The Automation of Rights

by Karen Coyle

Preprint. Published in The Journal of Academic Librarianship, v. 32, n. 2, May, 2006, pp. 326-329.

The term "digital rights" is heard frequently, often as part of the phrase "digital rights management," or turned around as "the management of digital rights." Both of these phrases have a variety of meanings and part of their ambiguity comes from the term "digital rights" itself. Digital rights are spoken of in three different contexts: The context of intellectual property law, the context of technological controls, and the context licenses and contracts.

The use of digital rights to refer to law is particularly problematic because with some minor exceptions copyright law does not distinguish between digital works and those in analog formats. Law protects the work itself, regardless of its manifestation. So digitally stored music, as on a compact disk, and analog music, as on the old vinyl records, are equal in the eyes of copyright law. Yet our legal system is becoming aware that digital may be different, especially when the bits of digital are stored on generic computer equipment and are, or can be, transmitted over networks.

For many, the first encounter with digital rights was in the context of digital rights management, or DRM. DRM often implies the use of technical protection measures that can securely enforce license conditions.¹ Libraries have been understandably cautious about DRM solutions, which would appear to create a system of owner control over content that could be used to limit the traditional public access that libraries provide.

Licensing of digital materials is commonplace in the consumer market, although the "click through" licenses on software generally go un-read and consumers are mainly unaware of their conditions. Libraries, however, actually negotiate licenses for digital materials and consciously make use of the terms and conditions of those licenses to provide services to users.

There is a fear that technological protection measures will become the dominant solution for modern content, overshadowing the legal and contractual solutions that allow libraries to occupy a fair middle ground between content providers and users, hopefully to the benefit of all. Fortunately, both law and licensing are showing some sign of moving toward solutions that will allow libraries to continue this traditional role.

Digital Rights as Law

The term "rights" has some basic legal implications; you have a right to free speech, a right to own property, a right to vote. The term digital rights therefore has an aura of law-ness, but rights relating to digital resources are not well defined. Copyright law is nearly silent on the new world of digital resources. The WIPO Copyright Treaty, signed by nearly 60 nations that participate in the World Intellectual Property Organization, introduced some specific protections that are particular to computer files. This treaty added agreements about digital resources which include: 1) a ban on circumventing technological protection measures on file, such as encryption and password protection; 2) a ban on removing any Rights Management Information from a digital resource such as terms of conditions of use, but also including information that identifies the work such as the author or title; 3) a declaration that a compilation of data, such as a database, can be considered an intellectual creation and thus receive copyright protection.² U.S. law dedicates a section to computer programs³ which allows owners of computer programs to make normal backup copies so that a program can be restored if there are hardware or software problems that cause its loss. None of these laws really addresses the unique properties of digital resources, especially in relation to copying and distribution.

The lack of laws relating to digital materials should not be taken to mean that such laws are not needed. Many countries are in the process of modifying their intellectual property laws to take the special properties of digital materials into account. In Europe there is a strong movement to recognize the role of digital materials as this generation's cultural expression,⁴ and to include digital materials in the legal deposit activities that support the public archive held by the national library.⁵ In the United States, the Library of Congress has formed a committee to study the library preservation exceptions in section 108 of US copyright law⁶ in light of the need to preserve digital materials and the desire to use digitization of analog materials for preservation. Sometime in the future we will have more of a sense of how "rights" and "digital" can complement each other; for the moment, the picture is fairly unclear.

Digital Rights in Contractual Form

While laws relating to digital materials and their specific rights are not in a mature form, the use of digital contracts is already common. Any transaction today using a credit card is in essence a contract that says: "I will pay you this amount for the products listed on this sales receipt. In addition, whole industries use Electronic Data Interchange standards⁷ to conduct their business transactions digitally. With the exchange of products that are themselves digital in nature, the transaction can include both the purchase and the delivery of the product, such as software that is purchased and downloaded online.

The expression of rights can take different forms, from a simple statement that declares rights, such as "Copyright 2006, Jane Doe," to a fully actionable Rights Expression Language (REL) that can be used to enforce protection measures. A major question with rights in digital form is whether they are "actionable." Actionable data elements can be processed by computer programs and can be used for automated decision-making. In a digital contract for a subscription with a start date of 20060101 and an end date of 20061231, those dates could be actionable for the purposes of determining which issues to send to a library. On the other hand, a digital contract with a field for the terms of an agreement that carries a text such as "These materials are to be embargoed until 50 years after the author's death," is not actionable.

Digital Rights Management

From business exchanges of dollars and cents to digital expression of rights, however, is more than a small step. Sellers of digital products would like to include specific conditions of use, and some want their digital contract to be technically enforceable. This type of "digital rights" expression is already in use in products such as Apple Computer's iTunes and in Adobe's Portable Document Format (PDF). The iTunes rights management technology, Fairplay⁸, can be used to limit the number of computers on which the file can play and the number of times a group of tunes can be used to burn a CD. Adobe's rights technology allows you to protect files with passwords, create a document that can be viewed but not printed, but also to allow users to modify and annotate the file if you wish to do so. This latter should remind us that "rights" can be given as well as taken away through technological means.

The goal of some rights expression languages is to create a fully actionable contract.⁹ These contracts are necessary for some kinds of transactions, especially in e-commerce where the purchase, receipt, and use of the product takes place over networks. The delivery of content to cellular phones, for example, is an area where the contract must be entirely actionable. Actionability can be useful for some library functions, such as serials control, but many library functions are not fully digital in nature and need a level of human interaction to complete the transaction. For this reason, even in areas where a library may have some rights expressed in digital contracts, the level of automation of the actions will not be equal to that achieved by some e-commerce applications.

Digital Licenses

When people think of automating contracts and moving into a new era of "digital rights" they tend to think that we will be able to take our current contracts and somehow make them digital. This is unlikely to happen, at least not in any useful way. The kind of contract that exists as a legal document, written by lawyers for lawyers, is quite different to the contract that we can express in a computer-readable form. One option is to have a lawyerly contract that satisfies those legal needs and to create a digital expression of only those aspects of the contract that can be useful in a machine-to-machine interaction. A good example of this is the suite of contracts developed by Creative Commons.¹⁰ Creative Commons has a set of contracts written in "lawyer-eze" as well as a brief manifestation of these contracts in a format that can be inserted into web pages. The display form of the license that appears on web pages is ideal to inform users about the contract conditions, and can also be used for limiting searches to resources that allow re-use. If a work with a Creative Commons license ends up in court, however, it will probably be the traditional license that will be used to explain the terms, not the computer code.

Work on the digital exchange of licenses, and licenses that go beyond the traditional EDI realm of a basic business transaction, is taking place in many arenas, including those areas of the market where publishers, distributors and libraries reside. A license is, by its definition, an act of communication between two or more parties. When the license is digital this means that all of the parties must understand the formats and data elements that make up the license. Because of this, digital license development is taking place within standards bodies. Although there are some digital rights expression languages that claim to be able to express any type of license, these rather heavy-weight technologies are often considered to be unsuitable for the limited market that libraries provide.¹¹ Instead, libraries and their business partners are looking at some specific applications that will take advantage of digital licensing.

Electronic Resource Management

One very active area in digital licensing for libraries is that of Electronic Resource Management systems, or ERMs. This area was motivated by the need of libraries, and especially academic libraries, to manage and make use of a complex set of journal licenses that include subscriptions and access rules for digital content. When these licenses are expressed in a digital format it is possible incorporate the information efficiently in user services such as metasearch or document linking systems.¹² ERM licenses can include access rights information that is understood by link resolution services. This is especially important in an environment where increasingly links are being made between resources licensed from different vendors. When a user in one database requests to look at a cited article that is available from another vendor, license terms have to be applied to know whether that access – by that user – is allowed in the library's license.

The Electronic Resource Management Initiative (ERMI), sponsored by the Digital Library Federation (DLF) produced an initial analysis with functional requirements.¹³ Since then, a group called the NISO/EDItEUR Joint Working Party on Serials (JWP)¹⁴ has been formed to work on standards for serial products and subscriptions. NISO is the National Information Standards Organization;¹⁵ it produces and promulgates standards that serve libraries, archives, and their partners. EDItEUR¹⁶ is a standards body specializing in EDI-type solutions for publishers and their agents. The project so far has resulted in data formats for serials products and subscriptions (SPS), serials online holdings (SOH), and serials release notification (SRN). These could be used separately or together to create online systems that send messages about serials.

A broader effort that came out of the JWP work is the creation of a format for publisher license terms. The format for license terms, which would become one of the ONIX formats, covers the various terms of a license including: payment information; permitted and prohibited usages; information about the supply methods, such as where on the network the product will be available; and other license terms such a those that cover liability and specific conditions. This license language, called "ONIX for License Terms," was issued in draft format in February of 2006.¹⁷ ONIX for License Terms contains data elements for both actionable and non-actionable terms.

ERM management systems are not waiting for the formal standards process to be complete, and many library systems vendors have already moved forward in this area.¹⁸ If the standardization of these licenses and the transactions they government is successful, however, we will see increased interoperability between the many systems that can make use of this journal license data.

Preservation

Purchases are not the only kinds of transactions that can be expressed as contracts, as those in archives are aware. Materials given to a library can be covered by "donor agreements" or "deeds of gift"¹⁹ that contain information and conditions that must be met by the archive. Digital libraries are struggling today with understanding the terms for the preservation of digital materials, and what contracts or agreements, analogous to the donor agreements for hard copy materials, will govern that activity. The Preservation Metadata: Implementation Strategies (PREMIS)²⁰ working group has included elements in its data dictionary that could be used to carry the contract, or a reference to the contract, in metadata.

The PREMIS metadata primarily covers technical aspects of preservation, but it includes a rights segment because the question of rights applies to all preserved objects. The PREMIS rights identify an agent, generally the person or organization that can grant rights, and some preservation actions, like migrating files to a new format. The PREMIS metadata was made available for trial use in 2005 and may undergo changes before it is considered mature, but it is another step in recognizing that legal rights and contracts are import for the preservation activity.

In addition to the work being done by PREMIS, the California Digital Library is proposing metadata for its digital archives that will document the copyright status of works.²¹ The Cedars preservation project's metadata²² also includes data elements for copyright information and for pointers to licenses and statutes that relate to the preservation action. As digital preservation matures into a standard library and archives process, it is clear that rights information will be part of the preservation package.

Conclusion

The early work in computer science on digital rights management focused on trusted systems solutions that would allow the end-to-end, or seller to buyer, control over digital materials. These systems were intended to support the development of markets for digital materials by preventing piracy and facilitating online services. These systems are still commonly referred to by the acronym DRM. In the DRM model, systems had to be "byte-tight," allowing no leakage of digital products into areas like peer-to-peer networks or the open web.

While DRM solutions are still considered viable by some industries, experience shows that markets can survive with solutions that exert less control. Some systems rely on the same nuisance factor that slows, but does not stop, piracy in the analog world. For example, audio books downloaded from Audible (fn audible.com) are in a protected format when listened to on a computer or MP3-type player, but can be burned to CD for listening in a regular CD player. The CD version of the file, however, is in an uncompressed format and one must often burn a dozen or so CDs to have an entire book. Although these analog copies can be pirated, most of us are unlikely to make multiple copies of such a large number of disks. The Peanut Ebook Reader (later called the Palm Reader) solved the problem of giving the end-user a password that could be passed along to friends or published on the Internet by using the buyer's credit card number as the password to open books, a string of digits that most people would be reluctant to post in a public forum. And academic publishers of books and journals have over a decade of experience managing access rights to digital materials but not usage rights; they have controls on who can get the text but not what can be done with it once it has been downloaded. This solution would not be sufficient for popular books or music but is suitable for the education and research environment where audiences are limited and best sellers virtually unheard of.

Current work in electronic rights management for serials subscriptions and for digital preservation are experimenting with a model of rights management that facilitates system interaction but does not require end-to-end control over content. Like the move to create copyright and legal deposit laws that work well in the digital environment, these rights management solutions can help us create efficient systems that deliver usable content with a balance between revenue and the freedom to read.