The end of an era: digital rights management

11 Mar

As promised, my thoughts on digital rights management and policy issues.  This is modified from research I have already done, but I feel it’s still relevant.  I don’t aim here to provide a recommendation to libraries or policymakers on what course of action to take.  I intend only to illuminate the situation we as information professionals find ourselves in and to give enough basic education that we can hold our own when the time comes.  That time will come, and as it marches closer, we must take our responsibility to consider the needs of individuals vs. the needs of the community with the greatest gravity.

As our current climate of information grows and changes, so do the demands that users make on sources of that information.  Sources of information are traditionally thought to be books, bookstores, libraries, archives, and other repositories of documents.  With the increasingly wide availability of computers, complete with the ability for word processing, and the pervasive nature of the Internet, demands for information have adapted to fit in.  Now librarians and information managers must be familiar with databases and Internet-based methods of information delivery as well as how they must treat digital objects.  Digital objects can mean either copies of paper-based documents, or objects that are “born digital” and have never been committed to paper in original form.

Digital objects present unique challenges to librarians, information managers and lawyers.  Because of the speed and relative ease of access, many users favor digital objects over the paper-based object.  In some cases, this is because the object is unavailable to most users: digital reproductions of one-of-a-kind masterpieces of art or illuminated manuscripts, scanned in at suitably high dpi resolutions, represent a chance to study materials without the cost of travel or purchase.  In other cases, it represents mere ease of access: a college student sitting in his dorm room during a blizzard in Canada is much more likely to “borrow” an electronic document from the library, via e-mail request, than he is to venture out in the weather to check out the print book or journal.

With so many materials available in new formats so quickly in the eyes of the law, copyright laws have yet to catch up to the transition.  Most copyright for print materials is assumed to extend to digital objects, with only minor modifications.  Because this adaptation of a system unsuited to materials has evolved, producers of digital objects and lawyers who work with them have developed certain practices as a response.  The more widely known two are digital rights management and the reward system.  Both have points in their favor and both have drawbacks, both have implications for technology and law development in the future.  The common ground they have is that neither is currently considered the definitive system to use.  They are most commonly evaluated from technology-based enquiry, or from economic enquiry.  That being the case, both areas of enquiry have impact on the field of librarianship as the technology influences the ways in which users consume information and the economic factors influence their ability to consume information.

Copyright law is an area notably murky and contentious when applied to digital objects and digital libraries.  In the most basic sense, copyright laws are designed to maintain a “balance between ‘private good’ and ‘public good’” (Tang, 2005, p.859).  The “private good”, manifested by exclusive rights, has traditionally been interpreted to mean the good of the author and/or producer of the material, most often in a financial sense.  The method for assuring the private good is through royalties and protection against illegal copying designed to defraud the author and/or producer from proceeds they are otherwise entitled to.  The public good refers to the benefit the public can gain from the work intellectually, and is the reason why copyrights have expiration dates.  The phrase “digital agenda” is often used to refer to the attempt to mandate copyright in a meaningful way for digital objects.

Any librarian worth his or her salt knows about fair use as an exemption to many copyright law restrictions.  The U.S. Supreme Court ruled in the Sony Betamax case that private, non-commercial copying should be considered fair use unless there is proof that there is “meaningful likelihood of harm to the market for the copyrighted work” (Samuelson, 1998, p.15).  Samuelson also states that fair use itself is a balancing mechanism between the author’s/producer’s interests and the consumer’s interests in that it allows for settlements of lower licensing fees than normal or that the copy provides critical commentary which benefits the public interest (1998, p.15).

In a digital environment, law has not kept up quickly enough with technology, leading to numerous White Papers on the subject of digital copyright, as well as some pieces of legislation that seem to ignore fair use, such as the Digital Millennium Copyright Act of 1998 (DMCA).  At the time of his writing, Kretschmer noted that the DMCA had provisions that would make copying digital objects for the purposes of criticism, parody, or research preventable via “contractual terms of the rights owner”; that is, any digital library contracting for the rights to a work could also have in that contract a stipulation that allows for the material to be kept from fair use or public domain (1998, p.1).  This is problematic because now copyright holders have such control over their materials: publishers could not “prescribe what a user can do with the copy of a work after sale”.  In accordance with the digital agenda, the U.S. White Paper on Intellectual Property and the National Information Infrastructure states that copyright owners do have the right to enforce an exclusive right to read, because protected works in digital form that are read or privately performed have temporary copies made in RAM during the reading or viewing (Samuelson, 1998, p.15).  While to librarians such an argument may sound specious, it nonetheless has gained validity in the minds of producers and owners of copyright.

Hand in hand with the issue of digital copyright is that of privacy.  A user accessing a digital object through means of DRM systems, digital libraries, or peer-to-peer (P2P) networks tends to assume a degree of anonymity; he or she would be right to, as libraries have fought strenuously throughout their history to uphold the right to privacy of their patrons.  However, the question remains on what responsibilities, if any, “digital library developers have to respect user privacy or build in anonymity features to protect user privacy” (Samuelson, 1998, p.16).  At least in some cases, such as P2P networking, copyright owners would much rather there be no anonymity so that any use they do not authorize, including provisions for fair use for print materials, may be linked to a specific person for purposes of prosecution.  If encryption is utilized then there must be some form of authentication for users, and if that goes directly to the copyright owner, they may have the means to circumvent anonymity.  This circumvention matters inasmuch as it gives DRM systems the ability to influence unduly the consumption of materials that, in another form, would be more free-flowing.

A last issue that Kretschmer notes is that “there is no unified category of right owners, covering creators and investors”, and that the two may have greatly differing interests in the copyright (1998, p.9-10).  The interests of the creator include wide distribution, acknowledgement/credit for their work, financial gain, and creative engagement with other works, whereas the interests of the investor are in “exclusive and transferable property rights, to extract maximum returns from their investments” (Kretschmer, 1998, p.9-10).  Because of the disparity between interests of owners, he notes that creators might disregard copyright at the outset of their careers and once their financial stake becomes greater their interests become similar to those of investors (1998, p.11).

Digital rights management, or DRM, sometimes called “digital restrictions management” by its opponents, is currently the answer to the problem of applying copyright law to digital objects: it programs exclusive rights into every computer and device used for information consumption and manipulation (Eckersley, 2003, p.4).  Stamp says that it “can be viewed as an attempt to provide ‘remote control’ of digital content’…[wherein] restrictions on the use of the content must be maintained after it has been delivered” (2003, p.102).  Should it be successful, a DRM system complies with both copyright laws and those “mandating increased security for private information held in digital form” (Stamp, 2003, p.102).

There are four basic classifications of security levels within a DRM system: honor-based systems that have no real technical security and rely on users to be honest about their use; systems utilizing limited, software-based protection, such as an attempt to protect PDF documents by disabling the “Save As” feature in Acrobat Reader; systems that have software-based “controlled execution” that prevent the user from performing certain operations such as screen capture, and methods aimed to prevent activities deemed compromising to security; and systems that rely on tamper-resistant hardware (Stamp, 2003, p.103).  These levels have different degrees of feasibility, and most DRM systems fall into the second classification due to expense and the fact that most DRM systems must operate on personal computers.

The benefits of such a system include protection for rights holders; when Mark Stamp published his article, he asserted that “without robust DRM, owners of digital content [had] little choice other than to rely on the honor system” (2003, p.102).  Such a system is obviously unacceptable to any rights owner and might account for the relative lack of volume of digital content widely available in terms of copyrighted works.  Stamp also believes that if a DRM system were to be effective and successful, it has implications for users: they could manage and maintain control over their online personal data (2003, p.102).

Problems with a DRM approach and trusted systems include the need for resistance to tampering, and the need to display or release the contents from the device in a human-accessible format (Eckersley, 2003, p.4).  Another thing to note is that although processes such as watermarking exist, they are by no means secure, and that by the date of publication, no technique existed for watermarking that could not be removed from the object (Eckersley, 2003, p.5).  Stamp believes that if DRM systems are to have a reasonable chance in a software-based system, as opposed to tamper-resistant hardware, then “perhaps the best hope lies in the realm of software uniqueness.  If each instance of a particular DRM software product includes some degree of uniqueness then an attack that succeeds against one will not necessarily succeed against all” (2003, p.110).  It should be apparent from this belief that the primary goal of DRM systems is security of the information, not delivery, and this is an idea that may find purchase with librarians only if there are no acceptable alternatives.

There are many scholars who have come up with numerous alternatives to DRM.  Juxtaposed with DRM, some professionals espouse a reward-based system for copyright of digital objects.  This would call for “various forms of direct government intervention to replace exclusive rights in a digital context” (Eckersley, 2003, p.5).  Eckersley references two existing schemas that are precedents for the type of reward system that could be implemented for digital objects: the “’public lending right’” scheme, and the “’private copying’ levy scheme” but both are reward-based, financed by taxation and address situations “where exclusive rights are infeasible or unenforceable” (2003, p.6).

The public lending right scheme is used in application to public libraries: it pays authors and publishers for the usage of their materials in the context of the public library, and though the scope, method and legal status varies, “they involve a pool of government funds which are divided according to the relative borrowing frequency of different items” (Eckersley, 2003, p.6).  In essence, it places a value on each material based on statistics gathered from the library about use and assigns a monetary compensation to the copyright holders commensurate with that value.

A private copying scheme is used, for example, as compensation for uncontrollable reproductions of music or cinema materials.  In this scheme, the funds are derived from those individuals who are doing the copying only, not the general public, and is meant to pay for reproductions of materials, not use.  Eckersley himself thinks that the best approach to a reward system is one that allows “proposals for levy-based remuneration for private copying” so long as those materials come with assurance of exemption for covered conduct, and attempt to “ensure that the taxation used to fund these schemes is progressive as well as levy-based, and to grant consumers a direct role in determined the way rewards are allocated” (2003, p.25-26).  In other words, the public should have to pay but they should also have some say in how much each copyright owner receives.

The benefits of a reward system include giving the users a way to place value on materials that is missing in a DRM system: it operates based on the assumption that owners of materials with wider use deserve more monetary compensation.  It also circumvents the assumption made in DRM and current copyright situations, that those materials of sufficient value to a user will be purchased (or the means to consume them will be purchased).  Eckersley accurately states that “few people purchase all of the cultural goods they would appreciate…the cost of artificial scarcity is amplified when there are significant numbers of consumers (unemployed, teenagers, those outside the first world) who would benefit from access to information goods, but who can express little financial demand for them” (2003, p.9).  Reward systems, in addition to providing rights owners with pecuniary benefit, provide those who cannot pay explicitly for materials with access to them anyway, much the way a public library functions.

A reward system, like a DRM system, presents challenges.  One challenge is innate in the idea of a reward system: the government would need to change copyright laws in such a way as to exclude digital objects from applicability, and also enact laws that cover digital objects under the reward system.  Such a legislative undertaking would require significant time to complete, leaving the rights of digital objects in a legal limbo during the transition.  Reward systems also have a problem with allowing for accurate reflection of value assessed by user communities; an academic community may have a material of strong value to them but that is of little value to the public, or if a specific per-download value is assessed there is little opportunity to differentiate the high quality from the low quality in each category (Eckersley, 2003, 17-20).

Perhaps the most troubling challenge to a reward-based system lies in its funding: if the system is funded by public dollars, then it falls to the government to allocate and manage those funds in a beneficial way.  The amount of total funds is likely to be set by policy, and even if there is a large amount of data to support the concluding level, there is no guarantee that the managing government would always provide the correct amount, or that inadequate funding would be a rarity (Eckersley, 2003, p.21).  Across the country we have recently felt the impact of budget cuts for many libraries public and private; imagine what the situation would be if the state government could free resources from a reward system to balance the budget elsewhere.

Both systems, should either be adopted into wide use, have implications for how technology and law will develop.  Law change motivated by Internet technology has not always been to the benefit of users.  NET, famously the first attempt at copyright reform, “broadened the scope of copyright protection and criminalized behaviour by Internet users that had previously not been considered a crime”; under NET, specific fines were imposed and through that law, prosecution began against individuals who participated in “felonious copyright infringement”, or file-sharers (Tang, 2005, p.860).  The DMCA, the more protested of digital copyright legislation, “outlaws circumvention for lawful use of the copyrighted work” that is permissible for print works under fair use (Tang, 2005, p.861).

It is too early to say for sure what a change in copyright law would result in, as far as changes in technology and devices.  The key point to remember is that because either a DRM system or a reward system has yet to achieve large-scale testing and success, the ramifications of either system can be extrapolated but not proven.  DRMs run the considerable risk of handing the copyright owner more control over documents that they ought to have, up to and including allowing them to circumvent copyright laws by mandating deletion before the copyright’s expiration.  Reward systems, to those with less charitable views of government, are rife with the opportunity to misallocate funding either by mistake or design, causing both the rights owner and the user to bear the repercussions: one loses money, and so stops producing as much, and the other loses access to both current materials and the materials that may have been created were it not for the lack of incentive.

After examining both systems and becoming aware of the implications they have, the first conclusion any reasoning professional will come to is that the change represented by both systems is inevitable.  As our capabilities shift, so too must our restrictions and guidelines on them.  The library finds itself torn; a library wants to provide as much access to as many materials as it can, while also obligated to uphold restrictions on use so that credit may be given to originators and intellectual responsibility is established.  Kohl, Lotspiech, and Kaplan have considered the debate and have found a role for the digital library in a new system comprised of predominantly digital information production and consumption.

First they distinguish between the publishers and the “information custodians” or librarians, who deliver the product to users; while they admit that publishers can deliver information to users as well as produce it, they assert there is “substantial value in the intermediate role”, found in a “three-tier architecture” (Kohl, Lotspiech & Kaplan, 1997).  The middle tier, belonging to the library, has several advantages: it is connected to users via intranet rather than Internet (though not always), it can obtain content that is prohibitively expensive for the individual to purchase (known to computer programmers as “site licensing”), it can guarantee anonymity that is difficult to match on the open Internet, it can cache information and provide users with higher performance, and it can be a trusted system allowing delivery of valuable content from the publisher or author to the user, a secondary and intangible means of authentication if you will (Kohl, Lotspiech & Kaplan, 1997).

The digital library will have to provide authentication for both producers and users so they both know the material is what it is supposed to be, whole and unadulterated, and it will have to provide privacy to the readers so that no third party can ascertain who is reading what and assure that free speech remains intact (Kohl, Lotspiech & Kaplan, 1997).  According to Kohl, Lotspiech and Kaplan, the technology to accomplish all of these duties exists, so the digital library cannot be discounted simply because of its technological ramifications.

Works Cited

Eckersley, Peter.  (2003). The Economic Evaluation of Alternatives to Digital Copyright.  Retrieved from: http://citeseerx.ist.psu.edu/viewdoc/summary?doi=10.1.1.130.3070

Kohl, Ulrich, Jeffrey Lotspiech & Marc A. Kaplan. (1997). Safeguarding Digital Library Contents and Users: Protecting Documents Rather Than Channels.  D-Lib Magazine, September.  Retrieved from: http://www.dlib.org/dlib/september97/ibm/09lotspiech.html

Kretschmer, Martin.  (2003). Digital Copyright: the end of an era.  Retrieved from: http://ibal.bmth.ac.uk/pdf_docs/436.pdf

Samuelson, Pamela.  (1998). Encoding the Law into Digital Libraries [electronic version].  Communications of the ACM, vol.41, no.4, 13-18.

Stamp, Mark.  (2003). Digital Rights Management: The Technology Behind the Hype.  Journal of Electronic Commerce Research, vol. 4, no.3.  Retrieved from: http://www.csulb.edu/journals/jecr/issues/20033/paper3.pdf

Tang, Puay.  (2005). Digital copyright and the “new” controversy: Is the law moulding technology and innovation?  Research Policy, vol.34.  doi: 10.1016/j.respol.2005.04.005

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