems Related to the Definition of TPM
4.1.1. Germany
4.1.2. Denmark
4.1.3. United Kingdom
4.1.4. Hungary
4.1.5. The Netherlands
4.1.6. Conclusion
4.2. Relation and Interaction between TPM and Exceptions to Copyright
4.2.1. Ireland
4.2.2. United Kingdom
4.2.3. Denmark
4.2.4. Greece
4.2.5. Austria
4.2.6. The Netherlands
4.2.7. Conclusion
4.3. Approaches to Sanctions and Remedies
4.3.1. Greece
4.3.2. Germany
4.3.3. United Kingdom
4.3.4. Denmark
4.3.5. Conclusion
5. Closing Remarks
Part Two / Podium Discussions
- Implementation of the EU Copyright Directive's Provisions on DRM/Technical Protection Measures (national perspectives)
Report by Catherine Mettraux Kauthen
- Implementation of WCT and WPPT Provisions on DRM/Technical Protection Measures in Switzerland
Report by Catherin Mettraux Kauthen
Annexes
- Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167/10, 22.06.2001)
- WIPO Copyright Treaty
- WIPO Performances and Phonograms Treaty
- Contributors' Biographical Sketches