What is Digital Rights Management and why is it Important?
Digital Rights Management is the term given to describe techniques implemented to control access to copyright material and provide information to users about terms and conditions to access the material. DRM takes many forms, with differing purposes including providing protection, tracking and monitoring, providing copyright description, and identifying material.
In this digital age, the reproduction of imagery and information is becoming more efficient than ever before. By simply selecting “copy” and “paste” Internet users are often able to appropriate works (unlawfully in many cases) without seeking the permission of, or notice to, the copyright holder. The issue therefore arises, what can be done to combat the exploitation of copyright material and how can creators protect themselves and their works?
The answer lies - at least partly - in the implementation of DRM systems.
The Legalities and the Practicalities of DRM
Copyright law plays an important part in authorising and controlling the use of original works. Section 226 of the Copyright Act 1994 has incorporated the use of devices “designed to circumvent copy protection” for copyright works in electronic form. The inclusion of this section in the statutory regime illustrates the legislative framework is responding to the rapidly emerging digital technologies.
However, DRM not only assists greatly in supplementing/ evidencing the legal rights of creators, but at a more practical and fundamental level to prevent, or at least strongly dissuade, unlawful conduct.
Types of DRM available
DRM comes in various different forms, ranging from simply providing copyright information with material, to implementing programmes to accompany the data, restricting access unless specific conditions are satisfied.
Imposing a License Agreement terms is becoming more common as a means for placing contractual limits on the use of works. The limitations may include the type and extent of reproduction permitted, and time limitations specific to the purpose of the license.
Under such licenses, access to the material may only be made available to the licensee once payment for the right to use the material has been made and received. For example, upon payment the licensor will provide a form of password, key card or access code for the user. Until such time, the material may remain protected by DRM systems, which will vary depending on the types of works and the level of risk associated with its use.
Security features and Software protection
Examples of Software developments in the protection of digital works include:
Encryption
Installing an encryption element into DRM systems has the effect of scrambling an image so, without a password or access authority, the image is unable to be used.
Personalisation
Personalisation of material involves tailoring particular works (often from a series of works) into a package for a particular user. For example, an online photo gallery may require a small number of images to include on their website. The creator and gallery may enter a Licence Agreement in which all images would be accompanied by metadata and a form of encryption may also be implemented to restrict the use of the image. These particular terms and conditions would be specific to this agreement.
Granularity
Under a DRM system a Visual artist is able to deliver small parts of their Work to a user who then uses these parts to create new works. The use of granularity is an example of a way in which digital reproduction is making it more efficient and cost effective to create new creative Works.
However, if a creator opts to licence a part of an existing work the continuing existence of copyright protection, as well as any moral rights, should be considered.
Digital Watermarking and Metadata
Systematic inclusion of Watermarks and/ or metadata are methods of ensuring that a fixed set of descriptive data accompanies the works to inform users of key attributes of the work, such as the copyright status of the image and the owners of that copyright. Its purpose is two fold. Firstly, to capture and stipulate the data protected by copyright and secondly, to provide contact information for users wishing to copy the image.
The effect of including metadata with an image is not only to dissuade users from copying protected material, but also to assist in the enforcement of legal rights under copyright and other laws (including fair trading). Furthermore, metadata can remove potential arguments over knowledge, ownership, copyright status and permitted use.
The current copyright regime requires that a defendant must have knowledge of infringement to be found liable under the Copyright Act 1994. This may be in the form of actual knowledge or, what the Courts label as, constructive knowledge (where a reasonable person would have acquired or possessed the knowledge).
Without any information of the copyright status of the work, the requisite knowledge or constructive knowledge of a user will be more difficult to establish, meaning the elements of the breach may be difficult to prove.
In addition, from a practical perspective, numerous minor breaches by a few users, although amounting to a substantial degree of loss to the copyright owner, will be expensive and time consuming to litigate. Effective use of DRM, as well as providing a disincentive for misappropriation, can assist greatly in the enforcement of property rights in copyright works.
Incorporating metadata with an image will provide users with copyright information, meaning that where an author of works seeks damages for loss caused by a breach, the requisite knowledge would be easier to prove.
The types of information metadata should incorporate includes:
> General Right Information including the copyright and publication status of the Work, dates regarding the year of copyright creation and renewal, copyright statement and country of publication or creation;
> Details of the Visual Artist, copyright holder and (where relevant) licensed Publisher;
> Administrative data such as contact information.
It is also worthy to note that works generated in New Zealand are not immune from treatment under other laws, if a work is delivered to a user in that jurisdiction.
Adopting DRM- Practical Considerations for Visual Artists
The most important aspect of a successful DRM system is assessing which protection systems will most effectively meet your needs in terms of the works being produced, the risks associated with distributing the works and the proportional value and cost of DRM and works being distributed. The challenge for visual artists is to utilise DRM systems to keep trace of digital works and retain/ enhance profit from its commercial use.
Options for DRM systems include:
> Developing an in-house system of DRM, specific to the distribution of your works;
> Purchasing a DRM software package that best suits your objectives and requirements;
> Outsourcing to a hosted server.
These options each carry with them advantages and disadvantages. However, the end decision will depend on strategy and security decisions made by the creator.
DRM, in particular, the use of metadata accompanying works, should be considered as a matter of systematic business process in conjunction with License Agreements and Terms of Trade. A properly considered DRM system will enable a creator to better secure their rights as author and profit from the works they produce.
James Carnie & Gabrielle Lourens
Clendons
Clendons is an Auckland based law firm, specialising in copyright and intellectual property issues. The firm is a sponsor and representative of various New Zealand visual arts organisations including AIPA, NZIPP and DINZ.
