WIPO
`
`ACMC/1/1
`ORIGINAL: English
`DATE: November 23, 1998
`WORLD INTELLECTUAL PROPERTY ORGANIZATION
`GENEVA
`
`E
`
`ADVISORY COMMITTEE ON MANAGEMENT OF COPYRIGHT
`AND RELATED RIGHTS
`IN GLOBAL INFORMATION NETWORKS
`
`First Session
`Geneva, December 14 and 15, 1998
`
`ELECTRONIC RIGHTS MANAGEMENT AND DIGITAL IDENTIFIER SYSTEMS
`
`by Dr. Daniel J. Gervais,
`Director of International Relations,
`Acting Director of Rightsholder Relations,
`Copyright Clearance Center (CCC),
`Danvers, United States of America,
`
`r:\publish\meeting\gervais.doc
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`TABLE OF CONTENTS
`
`INTRODUCTION
`
`4
`
`1. ELECTRONIC COPYRIGHT MANAGEMENT: A DEFINITION IN TIME AND
`SPACE 5
`
`1.1 Defining Rights Management
`
`5
`
`1.2 Defining Electronic Rights Management 6
`
`1.3 ECMS and Global Information Networks 8
`
`1.4 ECMS: Areas of Application 9
`1.4.1 Interactive Transmissions 10
`1.4.2 Rights Clearance for Reuse
`1.4.3 Digital Broadcasting
`10
`
`10
`
`2. ECMS: ISSUES AND OBSTACLES
`
`11
`
`11
`2.1 Legal Issues
`2.1.1 The Fundamental Issues 11
`2.1.2 Rights Transfer Issues
`13
`2.1.3 A Provisional Conclusion 14
`
`15
`2.2 Standards-Related Issues
`15
`2.2.1 Identification Issues
`2.2.1.1 Existing Identification Systems
`2.2.1.2 Proposed Identification Systems
`2.2.2 Metadata Issues
`22
`2.2.2.1 Print-Related Metadata Discussions 23
`2.2.2.2 Other Fields
`27
`
`15
`19
`
`27
`2.3 Technology Issues
`2.3.1 Synergy Between Law and Technology 27
`2.3.2 The Protection of ECMS 28
`
`2.4 Privacy/Confidentiality Issues
`
`29
`
`3. ECMS: THE KEY TO ELECTRONIC COPYRIGHT COMMERCE 30
`
`3.1 Defining Electronic Copyright Commerce 30
`
`3.2 Examples of Working ECMS32
`3.2.1 ALCS/ByLine
`33
`3.2.2 IMPRIMATUR
`33
`3.2.3 CCC/IFRRO
`33
`3.2.4 Mira 34
`34
`3.2.5 Xerox
`3.2.6 COPYMART
`
`35
`
`3.3 Addressing the Need for Interoperability: The Way Forward 35
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`CONCLUSION 37
`CONCLUSION 37
`
`ANNEX 1 39
`ANNEX 1 39
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`INTRODUCTION
`
`This study on electronic copyright management and digital identifier systems was prepared for
`the first session of the Advisory Committee on Management of Copyright and Related Rights
`in Global Information Networks, as provided for in the Program and Budget of WIPO for the
`1998-1999 biennium.
`
`The study is divided into three parts. The first part, entitled “Electronic Copyright
`Management: A Definition in Time and Space” discusses (a) the concept of rights
`management as it applies to copyright and related rights, (b) the changes brought about by
`digital technology and (c) possible areas of application of Electronic Copyright Management
`Systems (ECMS). The second part examines the legal, technical and standards-related issues
`that must be addressed to implement successful rights management solutions in global
`information networks; existing and proposed identifier systems as well as debates surrounding
`metadata definitions are discussed. The third part looks at the future of electronic copyright
`commerce and explores ways in which existing obstacles to such commerce could be
`overcome. A link between electronic copyright commerce and ECMS is made, and the study
`argues that such commerce will be much more successful for rightsholders and more
`interesting for users and consumers if adequate rights management solutions are found and
`applied. The possible role of various parties in bringing about such solutions is also discussed.
`
`Two preliminary notes on vocabulary.
`
`First, there are (too) many acronyms used in the field of rights management and in standards-
`related work. Yet, it is practically impossible not to use those acronyms in a study of this kind.
`Acronyms used will be defined and a list is provided in Annex 1.
`
`Second, for the purposes of this study the term “work” is understood to refer to an
`(incorporeal) intellectual creation in the literary or artistic domain (protected by copyright).
`That work may have various manifestations (e.g., a performance of a musical work). A
`manifestation may in turn be incorporated in a physical product (e.g., a CD), or a digital object
`(this expression will be defined later). Whenever it is possible to do so, the term “content”
`will be used to refer to both manifestations and products. “Content” is also more neutral than
`“work” as regards related rights.
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`1. ELECTRONIC COPYRIGHT MANAGEMENT: A DEFINITION IN TIME AND
`SPACE
`
`1.1 Defining Rights Management
`
`Before discussing Electronic Copyright1 Management Systems (ECMS), it may be necessary to
`define the concepts that underlie such systems, starting with “rights management” itself.
`
`Without their “electronic”2 component, Copyright Management Systems (CMS) are basically
`systems (or methods) that can identify content (works, discrete manifestations of works and
`related products) and, in most cases, the author(s) and other current rightsholder(s). Using
`that information, a CMS may then be used to authorize users to perform certain restricted acts3
`in respect of the works concerned. A CMS thus usually involves two basic modules: (a) one
`for the identification of content and (b) one for licensing (or other rights transaction, such as a
`full assignment). In many cases, ancillary modules are also considered part of the system, such
`as a payment or account receivable module. But at the core of a CMS are a systematic content
`and rights identification and a licensing tool.
`
`A CMS can be used by individual rightsholders or by third parties who manage rights on behalf
`of others. In the former case, a rightsholder may use the system to track a repertory
`(catalogue) of works, manifestations or products. In the latter case, an organization may
`represent a group of rightsholders and then use a CMS to track each rightsholder’s rights and
`works. Let us mention two examples: a literary agent representing a number of writers, and a
`more common example, a collective management organization (CMO) such as an authors
`society. Most known CMOs are members of the International Federation of Reproduction
`Rights Organisations (IFRRO) or of the International Confederation of Societies of Authors
`and Composers (CISAC).
`
`In a CMO, the mandate to authorize third parties may come directly from rightsholders, under
`a voluntary system, or it may follow from government regulations, for example when the law
`contains a non-voluntary license or creates a right to remuneration that must be managed
`collectively4. In a few cases (e.g., Copyright Clearance Center in the United States),
`rightsholders set the price for each type of use of each piece of content. In a vast majority of
`cases, however, prices are contained in tariffs applicable to a class of content and/or users.
`Those usage fees can be of two main types. First, users can pay an annual fee to use an entire
`repertory. In some countries this is referred to as a “blanket license”, which may be contained
`in the legislation itself. A variation on that theme is the so-called “umbrella” license, which
`covers all content not specifically excluded by rightsholders. These repertory licenses are a
`useful solution in cases where more precise management would be either too costly or simply
`
`1 - The expression Electronic Copyright Management System (ECMS) is widely used. However,
`related rights may also be administered in this way. A better expression would be “Electronic
`Rights Management System”, but we opted for the most common terminology.
`2 - This term may be considered a synonym of “digital” for the purposes of this study.
`3 - Defined as acts in respect of a work protected by copyright requiring an authorization.
`4 - For a discussion of the various CMO models, see Mihály FICSOR. Collective Administration of
`Copyright and Neighboring Rights. WIPO, 1990.
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`impossible. Two good examples are music performing rights (e.g., a radio station that
`purchases a blanket license to broadcast music) or corporate photocopying (a company that
`purchases a license to reproduce and distribute printed material within the company).
`
`The second type of fee is known as transactional. Here a user acquires a license to use a
`specific work or manifestation for a defined purpose. Two examples: first, educational
`institutions that produce “coursepacks” (collections of photocopied material for students) in
`the United States must obtain a prior authorization for each piece of content used. Second,
`use of music in advertising or, in most cases, for recording purposes also works in this way. A
`transactional fee is paid and the value is assessed for each transaction (although pre-existing
`fee formulas may apply). In the transactional model, CMOs either grant a license based on
`conditions provided in advance by the rightsholder, or act as an intermediary between
`rightsholder and user5.
`
`Having seen the functions of a CMS, what changes then when the word “electronic” is added?
`
`1.2 Defining Electronic Rights Management
`
`With the help of computers, the management of large amounts of rights data is greatly
`facilitated and its efficiency significantly enhanced. The “systematic information” component of
`a CMS thus becomes an electronic content and rights database in an ECMS environment.
`Most if not all professional rights managers, including CMOs, have such a database at their
`disposal. The licensing function can also be made easier, even though in practice progress has
`not been as rapid as with rights databases. Many so-called ECMS are in fact simple internal
`processing of licensing functions which are by and large done manually. In some cases, email
`has replaced letters and faxes but a human intervention is necessary to process a license
`request. Full electronic implementation of an automated licensing function into an ECMS, in
`other words the online availability and searchability of catalogues (prices, available content,
`authorized uses), and a full-fledged “lights-out” licensing function (available 24 hours a day
`seven days a week) is still quite rare, but many systems are under development. We will
`mention them later.
`
`When one applies this concept of ECMS to practical rights licensing and trading applications,
`the enormous importance of such systems becomes readily apparent. To start with individual
`rights management, a full ECMS (i.e., with both an automated rights information and licensing
`function) allows rightsholders to maintain their rights data, exchange it with other rightsholders
`and more importantly, to process individual transactions from users, e.g., licenses to use a
`specific work that can thus be granted automatically to individual users. A corporation or an
`individual author or user can purchase the right to use an image, video “clip”, or a song, for
`example to republish it in a magazine article. A publishing house might purchase the right to
`reuse previously published material. Computer software may be sold on line with various types
`of licenses (e.g., use on a single computer, a site license, etc.). When performed online without
`human intervention, transaction costs are kept at a very low level.
`
`5 - While this type of application is newer, theatrical performance of theater plays has functioned under
`this model for a very long time, but does not enter the scope of this paper which focuses on
`diffusion techniques, i.e., on reception of material by users other than by direct personal access
`(presence at a live concert, etc.).
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`The greatest commercial potential seems to emerge when acquisition of the right is
`simultaneous with the acquisition of the content. A number of software and journal publishers
`make content available for download and grant the necessary rights6. Professional quality
`images can be purchased online7.
`
`Third parties using an ECMS might include: (a) a cable or telecommunications company or
`other access provider tracking sales and use in a pay-per-view or pay-per-listen environment
`(assuming that obligations concerning rights usage tracking are part of the agreement with the
`rightsholders), and (b) CMOs which are probably best placed to take advantage of an ECMS.
`CMOs represent a multitude of rightsholders and deal with just as many users and one of their
`principal advantages is this “bottleneck” function, i.e., the ability to put a large number of users
`in contact with a large repertory of content.
`
`CMOs try to make copyright compliance as easy as possible. Their ECMS solutions should be
`able to work both in a “repertoire” and a “transactional” environment. In cases where users
`pay an annual fee for use of a whole repertoire, an ECMS’ role is in the maintenance of a rights
`database that allows users to browse the repertory they are allowed to use (assuming there is
`not a full blanket license covering all works) and possibly a license renewal function.
`
`With respect to transactional licenses, an ECMS acts as a licensing “engine”, but the situation
`varies greatly in terms of the degree of automation. To understand the potential role of an
`ECMS in this content, let us look at an ECMS from a functional point of view. In a purely
`paper-based (“analog”) CMS environment, a user would mail, fax or email a license request to
`a CMO. The CMO would then process it manually and return it to the user. In a slightly more
`automated environment, the CMO would use an electronic works and rights database but still
`process the license request manually. Another step up in the ladder of automation would be to
`use an internal computer licensing system to process the request. At a higher level of
`automation, and in our view the only one that should properly be called a full ECMS, the user
`would search available content and rights online, be able to input a license request at the time
`he/she chooses, probably via the World Wide Web, and then receive a response based on the
`rightsholder’s instructions from the ECMS, in most cases without any human intervention, i.e.,
`at a very low transaction cost.
`
`One can thus identify the most complete ECMS from an end-user standpoint: most users do
`not just want a “right”; they also want the content. It is highly likely that in the future global
`information networks will allow users to search, select, download and at the same time clear
`the right to use a particular work, manifestation or product8. Given the absence of global
`identification standards, however, an issue to which we will return below, an ECMS may not
`be able to easily share works, rights and information relating thereto with another ECMS. In
`
`6 - e.g., the Microsoft and Netscape sites, Lexis-Nexis, Springer Verlag's LINK.
`7 - www.mira.com.
`8 - An example supported by a creator trade association (The American Society of Media
`Photographers) may be found at www.mira.com, where users can “purchase” high-quality digital
`images. Another good example is ByLine, a project sponsored by the UK's Authors Licensing and
`Collecting Society (ALCS), which allows users to purchase journal and newspaper articles
`www.universalByline.com.
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`other words, in today’s fragmented environment, an ECMS may have to work in a closed
`circuit environment.
`
`1.3 ECMS and Global Information Networks
`
`As is rightly pointed out in material prepared by the International Bureau of WIPO for the
`important forum on collective administration held in Seville, Spain, in May 1997,9 until
`recently, copyright management when it was not performed by rightsholders directly was
`mostly known as “administration”. This “administration” was entrusted to organizations each
`representing a separate field, each in contact with a specific industry: music was available on
`records and tapes, films on 35mm and video, photographs on “paper” or film, writings in
`books and periodicals, etc. This is hardly surprising. Each “copyright industry” was similarly
`distinct: there were recording companies, film studios, book publishers and so on. All this has
`changed of course. Carriers are no longer content-dependent and content is no longer
`media-dependent. A uniformity of media applies both to new creations and to almost all
`existing analog ones that may be digitized. In addition, a form of creation which was
`“marginal” has entered the mainstream: digital compilations. Databases, CD-ROMs, even
`HTML documents (Web pages) are compilations.
`
`Digital technology is quite different from its analog predecessors. It has already led to the
`merger of large industries (a number of major industry groups involved in publishing, music,
`film, etc.) and the emergence of two overlapping giants: an “information industry” and an
`“entertainment industry”. In both cases, the type of information and the way in which it is made
`available seems to be almost secondary. The focus is now on content; a clear sign of this shift
`is found in language: film producers, recording companies and publishers, as well as authors,
`have all been brought under the same umbrella term: content providers. The content is the
`message.
`
`For individual creators, this new technology means access to existing material, creating as it
`were a real-time universal library of ideas and content. For them, digital networks also mean
`easier access to a distribution network, but not without its great peril: information overload.
`Digital networks allow access not only to various manifestations of protected works, but to
`information generally, and many users are in fact submerged by this worldwide flow of
`information. Without management, information is practically inaccessible and cannot reach a
`proper audience. In the same way, without rights management, protected content will not
`reach users and rightsholders will not be appropriately compensated.
`
`A complete ECMS should be more than just automated rights clearance. It should allow users
`to locate the content that they want quickly and easily, and then let them clear the necessary
`use rights. If both rights and content are made available in a seamless amalgam (or one-stop
`shop), so much the better. We should also consider in this connection that users frequently
`need to access less than an entire work or manifestation. Users may wish to use (and pay for)
`only the right to use a small fraction thereof10.
`
`9 - See document WIPO/MCR/SEV/97/INF. I.
`10 - “Digital technology makes smaller units marketable than would satisfy the originality croterion.”
`Thomas Dreier. “Copyright Digitized: Philosophical Impacts and Practical Implications for
`Information Exchange in Digital Networks”. WIPO Worldwide Symposium on the Impact of
`[Footnote continued on next page]
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`Finding the material that one wants or needs is a challenge. There are of course large public
`catalogues of bibliographic data, but would a user looking for a particular scientific journal
`want to use, say, the Library of Congress MARC data?11 The answer depends on how focused
`the search is. With more than seven million registered titles in that particular database, a search
`on keywords such as “Science” or “Art” would return hundreds of thousands of “hits”. A user
`looking specifically for the “Canadian Journal of Applied Chemistry”, would have much less
`difficulty finding it. But what can one do with the bibliographic data? The same can be said of
`search engines such as Yahoo, Excite, Lycos, Northern Light and AltaVista. Matters become
`more complicated in non-text fields. How does one search for an image? The answer to those
`questions really depends on the quality and “intelligence” of search engines. Hopefully, ECMS
`providers will be able to rely on advanced search engines to help users locate what they need.
`
`Another key aspect of digital networks is that they know no boundaries and no countries.
`Information, including content protected by copyright, will not stop at borders, and rights
`management must take that fully into account. For example, currently most CMOs operate on
`a national basis.
`
`In these network environments, ECMS will have one other key application: monitoring and
`licensing of interactive transmissions of content protected by copyright. Reuse of transmitted
`material will become a major issue, and hence also rights clearance for such reuse (both off and
`on-line). Let us look in more detail at certain applications of ECMS.
`
`1.4 ECMS: Areas of Application
`
`Most ECMS are designed with interactive transmissions in mind. They may also apply less
`precise forms of management, including the blanket licensing model mentioned above. In fact,
`today the only way to have a true one-stop licensing shop is to combine all models, thus
`covering all types of rights and content. In other words, a one-stop shop must be able to clear
`use or reuse of all or part of a manifestation of any type of content, and may embrace also
`those rights, works and manifestations for which the rightsholder prefers to use less precise
`forms of management, including blanket licenses. Let us look at the most important areas in
`greater detail.
`
`
`[Footnote continued from previous page]
`Digital Technology on Copyright and Neighboring Rights. WIPO Publication 723(e). WIPO,
`Geneva, 1993. At p. 195.
`11 - See below, section 2.2.2.1 (b)
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`1.4.1 Interactive Transmissions
`
`The main area of application of ECMS is to clear rights in content transmitted (interactively)
`on digital networks. The user may obtain both content and rights, or may already have the
`content and need (additional) rights. While the Web is already an immense source of
`information (some of it protected by copyright), cable and satellite operators are competing to
`establish broadband services to provide interactive access to worldwide databases of all types
`of protected content. With broadcasting moving to digital, the volume of transactions of digital
`broadcasts (not interactive) will be dwarfed by the millions of interactive transactions. An
`ECMS is the best, and perhaps the only way to clear rights in and monitor use of content sent
`through these networks. In fact, usage monitoring is already a key issue in the discussions
`between rightsholders and access providers. Simply put, access providers in general agree to
`return relevant market information to rightsholders but want to limit their liability in case of
`user misuse.
`
`1.4.2 Rights Clearance for Reuse
`
`A specific challenge of ECMS will be to allow managed access to material to be reused to
`create new products. This may be done online or offline (e.g., when “buying” a password is
`necessary to use material contained on CD-ROM or DVD). Here also, rightsholders should
`have the option of delegating this task to a third party such as a CMO. Their decision should
`be based on factors such as cost, users’ need for confidentiality of usage data and efficiency.
`Clearly, users would benefit from central access points to help them find what they want and
`clear the necessary rights.
`
`ECMS must also allow users to obtain the rights that they want as precisely as possible, which
`means that ideally each item (or “grain”) forming part of a given work or manifestation could
`be identified and dealt with separately. This important function is known as “granularity”.
`Traditionally, this type of rights clearance is handled manually by a “rights & permissions” or
`“copyright’ department within a company. In some cases, part of it may have been entrusted
`to a third party, such as a CMO. But the important point is that this process which was
`“exceptional” compared to primary trading is now moving to the forefront.
`
`1.4.3 Digital Broadcasting
`
`Digital broadcasting should be mentioned here. It is different from its traditional analog
`counterpart in at least two ways: first, it will offer many more channels, including multiplexing
`of the same program (e.g., different start times for the same film); second, users, if they are
`equipped to record the program on digital media, may want to reuse it. At present, radio and
`television broadcasters may provide CMOs with written logs of their programs, on paper or on
`diskette. Otherwise, sampling techniques are used. A combination of both logs and samples is
`used in many countries. This is done on a country-by-country basis. This may not work any
`longer in a digital environment, because the amount of data generated by the sheer number of
`channels will make this task daunting and in fact probably impossible. Properly functioning
`ECMS should include or refer to one or many coding/identification systems discussed below,
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`which should in turn allow automatic tracking. Standards such as MPEG in the audiovisual
`area allow rightsholders to put in a code before compression takes place12.
`
`2. ECMS: ISSUES AND OBSTACLES
`
`The ECMS concept must maintain the equilibrium between the various interests involved.
`Rightsholders want to prevent piracy and unauthorized use as well as their control over the
`commercial distribution of material. On the other side, users, and in particular consumers, want
`to protect their privacy/confidentiality and ensure manageable access to material. Both sides
`share a concern about the cost of the system, or more precisely the cost/benefit ratio.
`
`Taking these needs into account, we can now focus on the specific issues and obstacles to be
`overcome.
`
`2.1 Legal Issues
`
`2.1.1 The Fundamental Issues
`
`The principal legal issues involved from an ECM viewpoint are:
`
`(a) who owns the rights initially?
`
`In the case of a work, it is usually the author. There are cases where due to an employment or
`other legal relationship (e.g., work-for-hire), initial ownership vests in another rightsholder,
`typically an employer. In the case of a manifestation, other rightsholders may be involved, such
`as a performer or a producer. The ECMS needs to know not who owns the right initially but
`rather who owns the right to authorize a certain restricted act in respect of a given
`manifestation of a protected work, or the work itself (as pure intellectual property), and
`possibly who is entitled to a share of the royalties.
`
`(b) which rights are involved?
`
`Copyright is not a monolith. It comprises a number of different rights. And those rights have a
`separate existence in each country (or a “territory of exhaustion”, such as the European
`Union). We thus have a three-dimensional matrix, with a multitude of “rights” that can, in most
`cases, be separated territorially13.
`
`An inventory of the components of “copyright rights” is found in the Berne Convention and
`many national laws. There are two overarching categories, moral rights and economic rights.
`
`12 - Compression is necessary to send most types of material, owing to the limited capacity of networks.
`Compression is based on mathematical formulas (algorithms) that can drastically reduce the size
`of digital “files” containing text, images, music, etc. A new algorithm for music, called WP3,
`reduces the original file size by up to 90%, allowing music to be broadcast or transmitted on the
`Internet even with today’s limited bandwidth.
`13 - The adoption of international exhaustion may impact on the application of this principle, but the
`principle remains nonetheless.
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`Within the former, one finds at least the right of paternity/authorship and the right to oppose
`mutilation. In the latter category, the most important rights are the reproduction right, the right
`of communication to the public (which includes, according to Article 8 of the WIPO Copyright
`Treaty (WCT), the right to “make available”) and the right of adaptation. An ECMS is
`concerned mainly with rights that can be licensed or traded on a routine basis. It thus seems
`likely that economic rights are better candidates for electronic rights management.
`
`Against this backdrop, it seems that a digital transmission implies making a copy, at least at the
`point of reception. It may involve the right of “distribution”, although a copy is not really
`“distributed” in the traditional, physical sense. Certainly, whenever a copy of a protected work
`is taken from a server (via “pull” or a “push” technology) and a copy is then made by a user
`(on any recordable media), the right of reproduction may be involved. This seems to be
`confirmed in the first of the Agreed Statements accompanying the WIPO Copyright Treaty
`(WCT):
`
`“The reproduction right, as set out in Article 9 of the Berne
`Convention, and the exceptions permitted thereunder, fully apply in
`the digital environment, in particular to the use of works in digital
`form. It is understood that the storage of a protected work in digital
`form in an electronic medium constitutes a reproduction within the
`meaning of Article 9 of the Berne Convention.”
`
`The only open question is to what extent exceptions to the exclusive right of reproduction
`apply. Such exceptions, including “fair use” and “fair dealing”, should have a limited scope
`whenever a commercial activity is involved, or any other wide-scale diffusion that interferes
`with the normal exploitation of the work.
`
`The right of communication to the public, which certainly applies to broadcasting, also applies
`to certain cases of interactive, on-demand transmissions. A question emerges as regards “push”
`technology where information is sent to a user without his asking. Article 8 of the WCT says
`that the exclusive right of communication to the public includes “the making available to the
`public of their works in such a way that members of the public may access these works from a
`place and at a time individually chosen by them.”
`
`(c) under the laws of which country?
`
`This question is of course very difficult to answer on a general level. The traditional theories of
`emission (according to which the law of the country of origin of the communication applies)
`and of reception (according to which the law of the country of reception of the communication
`applies) are both very hard to transpose literally into a digital environment. One of the reasons
`is the multiplicity of countries that may qualify, particularly given the absence of a globally-
`accepted definition.
`
`As regards “emission,” when a user browsing the World Wide Web clicks on a button to
`obtain a piece of content, that content may of course come directly from the site which the user
`is browsing. But it may also come from a different site. Large sites have mirror sites in third
`countries. In that case, should one apply the “fiction” that the content came from the “mother
`site”? In other cases, sites or parts thereof are cached so that the content can be downloaded
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`PETITIONERS'
`EXHIBIT 1008
`
`

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`ACMC/1/1
`page 13
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`from a server closer to the user. Do we need a legal fiction to ignore the actual country of
`origin to apply instead of the perceived country of emission? A practical problem of the
`country of emission approach is of course that servers could be located in so-called “copyright
`havens”.
`
`The reception theory seems simpler, and to a certain extent it is. The country concerned is the
`country where the user is located. But it is not always evident. As a resident of country A, I
`can use telephone lines to connect to the Internet in country B. When certain Web sites were
`banned by a large ISP in Germany in 1996, people accessed the same network from Germany
`by dialing into access points in France and the Netherlands. To the system, those users were
`located in France and the Netherlands. In addition, when a user connects to a large global
`network, the server may very well be located far away, and certainly not in the country of
`residence. These are more evidentiary problems than substantive legal questions, but they do
`matter.
`
`On a close reading of the Berne Convention, Professor André Lucas recently proposed an
`“amended” version of the reception theory, which applies the law of the country where
`protection is required, or in other words the country for which protection is claimed (lex loci
`delicti). This in most cases would be the law of the country in which protection is claimed (lex
`loci), but not necessarily. Courts in a third country might be given jurisdiction by a contract
`between the litigants.
`
`(d) how will the moral right apply in an ECMS environment?
`
`ECMS are not just systems that can return a standard yes and no to a user who wants to use
`protected content. Already, sophisticated ECMS are in use