A voluntary international numbering system — the latest WIPO proposals

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A V O L U N T A R Y I N T E R N A T I O N A L N U M B E R I N G SYSTEM THE LATEST W l P O PROPOSALS 1

i The World Intellectual Property Organization (WIPO) has been considering the implications of the impact of digital technology on copyright for the last few years. Initially WlPO organized a Worldwide Symposium on the Impact of Digital Technology on Copyright in the Harvard Law School in Cambridge, Massachusetts from March 31 to April 2, 1993. 2 A follow-up symposium to the Harvard Conference was held in the Louvre in Paris on June 1-3, 1994. 3 In the General Information document prepared for the followup symposium the following statement appears: "With the advent of interactive digital networks, digital 'superhighways', digital delivery and the other new developments brought about by digital technology, not only some new provisions and new licensing techniques, but also the need for a completely new structure for the protection, exercise and enforcement of rights, may become necessary." As a result of the need for action in a number of areas, including the need for technological solutions to the unauthorized reproduction and adaptation of digitized works identified at the Harvard Conference, Dr Michaly Ficsor, Assistant Director General, indicated in his paper 4 at the Louvre Symposium that the International Bureau had proposed concrete solutions to Member States. At their series of meetings held in Geneva in September 1993, the Governing Bodies of WIPO approved, for the programme for the 1994-95 biennium, an item on the preparation of an international system of identifying numbers for works and phonograms to be used in digital systems. The purpose of this programme item is, to take stock of existing numbering systems for various categories of literary and artistic works and for phonograms, both private and public, as well as of existing deposit/ registration systems for such works and phonograms, since deposit or registration usually involves numbering. WIPO will then consider whether a uniform numbering system is necessary or useful for certain categories of literary and artistic works, notably audiovisual works, computer programs and works stored in digital medium, and for phonograms, and, if in the affirmative, what the form and the mode of operation of such a system should be. Numbering and, in a more general way, identifying works and phonograms WIPO consider would seem to be required, for the administration of rights in an interactive environment. A system to identify such works and phonograms WIPO also consider will be useful, if not necessary, for rights holders for the (collective) administration of rights (i.e. to identify works and phonograms used) and to allow users to identify rights holders or their representatives where it is necessary to obtain their authorization or to pay the royalty to (re)use a work or part of a work, recorded on digital

medium. WIPO indicated that identification would seem to be useful also to fight piracy. Identifiers for works, phonograms (including each carrier) as well as manufacturers would greatly facilitate provisional measures (such as injunctions) and help identify legitimate and pirated copies and the origin of copies. To discuss these and other possible avenues, WIPO held a consultation meeting of interested non-governmental organizations in Geneva on February 14 and 15, 1994. 5 The reaction of those organizations was positive, and they urged WIPO to give this project a 'fast-track' treatment. WIPO has already convened the four working groups established as a follow-up to the meeting, on (i) Musical Works and Phonograms; (ii) (2omputer Programs; (iii) Printed Works; and (iv) Audiovisual Works, respectively. The hope is that concrete and detailed proposals will soon be ready for establishment of such an international system. I have reproduced below the full text of the item adopted by the Governing Bodies of WIPO: "WIPO will prepare, convene and service meetings of consultants of non-governmental organizations and of a committee of experts in order to study the setting up of an international system of assigning, on request, identifying numbers of certain categories of literary and artistic works and to phonograms. In such a system, anyone could apply for the assignment, by WIPO, of an international identification number of a work belonging to a category of works for which the system would be established and for phonograms. The number, together with the title of the work and the name of the applicant, would be published by the International Bureau. Using the system would be entirely voluntary, and no legal effects would be attached to the existence or not of such a number in respect of any work or phonogram. The system would still be useful since the data on which the international number was assigned and the fact that the said data would be published could have some evidentiary value. In view of the absence of any legal effect, the establishment of the system would not require a treaty but merely a decision of the General Assembly of WIPO and/or the Assembly of the Berne Union. Applicants would have to pay a fee to the International Bureau so that the system would be selfsupporting, i.e. the expenses of the International Bureau would be covered from the fees collected. The identifying numbers may also be used for the electronic (particularly digital) means applied to control the extent of use and possibly to identify the protected material used..." (document AB/XXIV/2, pages 23 and 24, item 03 (10). It is important to note that the General Information document for the Louvre Symposium outlines the possible impact of digital technology on copyright and neighbouring rights as follows: "The categorization of works may have to change, the role of some rights may become less important, other heretofore 'secondary' rights may gain primary importance, and certain new rights may have to be recognized.

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Furthermore, collective administration of rights will probably have to replace individual exercise of rights in further fields, and technical means, such as copyprotection and copy-management systems, smartcards, digital sub-codes, identification numbers and the like, may be more frequently applied. It seems that this - in harmony with the globalization of the digital uses of works and other productions - will call for appropriate international norms". Dr Ficsor also comments that: "Collective administration of rights will probably have to replace individual exercise of rights in further fields." This may be particularly true in the case of certain 'small rights' situations, where, due to the great number of works or other productions and uses involved, individual exercise is impossible or at least impracticable. This may be the case in respect of certain categories of works and other productions as far as the works and productions included in multimedia are concerned. However, the freedom of owners of rights to decide what way of exercise of rights they choose and the exclusive nature of the rights involved should be fully respected. (Emphasis added.) It should be noted that the great capacity of digital networks may also allow the application of new methods of exercising rights. Besides the present blanket licensing technique applied by collective administration organizations, another form of 'one-stop' licensing technique may become possible: namely what is frequently referred to as 'permission clearance service'. In the case of such computer-supported - and ever more typically online - services, the licensing conditions and fees may be differentiated within the same category of works or other productions and in respect of the same rights according to the intentions of the owners of rights concerned. Some works or other productions may also be excluded from such a service and may be referred to fully individual licensing. The issue of voluntary collective administration is of some significance to many rights holders, not the least being multimedia publishers, and it is well worth noting that Article 5(2) of the Berne Convention specifically defines for all copyrights that the "enjoyment and the exercise of these rights shall not be subject to any formality". To underline the need for technology-based collective administration I quote from the paper 6 given by Mrs Tarja Koskinen at the Louvre Symposium:

IMPACT OF DIGITAL TECHNOLOGY The advent of digital technology is perhaps the most important element in today's information technology. Digital technology means the storage, reproduction and transmission of material in the form of digits; in binary code consisting of zeros and ones. In numeric form, digital information is generally only machine-readable and must be converted by the machine into some other form before it can be understood by a human being. In digital form: • boundaries between different types of works break down, allowing texts, pictures, audiovisual and musical works to be viewed and heard through the same medium, i.e. a computer screen, •

works can, combined with telecommunication systems, be transmitted anywhere,

enormous volumes of material can be stored in a relatively small space, allowing increased portability, • information is, together with proper software, easily indexed and accessible according to the various needs of users, • any kind of manipulation of information is possible; authenticity and integrity of information are critical issues, • there is a totally new reuse capacity of works; 'original' can be copied over time without any loss in quality. Authors and publishers know today that unauthorized electronic uses represent even substantially greater risks to rights owners than the already present and known damage from unauthorized photocopying. A facsimile paper copy of protected material has a limited life cycle. The copy is distributed to the end user or new copies are taken from the 'first' copy. There are clear limits on the reuse possibilities of photocopies. Authors and publishers are looking for different solutions to deal with the administration of copyright in the digital environment. The somewhat slow awareness of the threats of photocopying and the great damages caused by it have certainly taught a lesson. Examples of Collecting Administrations for digitized copyright works, particularly in the multimedia field, are being proposed for example by Japanese interests. Professor Kitagawa in his paper 7 at the Louvre Symposium proposes that there is a need for a Copymart: a contract-based transaction model for copyright, a registry of copyright and a market for transactions. It consists of two kinds of databases: the copyright market and the copymarket. Professor Kitagawa indicates that the copymart may operate as a global network, making no distinction between domestic and foreign copyrights: "The Copyright market is a database in which individual rights holders or organizations or agents doing business with copyright matters can file their copyright information, including identification of the name of the author and rights holder, categories of copyright, licensing conditions and terms on each copyright and neighbouring right, prices in accordance with the scope and type of one of the copyright work". The Institute of Intellectual Property in Japan has also proposed 8 that there is a need for the establishment of a Digital Information Centre as a collective administration centre in which information related to copyright works is readily accessible and copyright clearance can be efficiently realized. All of these initiatives require secure marking mechanisms, such as embedded digital registration numbers, to lable works so that their copyright owners are easily identifiable for purposes of licensing a picture, an audio-visual sequence, or a piece of music wanted for use in a multimedia work. Such arrangements are then used by a clearing house authorized to grant requested licences or at least to provide contact information for the current copyright owner. For example, the Agency for Protection of Programs (APP) is developing an international system to assign registration numbers to various types of copyright works which APP has developed under the WIPO project. Under the WIPO initiative, to my knowledge, four separate

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THE COMPUTER LAW AND SECURITY REPORT

Working Group meetings have been held on international numbering systems for: • musical works and for phonograms (20th April) • computer programs (25th April) • printed works (9th June) • audio-visual works (27th June) The musical works and phonograms working group noted the the existing system developed by the International Federation of Phonographic Industry (IFPI) and identified the International Standard Recording Code (ISRC). The working group considered that the ISRC was an important existing tool which could be extended to include codes applicable to, for example, performers for use in performing society collection arrangements. As far as musical works were concerned it was noted that a number of identification systems were currently in use including the so-called World List managed by the American Society of Authors, Composers and Publishers (ASCAP). The working group concluded that some sort of additional numbering was needed to assist in the identification of interested parties beyond the phonogram producers arrangement under the ISRC The computer programs working group was divided in its enthusiasm for a possible international deposit system or a network for computer programs. The Software Publishers (BSA and SPA) specifically point out that they have always had their products distributed in digital form and that the industry has an established history with the forms of piracy that affect its works. While those problems are not insubstantial, the industry has never faced any difficulty in identifying and proving ownership of copies of software programs of subsets of program code that would be met by the assignment of new identification numbers. Identification numbers would do nothing to increase the chance of physical detection of illegal software copies held for use or maintained or redistributed on physical media such as floppy disks or CDROM. And once such copies are located and access is obtained through legal process, their identity is readily confirmed through examination of screen displays while the program is run, or by fingerprinting of any unique segment of the software code itself. This applies to computer programs generally and to object-oriented or modular programming as well as the control programs for multimedia products. The proposal to create a uniform numbering system for interested parties for use with multimedia products, which had support from the musical works and phonogram working group, to provide worldwide identification and access to information centres operating under a common network was, however, considered to have merit and was deserving of further consideration. The provision of an international numbering system which could identify all interested parties (authors, publishers, collective administrations, libraries etc.) was well supported by the printed works working group. This group went further and indicated that it may well be vital when considering the issues of multimedia allocation and trading of rights. During this session one of the participants advocated a 'bar code'-based Universal Data Identification System (UDID). This is a secure, medium independent system which, once encoded, cannot be overwritten, except by the originator.

[1995] t 1 CI.5R

Finally, the audio-visual works working group agreed that a numbering system was. important for two reasons. Firstly a numbering system could be used to facilitate the fight against piracy, through the identification of prints, or of their 'originator' - from which the pirate copies were made, or that of the films themselves, since it was sometimes difficult to recognize films whose copies were seized. Second, a numbering system that could be used, inter alia, as a digital sub-code would be extremely useful, and possibly essential, to properly administer rights in new diffusion channels such as digital delivery (video-on-demand) systems. All of the working groups were of the opinion that work should continue on the most appropriate form of the international numbering scheme which appeared to have its most significant application in the field of multimedia. WlPO was also encouraged to set up a network of rights holders and collecting societies so that a numbering scheme could be associated with rights clearance and use licensing. All groups stressed that any such scheme must be voluntary. In addition to the APP initiative I should like to identify that the European Community ESPRITproject 5469: CITED (Copyright in Transmitted Electronic Documents) is a project worth getting to know. 8 The project is developing a generic conceptual Model to be applied to digital information irrespective of the industrial sector concerned, that will provide countermeasures against various accidental or deliberate acts of piracy. Finally I am also aware of proprietary software which associates a unique message with computer images provided by a company named MOR. 9 Three levels of identification are provided including a header placed at the top of the file to be protected, fingerprints which are designed to be very difficult to erase and ID sentences which contain characters, names and dates such as a (copyright notice). The fingerprints and ID sentence remain after manipulation and fingerprints can be encrypted making it impractical to remove. Known as Fingerprinted Bitmapped Identification (FBI) it is designed to provide irrefutable evidence that copy data belongs to the originator. Such methods are likely to have an important role to play in the protection of copyright works in digital form. Robert J Hart, Report Correspondent

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