Friday, 3 January 2014

Digital Rights Management - Can it be the right Digital management IP rights?

                                                                                              

Relationship between law and technology has always been uneasy. Law had been slow and lethargic to respond to new technologies. Till recently the law makers handled problems presented by technology without break down of legal resources. Convergence of computers and internet posed a much more grave problem which Legal policy makers find it difficult to address. Music industry, film industry have burdened the onslaught by Internet piracy. Their reliance on traditional Laws pertaining to Copy Right or other laws did not produce the expected results. In this scenario a new emerging revolutionary digital technology that could enable the author to manage , control, permit usage of digital content was most welcoming. Can the paper management IP rights be now digital management IP rights?
Prologue:
DRM an acronym for Digital Rights Management, is a new, emerging and revolutionary technique applied and used for restricting the free use and transfer of digital content. Its basically an aggregation of technologies which specifies, manages, and enforces rules in all aspects of usage and distribution of digital content. The process of DRM is used in a number of media, but is most commonly found in video and music files. In simple terms it can be said that DRM is basically an aggregation of technologies which specifies, manages, and enforces rules in all aspects of usage and distribution of digital content. By using this technique the right holder in a specific work, be it audio or video, can manage his copyright material and the terms and conditions on which it is made available to the users.


WWW and Piracy - 

World wide web evolved as a classic media for dissemination of information at speed of light. Every conceivable form of information in different formats is available on the net. The personal computer regime furthered the access to net by netizens even from remote areas. Along with this boom came the bang of piracy. Piracy in music, audio and video, piracy in written works, piracy in fictional and non fictional works even to the extent of piracy in e-mails. It became very obvious that the Internet was now a big gigantic copying machine enabling unlimited illegal copying of content with out compromising on the standards of quality. Authors, music world, movie makes were worried. Added to this there was a phenomenal improvement in compression technology such as MP3, RAR files etc. Thus the download speed was reduced to almost 10 to 15% of the original down load time. The availability of multiple and perfect copies of various works was becoming a threat to the music industries viability and profitability. Ingenious programmers literally started a free sharing networ work between remote systems like the GNUTELLA which enabled peer to peer copying. The once solid domain of authors rights, performers rights , musicians rights was now crumbling in front of their eyes. Revenues to music industry dwindled due to large scale piracy. The more defiant music lovers even started breaking into precious databanks of the music industry and pilfered the loot to their hearts content. Copyright protection, though sounded formidable was inadequate. The industry was in search of a more "effective and immediate process or technique, which could enable the author or performer or the right holder to control and permit that could either stop such copying or permit the use or download on payment of certain price". The goal was to protect the rights of the author, prevent piracy and encourage digital music commerce. It was inevitable that a strong fool proof system was to be in place to ensure only paying consumers can access media.


Setting standard and self protection:

To fight back this digital piracy the music industry got together and created the SDMI- Secure Digital Music Initiative. The Secure Digital Music Initiative is a working group comprised of over one hundred and fifty businesses and organizations with significant interests in the future of digital music who are working to develop a specification for its secure distribution and securing music across all digital delivery platforms. DRM- Digital Rights Management was one part of the SDMI. In the past few years DRM is developing into a viable systems for IP protection and enforcement. The music industry's prayer for a programme that could stem the tide of unauthorised file sharing is answered in the form of DRM. Indirectly DRM has also started to protect the intellectual property right of the owner there by proving itself to be an important facilitating mechanism for protecting copy rights in free market. Not only specified IP's like Copyright, but through DRM it is feasible several other kinds of rights, like the right to privacy, which incidentally is a fundamental right in many legal systems which can directly or indirectly affect the distribution of the information, the product or even in remote, the services too. It is predicted current approaches to "intellectual property (IP) protection and enforcement" through DRM may render the present legal protection available in form of Copyright archiaic.


Components of DRM:

The following are some of the the broad components and important areas of DRM. This is only a broad indication and not specific related areas.

A. Business objective and Privacy
B. Planning the product, identifying the rights and related documents
C. Basis of use of such rights
D. Management of Legal and other Rights
E. Tools of DRM: Legal and Technical

A. Business Objective and Privacy : Every entity starts with an objective. The objective being the vision of the Company obviously there is a aura of secrecy or privacy around it. The entity could be an individual, a partnership, a private limited company, a trust or a society. It is still not clear as to how DRM could step in at this very nascent stage or the start up stage, where in though there are ideas visualized and visions set there is not enough work done or information or strategy developed to segregate, decide and crystallize the probably course of action, be it manufacturing, programming, developing a prototype etc. It could simply be stated that this nascent stage is the drawing board stage. In such a scenario it is to be seen whether a technique like DRM can be implemented or even protection tools like non disclosure, trade secrecy agreements is simple enough to give the adequate protection at this stage.

B. Planning the product, identifying the rights and related documents: It has been the experience of various Organisation which have implemented the DRM package, either in their simple format or complex procedures, that initial identification of work or product, the recordings of the works, the concerned and right owners, their rights and the works and also their consent to exploit the work. With out elaborating much on this aspect I would restrict my self to explaining a simple example. Lets take one aspect "identification of material and documents in a category of work". Lets take one of the categories of work as being literary work. The products in general in literary work are books, compilations of information, electronic database, computer scripts or programmes, articles etc. Having done this the next step would be to identify the work and who created the said work. This can be done in various ways like inquiring about the owners rights from copyright society (Music Industry) checking for copy right notices and may be also search relevant industry catalogues. It's a general rule that a creator or producer of material holds the copy right unless there is an agreement to the contrary. Authors could be writers, music composers or even software developers. Once such identification of the authors is done then the moral and performers right should be taken into account. In the maze of technology development the system should not forget to respect the moral and performers rights. This can be achieved by detailing all the information about the performer the work done by him etc.

C. Basis of use of such Rights: The basis of use of the holders rights is based on the consent of such right holder. If a copy right user is not exercising his exclusive right himself then he can give permission to other people to do so, through Licenses. Such licenses could be subject to certain payment conditions like outright sale or royalty or licence fee etc. In a digital environment the copyright owner may expressly or impliedly license the work to another. It is to be remembered that almost all common DRM platforms or systems will digitally reproduce the content into the DRM system and the said same content is transmitted through the DRM structure to the end user. How ever in such transmission there is one practical problem that arises. In the multiple reproduction of such content in various servers the transmission and retransmission from one server to another a temporary memory is created till such content reaches the end user. The matter of concern could be such temporary copies created as part of the technical process. Whether they infringe copy right or not depends upon whether the original transmission is authorized. Also under the Copyright act the temporary material which are made a spart of the technical process of transmission content do not infringe the Copyright provided the original transmission is authorized. This would also mean that if a particular work is being transmitted on the internet rights need not be obtained to make temporary copies.

D. Management of legal and other rights: The most common of the rights that could accrue to the author are Copyrights, trade secrets and Patents Rights management is a very crucial stage in the entire process. Normally it can be on two levels, Firstly at the Organizational level and Secondly at the product level. The management of rights can be successfully achieved only when a management plan is put in its place. At the organizational level rights management could include setting up of rights management policies, refining such policies, drafting and managing of agreements, managing the information on rights acquired which would also include knowing from whose the rights were received, how broad such rights are so on and so forth, control and enforcement of licenses supporting licenses and also the revenue collection . Management of rights would also include valuating of rights where under factors like creating costs, time taken to produce are considered. One more aspect is the mode of securing such rights where under acquiring variety of consents and authorizations need to be done. Development of appropriate agreements is also a very vital part of the management. Agreements portray the extent of rights that can be acquired or bargained. These agreements could be assignment agreements which involves transfer of ownership for consideration or licenses which may include non exclusive licenses too etc. Similarly at the product level what is to be attended to is acquiring adequate information on the product information on policies and agreements, enforcement of such rights and also revenue collection support.

E. Tools of DRM : legal and Technical. DRM also incorporates and envisages tools that are vital being Technical and legal tools. Lets examine what they are.
Technical tools: DRM can be performed by several different kinds of tools like a right definition language. Though its is demanding to define a particular language how ever certain works are going on to define such language like extensible Rights Markup Language (eXRML), another such like language being ODRL- Open Digital Rights language. There are also the communication protocols that need to be developed to maintain the homogeneity of understanding the transferring of data.

Legal Tools: They can constitute tools which the legal system provides like the Copy Rights, patents, Trade Marks, the various law enforcement authorities, modes of settlements of disputes like arbitration, court rulings etc. In the matters of evidence technical tools may be needed to show and prove evidence For this purpose legal; tools may have to heavily depend on technical tools. Thus it can be concluded that in the matter of legal proceedings and establishment of evidence it is imperative that legal as well as technical tools are deployed and worked in consonance.

Conclusion:
In this paper we have discussed some of the probable important areas involved in the process of DRM. Its beyonf doubt that DRM is becoming increasingly an important area with its focus on management of digital products. Today the situation is that many a companies are developing their own DRM systems, be it small or large. There are also Companies and entrepreneurs who have developed DRM packages and products on a commercial platform. Some times such companies are also designing and developing tailor made DRM packages in accordance with the specific needs of the Company. Though a standard language and a homogeneous protocol network is yet to be fully developed efforts are being made to speed up the process. It would be only a matter of time before such standardization is implemented at a commercial level.

It is predicted that the know how, development, knowledge and use of the DRM system is likely to be absorbed into normal business skills and practices in next few years. Usages could be free or cheap or even expensive but things are brightening up for the DRM infrastructure.

For creators and all sort of content communities DRM is likely to enable the growth and success of E-market and finally will be the key point in e-commerce system on market of the digital content and will enable a smooth, safe , secure movement of the digital works from the creator and producer to retailers and consumers at a cost. DRM if proved reliable may see authors seek legal advice on more fewer occasions.

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About the authors:

Ashok Ram Kumar:   
Ashok Ram Kumar is the Senior partner at IP Markets . A practicing Lawyer in the niche area of Intellectual Property Rights and Information Technology. Has authored, designed and developed the country's largest Intellectual property website www.iprconsultants.com. He can be contacted atashokramkumar@gmail.com