As a
republisher, IHS has to negotiate licensing agreements with
the copyright holders of the standards and other copyrighted
documents we include in our products. They grant us rights to
republish their documents in certain formats and media and
under certain conditions, and we pay them royalties based on
the revenues we receive from selling or leasing subscriptions
to those documents. The standards developing organisations
(SDOs) with whom we do business are not just based in the
United States. Certainly the majority are U.S. based, but the
remainder are scattered around the globe. Our customers also
come from the four corners of the earth - and many are
multinational corporations that wish to place the documents on
their corporate Intranets. So while the requirements of U.S.
copyright law are very important, we are required to deal with
a much wider environment - and this makes it precarious at
times! Copyright law can be maddeningly obtuse, and when it
comes to electronic and online situations, it can be
doubly obtuse and vague.
Copyright legislation in most
countries is based on a combination of international treaties
and country-specific legislation. For example, these treaties
would permit an Italian author to reap the benefits of his
works abroad, and on the other hand, would protect foreign
authors in Italy.
 Important copyright treaties from
WIPO
Two important
copyright treaties are the WIPO treaties signed by 51 and 50
countries respectively in December 1996. Both the United
States and all of the EC member states at that time signed
these treaties - the WIPO
Copyright Treaty and the WIPO Performances and Phonograms
Treaty. I'd like to read to you some excerpts from WIPO
Press Release No. 106
. It states: "Both Treaties include provisions
which offer responses to the challenges of digital technology,
particularly the Internet. They provide an exclusive right for
authors, performers and producers of phonograms to authorise
the making available of their works, performances and
phonograms, respectively, to the public, by wire or wireless
means, in such a way that a member of the public may access
them from a place and at a time individually chosen by
them...The Treaties contain provision on obligations
concerning technological measures of protection and electronic
rights management information, indispensable for an efficient
exercise of rights in digital environment... Both Treaties
recognise a right of distribution to the public of copies.
They leave to national legislation to determine the
territorial effect of the exhaustion of rights with the first
sale of a copy and, thus, whether or not parallel import is
allowed."
The WIPO
Copyright Treaty also contains provisions on the copyright
protection of computer programs and original databases and on
the right of rental in a way similar to the " TRIPS
Agreement
". The TRIPS Agreement is
a minimum standards agreement, created by the World Trade
Organisation, which allows Members to provide more extensive
protection of intellectual property if they so wish. Members
are left free to determine the appropriate method of
implementing the provisions of the Agreement within their own
legal system and practice.
On October 28,
1998 President Clinton signed the Digital
Millennium Copyright Act
(DMCA).
This law made major changes to copyright law, and attempted to
address copyright in the digitally networked environment. Many
questions remain unanswered as to what is "fair use" in the
electronic environment and further litigation or legislation
will clarify these issues in the future.
Highlights of the Digital Millennium
Copyright Act
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Makes it a crime to
circumvent anti-piracy measures built into most
commercial
software.
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Outlaws the
manufacture, sale, or distribution of code-cracking
devices used to illegally copy
software
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Does permit the
cracking of copyright protection devices, however, to
conduct encryption research, assess product
interoperability, and test computer
security
systems.
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Provides exemptions
from anti-circumvention provisions for non-profit
libraries, archives, and educational institutions under
certain
circumstances.
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In general, limits
Internet service providers from copyright infringement
liability for simply transmitting information over
the
Internet.
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Service providers,
however, are expected to remove material from users' web
sites that appears to constitute
copyright
infringement.
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Limits liability of
non-profit institutions of higher education -- when they
serve
as online
service providers and under certain circumstances -- for copyright
infringement by faculty members or
graduate
students.
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Requires that
"webcasters" pay licensing fees to record companies.
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Requires that the
Register of Copyrights, after consultation with relevant
parties, submit to Congress recommendations regarding
how to promote distance education through digital
technologies while "maintaining an appropriate balance
between the rights of copyright owners and the needs of
users."
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States explicitly
that "[n]othing in this section shall affect rights,
remedies, limitations, or defences to copyright
infringement, including fair
use".
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There is no
question that copyright in the digital age is changing and
evolving. The Internet has made it possible to disseminate
information cheaply and easily - both copyrighted and public
domain information. Technological innovations in the market
for information goods enable us to make much cheaper copies.
The quality of these copies has often increased at the same
time, often to the point that originals and copies are hardly
distinguishable (for example, MP3 files, copies of CDs, etc.).
The use of digital media, such as the Internet, to distribute
illegal copies of information works has made traditional ways
of copyright enforcement more difficult, leading some
observers to describe the Internet as one giant out-of-control
copying machine.
So, when is it
fair to make copies of somebody's intellectual property -
either in paper or electronic form? According to an electronic
course titled "Cyberspace Law for Non-Lawyers":
1. |
Copies of small
excerpts tend to be
FAIR, |
2. |
Copies for systematic
news reporting, criticism, or parody tend to be FAIR,
and
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3. |
Copies of unpublished
works tend to be UNFAIR.
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Outside the
area covered by these three basic rules, there are two
more:
| 1. |
COMMERCIAL copying is
generally UNFAIR. "Commercial" here just means copying
that makes the copier money. It doesn't much matter (A)
whether you're making money from subscribers or
advertisers, (B) whether you're a for-profit
organisation or a non-profit one, and (C) whether your
ultimate goal is the betterment of mankind or just
making a quick buck. If you're making money from the
copying, you should probably ask the copyright owner for
a license (which might mean having to pay him for
it). |
| 2. |
NONCOMMERCIAL copying
is generally fair UNLESS the text you're copying is
available for money (or for free in a place that carries
advertising) either online or offline.
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The test is: If
this non-commercial copying became WIDESPREAD, would it
"displace some sales" (or some advertising revenues)? If it
will, it's unfair. That's why it's a copyright infringement
for you to send a copy of Word to a friend. Even if you're
pretty sure your friend would never buy it himself, the
copyright owner loses money when this sort of copying becomes
commonplace.
Adobe PDF Merchant program for
digital rights management
Some weeks ago
I sent an email to my contacts at all of the SDOs with whom we
do business, in an effort to gather some information for this
presentation. Mike Merker told me that the American Society of Mechanical
Engineers
(ASME) has chosen to use the Adobe PDF
Merchant program for its digital rights management solution.
It allows ASME to lock a downloaded PDF file to a single
machine. Mike said it has been up since March and the response
is good so far. He said that he was aware that Standards
Australia uses a similar system, but that their solution was
custom developed. I believe that the Hydraulic Institute (HI)
also uses some type of locking system, as do several other
SDOs.
Pete Pollak
from the Aluminum Association (AA) reported a recent
experience with the Copyright Clearance
Center
(CCC) regarding
an AA copyrighted document, which was copied without AA's
permission by another organisation. That organisation paid a
royalty to the CCC, but the CCC did not have an agreement with
AA. It was straightened out in a genteel way, and was really
not a deliberate copyright violation. However, it was still a
violation!
The British
Standards Institute (BSI) has been employing watermarking for
some time. A watermark is an invisible mark placed on an image
that later can be detected and used as evidence of copyright
infringement. This mark can be designed to identify both the
source of a document as well as its intended recipient. They
have just introduced an off-the-shelf watermarking tool called
Active PDF to replace the proprietary tool they were
previously using. This tool will also be rolled out for use on
other BSPL/Ti products in time.
When
subscribers request a document to view or download, the
watermarking tool accesses the secure PDF and applies the
following text to every page of the standard (runs up the side
of the page from the bottom left hand corner): "Licensed Copy:
John Doe, June 26, 2001, Uncontrolled Copy, (c)". The name of
the person is pulled from the account information (first/last
names). This process takes nano-seconds to complete before the
PDF is secured and passed onto the user (viewed or downloaded)
in the normal manner. The tool also adds a cover page, which
includes the watermark described above and the following text:
"A single copy of this British Standard is licensed to John
Doe on June 26, 2001. This is an uncontrolled copy. Ensure use
of the most current version of this document by searching
British Standards Online at bsonline.techindex.co.uk."
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David Richards
at Ti told me "Besides improved reliability, Active PDF also
allows us to watermark documents over 5mb in size and PDF
wrapped TIFFs, which we were previously unable to do. Another
advantage, which will be deployed when we start to use this on
other BSPL products, is that it allows different text to be
applied for different organisations (essential when you're
dealing with a Worldwide Standards type product). We also have
a function in the administration tool which allows official
distributors (chosen very selectively) to print off documents
to sell without the watermark appearing."
Copyright notification comes
when we lease
So what does
IHS do to protect the copyright of all the SDOs with whom it
does business? At IHS, our first copyright notification comes
when we lease or sell our products to the customer. He/she is
presented with a License Agreement that says, "By completing
the connection process or by accessing and/or using an IHS
product, you (referred to as the "Licensee") are obliging your
company to be bound by this agreement. If you do not agree to
this agreement, a particular license or terms, you are not
authorised to access and/or use the IHS products."
It further goes
on to state, "This Data and Software Subscription Service(s)
License Agreement ("Agreement") covers the use of all data,
databases, formats, software and applications, in all media
provided, and all accompanying documentation (collectively the
"Product") provided by Information Handling Services Inc.
(IHS), located at 15 Inverness Way East, Englewood, Colorado
80112-5776. The Product constitutes the proprietary data and
applications of IHS and/or its third party providers and is
protected by the federal copyright and other intellectual
property laws.
AUTHORIZED USE: IHS
grants to you ("Licensee") a nonexclusive, non-transferrable
limited license to use the Product as follows:
1. |
Only for Licensee's
internal business use at the authorised site set forth
in the purchase
order. |
2. |
For a limited term of
one year from date of delivery/access unless indicated
differently on the applicable invoice. The license shall
automatically renew for periods of one year each unless
terminated by either party in accordance with the
TERMINATION section herein. IHS will provide Licensee
with applicable pricing for each successive one-year
renewal term at least 30 days prior to the commencement
date of the renewal term. Any renewal period shall be
governed by the terms and conditions of this Agreement,
unless modified by terms provided by IHS to Licensee
prior to the commencement of a renewal term, and priced
at the then current license fee.
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3. |
For Standalones: Use
is limited to a single computer, permitting access by
one individual user at one
time.
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4. |
For Networks: Use on
a single site-specific networked group of computers.
Concurrent access to the network at any time shall not
exceed the number of licensed copies of the
Product.
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UNAUTHORIZED USE: The
Licensee may not copy, transfer, sell, license, lease, give,
download, decompile, reverse engineer, disseminate, publish,
assign (whether directly or indirectly, by operation of law or
otherwise), transmit or otherwise reproduce, disclose or make
available to others, the Product or any portion thereof.
Licensee agrees not to remove any proprietary legends or
markings, including copyright notices."
This License
Agreement is also noted on the first screen of the IHS Online
products. There is also an IHS Copyright Notice online, which
again reiterates the use restrictions. Do customers read these
notices and comply with them? A lot do, but we have our
suspicion that there's cheating going on out there!
The next step
is where things get complicated. We are the great aggregator
and we do our very best to comply with the requirements of all
the different SDOs with whom we deal. Once the customer does a
search (either on the CD-ROM or online index) and reaches a
document to which he subscribes and would like to view, here
is where it gets complicated. Some SDOs require that a special
copyright notice screen pop up, and be clicked to be accepted
before the customer can view the document. Some of these are
lengthy, others are short. Some SDOs simply require that a
special copyright page be scanned as the first page of the
document. Some SDOs would like locking technology that allows
the customer to view but not print. The combinations and
permutations of requirements are lengthy. We do our best to
accommodate these special requirements. When the customer then
(if allowed) makes a printout of the document, in most cases,
we print a special footer that reiterates that the document is
copyright(ed) by ANSI or ASME or whomever, and it is Licensed
by Information Handling Services.
Restricted site license print
agreements
In the early
1990s, several standards developers began to employ
"restricted site license print agreements". IHS contributed in
helping to define and refine this type of arrangement, and
today includes the "restricted site license print" option for
a majority of standards products. If a customer/organisation
wishes to make multiple reproductions of the same document on
a regular basis, such is not authorised via "Fair Use" and the
customer is advised to purchase the restricted site license
print agreement along with their subscription.
The "pay per
view" and "pay per download" offerings are adding to the
complexity of the copyright situation. Unless specifically
notified and instructed, many individuals think this option
gives them the right to store the document electronically and
then reproduce copies on an "as needed" basis. For any
copyrighted document, we view this as an incorrect
interpretation.
There is a
distinct difference between buying a document versus licensing
a document. For our view/pay per download options, we allow
the individual to store the electronic version on their PC
only, and allow that individual to print one hardcopy version
only. Other than those two options, the user must adhere to
copyright law, and if they want to do more, must arrange some
type of licensing arrangement with IHS or the respective
standards organisation.
Should a user
who has purchased a document elect to give
this document to another person, they are legally entitled to
do so via the principle of "First Sale Doctrine." In essence,
they must relinquish complete ownership - they cannot make
another copy or email a duplicate copy. If they give up
ownership, they should not keep the stored electronic version
on their own personal computer. Can we police this at present?
No we cannot - but we are working towards solutions that will
help.
Our future
plans include some pretty strong efforts to protect SDO
copyrights. We are looking at going back to every page of
every document we have in our electronic collections and
creating some reserved space where we will add a statement
that will say something like "this copyrighted document is for
the exclusive use of the Boeing Corporation," or whatever the
name on the account may be. This is a simple PDF plug in and
we are willing to share it with our SDO partners for their use
as well.
We also plan to
add some random watermarking to the pages of the document
which will show up when the document is printed. If we find
that the document which was licensed to Company X shows up
somewhere else - say in a bid package, or at a different
corporation, with these watermarks on it, then we know that it
was passed on in violation of copyright. Lastly, we are
looking at technology that will not allow a document to be
emailed from the PC of the user with the password to another
PC or to be put on a corporate network. We aren't sure what
this will cost us yet, but we feel so strongly about
protecting copyrights that we are definitely looking into this
technology and exploring the cost involved.
Breaches of copyright
We take our
responsibilities very seriously regarding breaches of
copyright. We have over the years, as a last resort,
physically pulled out microfilm cartridges, fiche cards and
CD-ROMs from customer locations. However, before we get to
that stage, we have a series of processes that we go through.
Initially, the responsible sales rep will speak with the
customer we know or suspect of being in violation. If the
situation continues, we send a letter. If it continues, we
escalate from there, getting our lawyer involved. Finally, we
simply cut off access to electronic files and give the
customer a pro-rated refund. If the user does not return the
CD-ROMs - they have a "killer clock" built-in, and after six-
months, the application software dies and no longer lets them
use the CD-ROM index. Without the index, they can't get access
to the documents. I was personally involved some years back in
obtaining evidence to shut down a certain University's Center
for Codes and Standards. They had purchased an IHS
subscription and then established a nice business selling
copies of standards from their subscription.
So...here is
the major challenge I would like to make to standards
developers today. We at IHS try very hard to protect SDO
copyrights, and we do our best to implement the very different
requirements of all the contracts that we have with so many
SDOs around the world. We know that many SDOs are implementing
their own requirements and safeguards on their websites. Do
you think we might all come to a meeting of the minds on just
how we can do this one time, one way and keep everybody happy?
Could we possibly have a standard on it? And could adherence
to this standard be required equally by ALL vendors,
distributors and resellers of standards? It seems that a lot
of different organisations are spending a lot of time, effort
and investment on coming up with their own way of doing
things, their own specialised copyright statements - and they
aren't all so essentially different. This copyright warning
statement is just a little different from the next one. Could
there be one standard, one statement, one procedure that
everybody needs to be held equally accountable to? I look
forward to hearing your responses. Thank you.
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