Argentina: Intellectual Property Questions As Regards The Creation And Use Of Digital Image

Last Updated: 28 March 2001
Article by Antonio Mille

1. What Are Digital Images?

Until the second half of the XX Century, information was destined to be understood, developed and transformed by the powers of the human mind. It was externalized by means of different languages and codes (the letters of the alphabet, the combination of colors, musical notes, etc.) and were supported by various material bases (paper, photosensitive film, magnetic tape, etc.). The combination of these techniques produced the "analog" information physical media, such as books, magazines, records, cassettes, radio and television broadcasting, etc..

Some "analog" information reproduction techniques enabled information to be expressed directly on the material base intended for the communication of the content to the end user: hence, drawing or writing on paper, or stone sculpture. Other "analog" techniques used different intermediaries between the author’s externalization and the material base that reaches the public: this is what happens with photography, whose specimen derives from the developing and printing of a negative, or with the bronze sculpture, that comes from the previous making of model and mold.

The way to present the information changed with Computers, since in order to be suitable for being processed in electronic data processing systems, any information should be expressed by employing a binary code, one of whose signs is the presence of current (symbolized by digit "1"), the other being its absence (symbolized by digit "0"). By combining ones and zeros in organized series (for which seven bits plus one control bit were chosen, and these eight-bit series were called bytes) it is possible to express signs representing basic information units, such as letters, numbers, sound pitches, colors, etc.. The sequence of bytes forms files capable of being interpreted directly by the data processing systems and indirectly by the human being.

Thanks to the multiplication of the codes used in the data processing systems and to the existence of a wide range of peripherals which can be connected to the former, it is currently possible to capture almost any phenomenon and enter it into the systems (e.g., recording a video recording directly on the computer memory). It is also possible to translate into digital code an existing representation on analog base (e.g., scanning the illustration of a book). Representations can also be produced by using systems as an intellectual creation tool (for example, by drawing an illustration "on the screen").

Digital images are the result of the use of the techniques above referred to, all of which provide files in which an image captured, translated or made by computer means is described through a series of bytes. These digital images may be considered from different points of view:

a) For those who view them on a screen or printed on a solid medium, they are representations perceptible through the sight, and therefore, they are not different as regards their use, purpose and utility from the images whose original support is based on "analog" techniques.

b) For those who consider them from the point of view of their reproduction technique, they are digital computer files. There exist different technical possibilities for the production of files capable of handling "inputs" and "outputs" of data corresponding to images.

Graphics files contain the description of a design. Bytes indicate to the system the equations or algorithms corresponding to coordinates or vectors that will locate points on an ideal plane, to produce any type of lines, as well as the size and color of those points. Some graphics files create the feeling of motion to whoever watches them being displayed on screen. This is obtained by changing within certain time intervals the description for the whole or part of the coordinates of the design. Among these files we find those of types .3ds, .cad, and .wmf.

Image files
contain the description of the content of a grid formed by pixels arranged in columns and rows. The description indicates the color and brightness of each pixel. On being printed or displayed on screen, this group of pixels is perceived by the human being as shapes with color 1 .Amongst these we find those of types .bmp, .gif, .tga, .jpg, .tif, and .cmx.

Files
containing the description of images in motion are usually called video files. They are similar to image files, but since they are displayed repeatedly with the frequency necessary to provide the human brain with the illusion of motion, are used in series of up to 30 frames per second. Generally, they also contain the description of sounds coordinated with images 2 ,3 . Some video file families are: .avi, .mpg, .vdo, .xdm and .mov.

c) As regards their legal nature, digital images present the traditional dichotomy between the supporting medium and the content supported, giving rise to the existence of different interests, protected by various legal remedies:

"Contents" totally or partially made up of images (illustrated texts, photographs, video recordings of objects, etc.) protected by any of the intellectual property regimes (Copyright, Trademarks, etc.) or placed by the law in the public domain.

"Logical media", made up of digital files that express the information in such a way so that it can be utilized by data processing systems. We will see that there exist various systems that can afford legal protection to these files.

"Physical media" (magnetic disks, optical disks, etc.) on which a copy of the logical media expressing the contents has been recorded. They have the protection proper to and characteristic of personal property.


2. Processes That Image Files Undergo

Leaving aside the differences that they may have with the original existing in the real world or supported by the "analog" medium to which they belong, digital images are rarely commercialized in their "original" digital state, just as they were captured, translated or made.


2.1. Processes To Improve Suitability For Use

In many cases, digital images undergo processes tending to add practical (and consequently, economic) value to them, being aimed at a certain kind of use.

Modifications, that is to say, additions, suppressions or changes are frequently made in the substance of the content. When, for example, the background of the main image in the representation of a monument is "cleaned".

By means of restorations an original that suffered damage or degradation in its original "analog" medium is either put back into its original state or is enriched by new expression techniques (for example, giving tridimensional effect to an originally "plane" image).

Compression (through procedures such as unifying redundant information or suppressing the information having ranges beyond the perception capabilities of human organs) reduces the size of files in order to facilitate their storage, transportation, transfer, communication, etc..


2.2. Transformation Into Samples "Without Commercial Value"

There exist other processes that reduce the commercial value of the digital image transforming it into a mere "sample" which is useful only for promotional purposes, such as the thumbnail (reduced image) used in catalogs to enable visual identification. These images that the data processing systems show on a small scale, with low resolution, as can be easily downloaded, are suitable for meeting on-line distribution and marketing needs. They are not useful for "professional" use, so they can be spread or made widely known with less precautions.


3. The Wrapping Of The Digital Image

Files containing digital images processed with a view to their commercialization not only correspond to the different types of files but also can be "packaged" in logical containers intended to facilitate the storage or distribution by means of certain hardware and software platforms or to protect the rights of those who have produced or distribute the images. These logical containers are usually called digital objects, which Patrice A. Lyons defines as a "set of sequences of bits, including a single identifier for the object, called handle".

Thus, in the value addition chain we have a content many times coming from the analog world, but enriched with digital processes, a file serving as a logical support for the content and a digital object as a functional "wrapper" of the file.

A considerable part of the on-line image commercialization strategies (above all those addressed to the consumer public) are based on the use of digital objects as a security and management tool.

The digitization by different operators of the same content originally supported "analogously" brings about remarkably different results: any format can be chosen; a higher or lower level of detail can be adopted; different fonts, layouts, backgrounds, etc. can be used; it can be compressed with more or less effectiveness, and so on. These results will also have different potential for its exploitation, and certainly different market (saleable) value.


4. The Raw Material Of The Digital Image

As we pointed out, digital images can be "natively" digital (captured by cameras that record images in motion or still images, or designed by means of systems) or come from the digital processing of preexisting images in the "analog world". Furthermore, digital images can represent objects existing in the real world or purely imaginative.


4.1. Material Taken From The "Analog World"

The greatest intellectual property problems arise with respect to images representing objects of the real world or which come from the "digitization" of "analog" images. Among these materials we find:

  • photographs;
  • motion pictures;
  • works of art;
  • buildings;
  • objects not protected by the Copyright Law that form part of collections.

  • 4.2 Processes That "Analog" Materials May Have Undergone

    Intellectual property problems get worse if a considerable part of the material that we currently handle as digital images comes from the repeated processing of the preexisting "analog" materials. These processes are not necessarily transparent to the user of the digital image, and they may easily go unnoticed.

  • many photographs were included in printed publications, sometimes with modifications or documentary additions;
  • printed publications and photographs have been in turn photographed by third parties so as to obtain slides.

  • 5. The "Right To Digitize" And The "New" Authors’ Powers

    Digital technologies make it possible to carry out operations which were not feasible before, and take advantage of the intellectual creations through new methods. These operations and methods can be seen as new manifestations of the exploitation rights currently recognized by the laws to copyright owners, or as acts not considered by the legislation in force, that claim to be regulated.


    5.1. The "Right To Digitize"

    "Digitize" means the action of subjecting any "analog" base supporting a content (the paper supporting the text, the cloth that incorporates the plastic work, the phonomagnetic record housing the phonogram, etc.) to the suitable technical process to produce a file supporting the same content.

    Although the right to authorize or prohibit the "digitization" is clearly an act of "exploitation", it does not appear explicitly in any national or international substantive law text. It does not constitute estricto sensu a "reproduction" in the broad sense of article 9 of the Berne Convention, though undoubtedly, in the current state of technique, it leads to a "reproduction", since it is difficult to imagine somebody making such a process not for the purpose of recording the result on a digital storage medium. Since "digitization" is the first link of the chain of acts (digitize - store - publicize - transmit - communicate) through which a work till then supported "analogously" can be exploited in the digital environment, the reservation of this power by the holders of contents currently on analog base should be especially guaranteed. An explicit provision to that effect, both within national rights and international treaties, would be beneficial.


    5.2. The "Storage Right"

    In the on-line distribution process, contents are housed in computer memories from which they are taken by users through interactive procedures. Being this storage another necessary step in the new chain of acts of exploitation of contents as summarized in the previous point, what has been heretofore said with respect to "digitization" applies to the power to authorize or prohibit the storage.


    5.3. The Right Of "Making Works Available To The Public"

    Though the official "digital agenda" did not make room for the explicit mentioning of "digitization" or "storage" rights, the recent WIPO Copyright Treaty made expressly clear in its article 8 (Right of public communication to the public) that the author’s right of "communicating to the public" comprises "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", clearly referring to the on-line distribution systems.

    To the effect of the provision cited, "making works available to the public" is equivalent to storing the copyrighted contents in a site accessible by means of communications. So in the end, both powers are exercised in the same way.


    6. "Rights In A Cascade" In And To Digital Images

    The existence of a "cascade" of rights that arise from the same source and grant to different owners the same powers is typical of Copyright Law, with the peculiarity that many times these rights are labeled as "exclusive". 4 .Digital images are also subject to the rules of the genre and serve as support for an important plexus of legally protected interests that generally belong to a certain number of different owners.

    In some cases, the rights that we will mention receive in comparative law a practically universal recognition; in others, they are treated diversely by different legislations (such as, for instance, the right to authorize or prohibit the reproduction of the image of a work placed within a public place). Certain holders of rights have been authorized by holders of antecedent rights to exploit them, while in other cases no previous relationship or authorization has existed (such as, for example, photographs that show a street including commercial signs or emblems or advertising with registered trademarks). In some cases there exist license agreement provisions effective and valid between the parties, but that do not bind third parties (for example, in the case of images digitized with authorization from the museums); in other cases, the preexisting rights exploited are in the public domain.


    6.1. Intellectual Property Rights

    The assets protected by different systems affording protection to intangible rights in general, and to intellectual property, in particular, that can be contained in a digital image, are very numerous. Even more numerous may be the holders of economic and moral rights therein if we take into account the heirs, assigns and the never-ending amount of licensees with more or less broad rights in time and space. For the purpose of the analysis of our problem, we will mention the protected legal interests of:

  • the authors of works of art (painting, drawing, sculpture, architecture, etc.);
  • the administrators of the public domain, in the countries where the same is under an official trust;
  • the performing artists;
  • the photograph or audiovisual works models and "live dummies";
  • the celebrities, sportsmen, and other holders of "right to the image";
  • the authors of photographs and audiovisual works;
  • the editors of printed publications from which images were taken;
  • the authors of compilations from which images were taken;
  • the "manufacturers" of databases;
  • those who made the scanning of preexisting analog images;
  • those who processed the digital image;
  • the owners of trademarks represented in digital images.
  • Any of these holders could have a right of action for the exercise of rights having a bearing on the use of digital images.


    6.2. Other rights

    In addition to intellectual property rights, there are other rights protected by the ordinary law, such as the personal and real property rights belonging to museums, collectors, governments, and people in general. As some digital images (many, in the case of news miscellany and sports) come from television programs, the rights of the radio broadcasting entities in their emissions should also be considered.

    6.3. The rights of the creator of digital images

    In addition to the rights pertaining to the "analog" stage of the image (when the image has that origin), there are such other rights as may belong to the author of the "digital" version. The creation of the digital image implies a vaster and more complicated operation than the mere capture of the image and its recording on an electronic memory. It requires the making of decisions and choosing among different possibilities on:

  • focusing;

  • framing;

  • fixing the "density" of pixels;

  • establish la "palette" of colors;

  • as well when performing a series of other non-compulsory, but very frequent, operations, such as mixing or coordinating the image with others, cutting it out, subjecting it to morphing, change its background, giving to it different textures, etc..

    The addition of value that will enable a wide exploitation of the digital image also requires the exercise of technical and artistic capabilities, above all to describe properly the image with words and codes that facilitate its inclusion in indexes, resulting in its recovery by users interested in that subject or view, and to document certain images so as to connect them with the aspects of reality (geographical, historical, technical, etc.) they express.

    The legal nature of the result of the "digitization" of images is not perfectly defined. If we take into account the nature of the content, we should think that digital images are works of the fine arts when they show a result of drawing techniques or "collage" on the screen and that they are "photographic works" or "audiovisual works" when they result from the capture and process of a still image or an image in motion taken from the real world or from a preexisting analog medium 5 . The distinction may have significance since in many legislations special principles are devoted to "photographic" and "audiovisual" works 6, while the system which is generally more favorable applies to the majority of works, including the fine arts and works of indeterminate genre7.

    Choosing to stick to the nature of the content is rational, since it would be difficult to sustain that something changes entity (and therefore, legal nature) whether its supporting medium is analog or digital. However, it is common to verify among "cyber-artists" the conviction about the autonomy of their art, that they identify according to the techniques employed to generate and support the content. If it is shown that these opinions are valid, the Law shall perhaps recognize the existence of a new artistic genre, and study the eventual need of devoting to it certain special principles.

    On the other hand, the "digitizer" of images may aspire to benefiting from the protection that the Law grants to digital files as such. Some legal protection against the parasitic exploitation by third parties of digital objects has been repeatedly proposed to organize. It is not just a question of granting a proprietary right preventing third parties from digitizing on their own account the content previously digitized by others, but of the prohibition of reproducing the digital object made by others, taking advantage of someone else’s effort. This protection can be provided by means of Private Law institutions such as those relative to unjust enrichment and unfair competition8 . It can be also organized within the framework of Intellectual Property, creating a new "related" right, of the type proposed in favor of the "manufacturer" of databases9.

    Objections have also been raised about this type of protection by those who consider that there may be digital objects produced by automatic processes not implying an investment to defend. This objection is overcome both taking into account that in those cases the second digitizer will fulfill his duty with the same ease and without the need of resorting to the copy, and providing for the addition of the "substantial investments" requirement as contemplated by the American proposal for the protection of the content of non-original Databases during the discussions about a possible international instrument on the subject.

    The fact is that files constitute an economic value (and therefore, a legal interest) in themselves, and the "makers" of "digital objects" of any kind (editors of electronic text, digital phonograms, digital or digitized audiovisual works, "raw material" [such as "samples" or bank images], etc.) are more numerous and make larger investments, and which are for the community as useful as or more useful than, those made by the database "manufacturers". They undoubtedly deserve a legal protection not less than that which is being organized for them. If such a protection existed, the creators of digital images – in all fairness – would benefit from it, adding a legal remedy to those they already have as authors of creations protected in their substance.


    7. Intellectual Property Problems

    With the elements of judgment in hand, we can now review the intellectual property problems that digital images present.


    7.1. Problems Relative To Public Domain

    One of the bases of intellectual property is to assure a balance between the interest of creators in enjoying on an exclusive basis the result of their efforts, and the interest of the community in having access to the greatest quantity and best quality of intellectual creations. Since monopoly and free access are antithetical terms, the duration of the Copyright protection is an essential resource to assure the balance sought: during their life, and for a long term reasonably covering the life of their lineal heirs, authors enjoy exclusive rights; once that term expires, the work comes to be in the public domain and all the members of the community may use and enjoy the works.

    "Traditional" Copyright had no difficulty in attributing exclusive rights to those whom produce works deriving from public domain works. Thus, an asset that was totally in the public domain comes to be private property again partially (in the derived version), but the original version always remain available to the public and to other eventual "derivers". The same legal principles can contribute to producing less desirable results if the physical and legal control over certain originals enables to constitute "de facto" monopolies for digitization, from which arise "de facto" monopolies for the exploitation in the digital environment of the only or best digital image of that original.

    The exercise of the powers emanated from property rights, that allows access to personal and real property to be denied, as well as the limitation to the use of cameras, lighting devices, etc., that the curators of many collections impose, may contribute to the strengthening of those "de facto" monopolies. The same effect may be caused by the "de jure" monopoly created by license agreements in whose object property which does not belong to the licensor’s private domain10 are included. In this way, the balance of interests that Intellectual Property Law is intended to protect may be altered to the prejudice of the two terms of the commitment, since the fact that property comes to be private again does not enrich the generators of new intellectual creations, and deprives the community of property that the authors assigned to it when the term of exclusiveness expired.

    A possible solution to the conflict would be to make free the "digitization" of any work in the public domain, recognizing that each "digitizer" has an intellectual property right in and to the derived work produced by him, with which the balance of interests would not be different from that obtained in the "analog" world.

    In the information society global environment, a standardization of protection terms should also be attempted, to prevent what is protected in a territory from being freely used in another, and vice versa. Likewise, it would seem fair to tend to a standardization of the terms of protection for the various categories of contributors to intellectual creation (authors, performers and producers) since in fact, the disappearance of the right of a rihgtholder will not be to the benefit of the community of users but to the benefit of the rest of the rihgtholders with a current and valid right, who may thus continue receiving the price that the market assigns to the private domain property but distributing it among less co-owners.


    7.2. Problems Relative To The Plurality Of Rightholders

    This is also a factual problem. As it arises from the considerations of point 6.1, digital images are suitable to support the rights of an increased number of holders. It is not possible for the user to determine how many and which of those holders have rights in and to the image he is interested in, and in general, the small volume of the operation makes it practically impossible to devote the time and resources that would be necessary to make a serious audit of the intellectual properties affected. Many normal sources of provision of digital images warn about the limitation to the private use of the material they deliver.

    In view of a practical impossibility and a high legal risk, the remedy could consist in the independent production of images certainly free of legal risks or in resorting to a collective management organization taking charge of guaranteeing to users peaceful use, and of distributing profits among the holders of rights. A solution of this kind has been repeatedly proposed11, but no attempt has been made so far to put it into practice.

    Proposals neither to create voluntary systems of unified12 contractual administration nor to institute compulsory license systems have prospered13 .

    For the time being, it seems that in spite of everything, there prevails the contractual solution with the producer or distributor of the digital image as guarantor of the legitimacy of the content offered to the public14. However, that contractual solution may appear to be insufficient for certain uses, since a considerable part of the licenses forbid the electronic distribution of the licensed material, so the same would not be legally suitable for being included in material (articles, advertising, messages, etc.) edited or posted in a WWW page, which rules out one of the most frequent uses of digital images in the on-line environment.

    7.3. Problems Relative To "Moral Rights"

    Not all the Copyright systems in the world guarantee "moral rights" to authors, but the respect for them forms part of the problem of the international protection of this kind of interests, according to the provision of article 6bis of the Berne Convention15. Since the on-line environment, by transnational nature, is one of the natural ambits for the use of the digital image, that of moral rights turns into another problem to be solved, so much so that these rights are protected by means of criminal rules by different legislations.

    The problem increases since these "moral" rights are considered in many cases inalienable and imprescriptible, so they might be exercised by their owners or by the owners’ heirs notwithstanding the indifference or opposition by whom may have licensed the use exercising proprietary rights.


    7.3.1. Moral Right Of "Integrity"

    A digital image (like a photograph or a motion picture) does not constitute a perfect reproduction of the originals. The quantity and density of pixels, the quality and range of the palette of colors, the right focusing and framing, the measures of outputs set up by screens and printers, limit the technical possibilities and impose differences with the "analog" original more or less perceptible by the public. It is not possible to define with precision and in abstract the boundary between "innocent" modifications and those implying harm to the honor or reputation of any of the so many copyright owners that may claim rights in and to the image (for example, the author of the sculpture that disappeared from sight when the framing of the photograph of a building was reduced).


    7.3.2. Moral Right Of Paternity

    Likewise, it is hard to define the correct way of attributing the paternity of a work that receives so much varied contributions, many of which remain anonymous. In addition to the difficulty of supplying information (most of commercial digital images do not contain data about their author) there exists the difficulty of displaying that information in a way compatible with usage.


    7.4. Problems Relative To Fair Use / Quotation Right

    Some of the problems of the users of digital images could be solved by application of the exceptions founded on the fair use of the Copyright, or on the "quotation right" of the Civil Law countries16. Again, globalization introduces the risk of non-homogenous provisions which can be judged according to different criteria by courts distributed throughout the world.

    Both exceptions have similar effects, but both their justification and extent are different. The "quotation right" allows critique or essay authors (not mere "users") to include in their works brief and pertinent citations of the work of other authors, fair use also protects use (not only mere citation and not only by authors) for educational and journalistic information purposes. But, neither fair use nor the "quotation right" apply to performances or to rights such as the right to personal image, and the "quotation right", in addition to being much more restricted in the amount of usable work owned by someone else, is limited to musical and literary works, not comprising photographs, motion pictures and plastic works (which fair use does comprise), which constitute the main raw material of the digital image.

    In brief, except for the very clear case of the brief and pertinent citation of a text or musical phrase, it will be difficult for this type of exception to provide a safe refuge throughout the world for those who may make a non-authorized use for any purpose whatsoever of digital image with someone else’s content. In the on-line uses the solution could perhaps come from the use of hyperlinks that allow to display before the user’s eyes digital images that are not reproduced in the page of whom hyperlink them or allows them to be hyperlinked. The issue of hyperlinks is one of the most suggestive that the current Copyright Law presents, and on which it will be worth keeping an eye open in the immediate future.


    7.5. Technical Protection And Its Legal Defense

    Since they have been officially recognized a function not only lawful but also legally protected, technical protection measures entered decisively the plane of legal concerns. These remedies differ from the "formalities" that some legislations establish as a requirement for the protection of works of certain genres17, from the intellectual property reservation notices of the type that some national legislations or article III of the Universal Convention still provide for18, and from the warnings with which authors seek to discourage those who intend to go beyond the limit permitted to legitimate users of a published work. They are technical means that serve to put an obstacle to the making of operations that the intellectual owner wishes to keep under his control. Let’s revise some of them:

    Key words (passwords) or personal identification numbers (PIN) constitute the first level of defense. When these safety measures are placed in the points of access to the on-line files, users should identify themselves and/or undertake to respect certain conditions, which may include payments. Although the countermaneuvers to "surround" these filters or to obtain information about valid keys that could be infringed are within the reach of a great deal of hackers, these measures are effective with respect to the greater part of the users.

    Another low-level defense (of the "passive" type) which is specifically used for the protection of digital images is the spreading for advertising and marketing purposes of low-resolution samples which are only replaced by the commercially valuable file when the latter is transmitted to the licensee through a safe channel, after the contract is established and the price paid.

    Another "passive" technique that enables the spreading with less risk of digital images of medium or high resolution, is their distortion by means of additions or suppressions such as the sectioning, superimposition of signs or words, etc.. It enables to appreciate best the quality of the original offered and is replaced by the same by equal means and under the same conditions indicated in the previous point.

    "Watermarks" or "tattoos" constitute "active" techniques intended to mark the digital file and/or the screen or printer output that the same produces with distinctive indelible characteristics (perceptible or imperceptible to the eye), repeated throughout the content and that follow the digital object throughout its transfers by communication means and its eventual copies or modifications, that identify the digital image and make it possible, if necessary, to show its origin19. Its principal aim is to dissuade professional users from making undue use of the content and to serve as proof in case of conflict20.

    "Encryption" of the digital object that supports the digital image is one of the "stronger" "active" technical measures. It consists in resorting to any kind of key to "conceal" the sequences of bytes that make up the file, so that nobody not in possession of the key may "clear it up". It is ideal for the distribution of high-cost digital images to usual customers, but, – due to the administrative difficulties and the resulting cost of preservation and confidential transmission of keys – is not suitable for small or occasional operations.

    Another "strong" "active" technique takes advantage at the same time the virtues of the encryption procedures and the surveillance that the software intelligent agents may keep. Contents are encrypted and housed together with their guardian software in a digital object, circulate enclosed in that digital object while they go around volatile environment (including any buffer and any communication means) and are only decrypted when they get to the final destination21.

    The WIPO Copyright Treaty has incorporated among the obligations of their Member States the granting of a certain level of legal protection to technical protections, establishing in article 11 (Obligations concerning technological measures)22 the following:

    Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

    This rule – that has not been already included in national regimes – was the object of strong opposition by those who tried to avoid the disqualification of electric household appliances or computers and computing devices suitable for being used for unprotectedness purposes. Its final wording makes it an obligation to afford protection through civil or criminal law against the conduct of whoever commits "acts of evasion" of technological measures. It is not required, however, that the Member States also provide protection against any person who may provide those infringers with information of technical resources that enable them to behave in such a way. The treaty imposes two conditions for the right to protection to arise: a) that technical measures should be "effective" (any of the measures we have just mentioned should be regarded as such); and b) that the use or exploitation of the work made by whom "surrounded" the technical measures should not have been authorized by the author or person authorized by the law23.


    7.6. Information For The Administration Of Intellectual Property

    Files containing digital images (as any other digital medium supporting contents) serve to record, together with the data that encode the image itself, others with different functionality24. Among those data there may be information records referring to the identification of the content, its ownership, and the conditions under which its use by third parties is authorized. These records, because they are at the top of the sequence of instructions, have been given the technical name of headers25 and have been named in the international legal jargon, Rights Management Information. Instructions of programs performing information functions about uses and users or protecting the prohibitions imposed by the distributor26, may also be included in these records. The processor, on loading the file in the RAM memory of the user computer will read those data and process those instructions.

    In the same way that a legal protection was organized for technological measures, the digital code sectors have been sought to protect, where is expressed the information necessary to manage the intellectual property rights referring to the identification of the digital object, the works, the performances and other intellectual property, and of the holders thereof; the conditions and ways in which use is authorized or forbidden, the rates or fees required, the collecting entities or accounts, etc.. What is protected is the security that the signals intended to allow the individualization of rightholders and the administration of their rights shall not be eliminated or annulled by whom intend to use the contents without permission, and shall not be altered either to divert the benefits to other persons than the legitimate successors.

    Article 12 of the WIPO Copyright Treaty 27 establishes with respect to that:

    Obligations concerning Rights Management Information

    (1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:

    (i) to remove or alter any electronic rights management information without authority;

    (ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

    (2) As used in this Article, "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.

    So far, this principle has not been implemented in national legislations either. It could be reasonably be expected that a voluntary agreement between among the interested parties (or a new international development) should enable to harmonize the location, conformation, configuration and encoding of these records, the only way to assure the successful practical application throughout the different technical platforms and the world geography.


    7.7 Licenses And Implicit Licenses

    For constituting a law that the parties should observe, the terms and conditions of licenses are highly valuable to protect legally the digital images that on-line and off-line distributors offer to the public. Save exceptional cases of major users that deal "face to face" with the owner of the images, most of these agreements correspond to the variety of adhesion contracts known as Shrink-Wrap in which the contract offer is expressed in the conditions written in a formula, and the wish to accept through the breaking of a package wrapping or the use of the content after the user has knowledge of such conditions.

    The distribution of contents through the Internet has given rise to the development of the variety of licenses which is called Point-and-Click, which constitutes the on-line equivalent of the Shrink-Wrap contracts. Under these conditions, the user who enters a WWW page is required, "making click" on an icon, to accept certain terms and conditions for the use thereof, or he is required to type and enter certain information or enter a command or send to the administrator an electronic message with a certain content, as a requirement for being able to download a digital image. To the extent that the user’s participation – since physical actions isolated and different from the use of the content are required – is more active and specific than in the case of Shrink-Wrap licenses, the binding value of this type of contracts is considered much safer28. The first cases heard by courts as regards the validity of obligations purportedly contracted upon the acceptance of Point-and-Click agreement proposals seem to confirm this opinion29.

    It should be remembered, finally, that several opinions30 have pointed out that whoever – without making reservations or resorting to any technical or legal means for the restriction of uses – places in the Internet environment any kind of contents (including digital images, naturally) in any way that according to the foreseeable use by the rest of the Netizens, the facilities supplied by the ordinary technical resources, and the habits and customs of the environment, intended to be the object of downloading or of new postings, grants a tacit license to make said uses. To the extent these legal opinions are in keeping with the Nettiquette, it is very important and helpful that those who distributes digital images should stress and highlight the intellectual property reservation on them and the commercial nature of their being made available to the public.


    8. Conclusion

    The supporting medium and electronic distribution of digital images forms part of the current that gives life to a society abounding in information in suitable languages to make it available to the public. This technique makes it possible to incorporate into that current precious assets that were previously reserved to be used by reduced circles and at the same time stakes the legal interests of a vast variety of rightholders.

    It is important for legal specialists to hone the legal principles that guarantee that all those who contribute immaterial property supported by digital images shall obtain the

    material and moral benefits resulting from their contribution and that at the same time the community enjoys with respect to the original supported by said digital images the same freedom of access that the public domain regime traditionally guaranteed. It is equally important that international works assure a sufficient degree of harmonization in the Intellectual Property Law so that these principles may provide legal security to those who create, distribute and use such immaterial assets throughout a global Net.



    Footnotes

    1 Pictorial art has long shown that the feeling of color can be achieved indistinctly by amalgamating chromatic components in the matter used to paint, or by grouping points of several component colors, so that the mixture is formed “in the brain” of the public. According to their density, pixels can enable any of these two procedures of chromatic expression.

    2 Sound files contain the numerical description of a sound wave. They enable the reproduction of tones, volumes and timbres, sending the sound reproduction system of the computer an exact copy of the noise or of the music originally recorded. This is achieved by measuring the height of the sound wave at regular intervals of time (i.e., taking “samples”) to describe the curve that the sound wave makes. Musical sound can also be recorded by means of MIDI files that contain the description of the command actions of a musical instrument (e.g., for a piano: pressing force, time during which the key remains pressed, and speed at which pressure on the recording is relaxed). They serve to send musical execution commands to electronic musical instruments or to the sound plate of computers.

    3 Acceso a representaciones digitales de imágenes en color: Una perspectiva desde el derecho de autor y de las comunicaciones, DAT, Año VIII, No. 91, page 1.

    4Though it seems curious, in practice, this multiple ownership of exclusive powers does not result in conflicts, since the birth of an exclusive power derives from the previous authorization granted by the owner of an antecedent right (for example, the exclusive right of a performing artist to authorize the recording of his performance arises after having been authorized by the composer to perform the work).

    5 In the latter case, there will exist a derivation of the work that will require the authorization of the author of the reproduced work in the event that the same is not in the public domain.

    6 For example, different criteria with respect to their ownership and authorship like in article L-113-7 of the French Code de la Propriété Intellectuelle, or different protection term like in section 13 (1) of the U.K. Copyright, Designs and Patents Act 1988.

    7As per 2 (1) of Berne Convention, “every production in the literary, scientific and artistic domain” (not genre) is eligible for protection, including all original intellectual creation expressed in a reproducible form of indeterminate genre.

    8 For French doctrine and Case Law, see Phillippe Le Tourneau, La responsabilité civile, Dalloz 1982, page 641 and Jean-Jacques Burst, Concurrence déloyale et parasitisme, Dalloz 1993. In American Law, see the recent decision in Tax Analist v. United States Dept. Of Justice (Nº 94-0043, 16.1.96, US District Court for the District of Columbia).

    9 The issue is on the “Digital Agenda” and a Proposed Treaty is still in discussion.

    10 In USA, the attempt to protect any content under a conventional license may entail responsibilities: “While it is well established that rights to intellectual property may be restricted by license, the same is not true of unprotectable data. Indeed, attempts to expand the monopoly power granted a copyright owner to unprotectable material can subject a licensor to a liability for copyright misuse” Tearing Shrinkwrap in Cyberspace: Enforceable Licenses, Unprotectable Databases and ProCD, Inc. v. Zeidenberg, by Ian C. Ballon, Cyberspace Lawyer, Vol. 1, Nº 5, page. 2.

    11 See for example: “Just the image of an endless round of letters each asking for the permission to reproduce a particular work, has kept many projects on the drawing board. .. Without a common framework of rights, permissions and restrictions, the development of imaging systems is hampered” Imaging Initiative: A Status Report, by J. Trant, The Getty AHIP 1997. “Le principe de la SCAM (Société Civile des Auteurs Multimédia) repose sur le fait que les démarches d’autorization ne font qu’entraver la création. A partir du moment où une œvre existe et qu’elle est inscrite au répertoire de la SCAM, son auteur en autorise implicitement sa diffusion d’autant que les droits afférents seront perçus et lui seront répartis”Les modalités de rémuneration des auteurs par les organismes de gestion collective de droits, por Claude Rollin, Séminaire Droits d’Auteur et Multimedia, Paris, November 1993.

    12 For instance, of the Copymart type, set out by Zentaro Kitagawa in Computers, Digital Technology and Copyright, published in WIPO Worldwide Symposium on the Future of Copyright and Neighboring Rights, WIPO 1984, page 115.

    13 See, for example, Multimedia Licensing Offers Unique Problems, by Susan M. Jennen, in Les Nouvelles, December 1993, page 185.

    14This is the policy characterizing the advertising of an important supplier of digital image: “All Corel Professional Photos are royalty free. Corel has insured that all image are photographer as well as model released. Once you purchase a Corel Professional Photos title you are free to use the images as often as you wish; there are not additional fees”.

    15 1) Regardless of the author’s proprietary rights, and even after the assignment of these rights, the author shall keep the right to claim the paternity of the work and to object to and oppose any distortion, mutilation or any other alteration thereof or any assault against it causing damage to his honor or reputation.

    16 Berne Convention, art. 10 (1)

    17 For example, article 34 of the Act N 11.723 (Ley de Propiedad Intelectual) of my country, Argentina, that require photographers to print into the photography the date and place of publication and the author’s name as prerequisite of the work penal protection.

    18 For example, provisions of the U.S. Copyright Act Chapter 4.

    19 See the examples of the characteristics of two watermarks in the advertising of the Digimarc and FBI systems, “Digimarc technology allows a digital watermark to be embedded directly into photographs, video, computer images, audio, and other forms of creative property. This watermark is imperceptible to the eye, and imperceptible to the ear, but a computer analysis can read the watermark and discover the message it carries. The watermark is repeated throughout the property. It is robust, and typically survives multiple generations of copying, modification, printing, scanning, and compression. A watermark may carry a copyright notice, a unique serial number, a transaction id, as well as other application specific data”. “FBI is a new "smart" technology that protects your work by embedding an invisible and highly secure identifier or "fingerprint" within a digital image. FBI fingerprinting is designed to withstand format conversions, compression, resizing, flipping and file transfers between computer systems. FBI fingerprints can even be detected in printed output ..”.

    20 “Watermarks” do not limit their usefulness to files with screen and printer output. ARIS Technologies, for example, offer their MUSICODE system to “tattoo” sound files.

    21 For example, COPYCAT, a European Esprit program project which can be accessed in the respective site.

    22 Article 18 of the WIPO Treaty on Performances and Phonograms has a similar wording.

    23 This refers to the fair use and public domain aspects that we dealt with before and tends to prevent the legal protection of technical protections from ending up granting a legal remedy to annul the public policy exceptions with which the Copyright regimes balance in favor of the community the exclusive rights granted to the intellectual property owners.

    24 “Computer-based information can also be utilized differently than its paper counterpart. For example, computers can “read” digital information and transform the information or take programmable actions based on the information”. Digital Signature Guidelines - Information Security Committee - Science and Technology Section - American Bar Association, page 6.

    25Their function is “defining the terms under which the copyright owner makes the work available”. Permissions Headers and Contract Law, by Henry H. Perritt, Jr. in Proceedings Technological Strategies for Protecting Intellectual Property in the Networked Multimedia Environment, IMA Interactive Multimedia Association, Annapolis 1994, page 27.

    26 HTML language instructions may serve these purposes, they are thus utilized by PICS (Platform for Internet Content) an infrastructure for associating labels (metadata) with Internet content using "Print", "Save", and "Quote" commands associated with variables where 0 = disallowed, 1 = conditionally allowed, and 2 = unconditionally allowed.

    27Symmetrical to article 19 of the OMPI Treaty on Performances and Phonograms.

    28 “The standard subscriber agreement appears to pass this unconscionability test. First, a subscriber is free to access the electronic bulletin board without the presence of high-pressure tactics. In addition, a subscriber is free to scrutinize all the terms and conditions of the contract. Furthermore, a subscriber enjoys the freedom not to select a particular on-line service and to find a preferred one in the marketplace”. Drafting Tips for On-Line Services Agreements, non-signed contribution, Multimedia Strategist, Vol. 1 N 1, page 1.

    29 Hence, for example, the decision made in the United States case CompuServe Incorporated v. Richard S. Patterson and Flashpoint Development, (89 F.3d 1257 (6th Cir. 1996)) in which “the court noted that Patterson had manifested his assent .. by typing "AGREE" at various points in the Shareware Registration Agreement” as reminded by Kent Stuckey in Internet and Online Law. Similar doctrine was applied by the court in the case Hotmail Corporation v. Van Money Pie Inc., et al., C98-20064 (N.D. Cal., April 20, 1998).

    30 “Where a copyright owner deals with the work, or authorizes others to deal with the work, in such a way that it invites others to make use of the work in a certain way, it can be said that the copyright owner has given an implied consent for license to such use, even if there is no specific license given to any individual user. .. If the copyright owner has permitted the work to be placed on the Web, it can be argued that the owner has implicity consented to whatever copying or reproduction of the work is necessary to permit the Web page to be accessed and transmitted to the user. .. Similarly, where a copyright owner places a work on the Internet in such a way that it is freely available, it likely can be implied that any reproduction of the work necessary to permit the work to be perceived by a recipient (such as the loading of the work into the RAM of the recipient computer) has been implicitly consented to”. The Cyberspace is not a “No Law Land”, by Michel Racicot, Mark S. Hayes, Alec R. Szibbo and Pierre Trudel, February 1997, page 286. To the same effect: “If Web site owners want users to browse -that is, load pages into RAM, and thereby make a copy- they must grant an implied license to make that copy” Caching on the Internet, by Eric Schlachter, in Cyberspace Lawyer, Vol. 1, N 7, page 4; and Ellen Poler, Frames and License Agreements, ILPN, 20.10.97.



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