OASIS Mailing List ArchivesView the OASIS mailing list archive below
or browse/search using MarkMail.

 


Help: OASIS Mailing Lists Help | MarkMail Help

rights-requirements message

[Date Prev] | [Thread Prev] | [Thread Next] | [Date Next] -- [Date Index] | [Thread Index] | [Elist Home]


Subject: [rights-requirements] RE: Rights Expression Language: Fair Use,First Sale


Title: RE: Rights Expression Language: Fair Use, First Sale

Patrick,

First the mechanical issue. If you have joined OASIS as either an individual or organization, you should be able to subscribe to any of the mailing lists used by the Rights Management TC. Just follow this link:

http://lists.oasis-open.org/ob/adm.pl

With regard to your proposed requirements, I have snipped key paragraphs from two emails:

> To turn your question around, why is a digital rights
> language necessary at all if copyright is the "law of the
> land" in your words? The answer to that question is the same
> as why the doctrines of Fair Use and First Sale should be
> included in a digital rights language. A language that is
> only a partial expression of current digital rights would of
> necessity (whether it omitted rights of interest to producers
> or owners) be a poorer expression of the rights that relate
> to digital resources. That partial expression, whoever's
> current interests were omitted, would have a negative impact
> on whatever systems are ultimately constructed to use the
> digital rights language.
>
> Note that I am speaking only about the digital rights
> language and not any specific implementation or application
> of that language. A language that is only a partial
> expression of a much fuller system of rights that is already
> in place, seems to be flawed due to understatement of the its
> intended subject matter. It would be like saying that I could
> write a normative grammar of English but decide to omit
> irregular verbs because everybody knows they exist and how to
> use them but fully describing how to form nouns. It would be
> rather poor guidance for anyone trying to learn English.
>
> In the same way, offering guidance on a limited subset of
> digital rights, whatever limited set is chosen, is not an
> adequate expression of digital rights. Imagine a "digital
> rights language" that only described Fair Use and First Sale,
> with only such references to other digital rights as
> necessary to make the language meaningful. I don't think that
> would provide enough expressive power to be a very useful language.

[...]

> First, realize that I approach this issue from the standpoint
> of someone
> trained as a lawyer in a civil law jurisdiction (Louisiana) and see
> rights as something that has to be defined in its full
> context in order
> to be meaningful.
>
> Let me see if I can illustrate that by example and then I
> will address
> the issue of expressiveness of a digital rights language more
> directly.
>
> In a civil law jurisdiction, a property owner (real property, i.e.,
> land) has the right to use his property anyway he/she sees
> fit. It would
> be possible to construct a law that says that, and in fact
> the Louisiana
> Civil Code has a provision to that affect. (I stopped practicing over
> ten years ago to pursue yet another graduate degree and so
> don't have a
> copy of those materials right at hand but can supply the
> citation.) It
> is also the case, however, that in some cases, members of the public
> have what is called a right of passage over the land, which cannot be
> blocked by the owner, despite the fairly absolute provision that they
> can do anything they like with their property.

My point was not that Fair Use and First Sale are not important rights, in fact I went out of my way to say they are. I simply was making the point that it is not considered good engineering practice to communicate information in every message that can never change. Taking your examples in turn:

Naturally a grammer of English would have to contain regular and irregular verbs, because some sentences contain one or the other and some contain both. However I have never seen a book on grammer that said: English grammer is expressed in the Roman characters A-Z, grouped in words of one or more characters with whitespace between. While this is certainly true, it is true of all sentences.

In the right of passage example, the owner can put up signs inviting people to plant crops on part of his land for a stated fee. However, he or she does not need to put up a sign that says: Right of Passage across this land is guaranteed by Louisiana state law. The reason is that this is true of all land. I doubt that the lack of these signs has prevented this right from being exercised.

Returning to digital rights, a copyright holder has the right to offer copies of his works on any terms that he or she likes, for free, per use, by subscription, etc. and to specify various distribution arrangements, etc. A digital rights language is one way of describing these terms. As I understand it, he or she does not have the right to revoke Fair Use and First Sale. If the language specified these rights, wouldn't that imply that they might not apply in some cases?

So what I was looking for was a counter example of a case where these rights did not apply. One obvious case would be where the material is not copyrighted, but in the public domain. Robin Cover has also expressed interest in this issue as well. However, I do not see who would have "standing" in the legal sense to make such a declaration, by attaching to the work a rights expression stating it was in the public domain.

As I understand the law, (and I admit to being on thin ice here, so please bear with me) an author who creates a new work that he or she would like made available to everyone for free, would do best to copyright it and then offer it under terms of free and unrestricted use. This would prevent another party from copyrighting it and offering it under more restrictive terms. Obviously in either case (public domain or free use), Fair Use and First Sale are moot.

After thinking about this for 24 hours, here is my first cut at a counter example. This is kind of feeble, so maybe somebody can think of a better one. At least maybe it will help clarify my understanding of the law. Suppose a company has certain financial information they they publish, an annual report or the like and this information is copyrighted. However, in the period before it is made generally available, is is "published" to only certain parties under non-disclosure terms. Now a reporter or a stock speculator might very well like to have a look at this information, but as I understand it, they cannot claim that Fair Use gives them the right to do so.

So maybe this is a case where Fair Use does not apply. Or is it just the case that the right exists, but does not permit this action? Please help me understand this.

In any event, perhaps the language should contain a way of expressing that the work in question is (or is not) copyrighted. This would imply that all the legal implications of such a status apply, including Fair Use and First Sale.

The Rights Language TC has not yet addressd issues of conformance. The Rights Language implies that parties have techological or non-technological means of enforcing the rights expressed. A question that has not been raised yet is: what are the responsibilities of a PEP (to use the SAML/XACML/IETF/ISO terminology) to be able to enforce implicit or explicit expressions of the language? If Fair Use and First Sale are implicit in the language, should a conforming implementation be capable of enforcing them? If they were explicit, would the answer be different?

I am not only not a lawyer, I am quite new to the digital rights field, having come from the computer security field and Authorization technology in particular. I look forward to learning more and clarifying my ideas.

Hal



[Date Prev] | [Thread Prev] | [Thread Next] | [Date Next] -- [Date Index] | [Thread Index] | [Elist Home]


Powered by eList eXpress LLC