HomeArticles 3 Easy Steps to a Digital Content Licence
3 Easy Steps to a Digital Content Licence
New technologies and the internet present both great opportunities and great risks for digital content businesses.
The opportunities include, on one hand, possibilities to distribute and make digital content available to a global marketplace and therefore have access to an increased customer basis with additional revenue streams. On the other, reduced manufacturing and distribution costs help to increase the profit margins.
Risks arise from the ease of unauthorised copying and distribution without the need to ask permission and pay relevant fees to digital content owners.
However, there are things that digital rights owners can do when entering into a digital licence to ensure that rights granted are not wider that those required.
identify the rights involved: these would include Copyright, Database Rights, Trade Marks and Image Rights;
add such flexibility in the licence to make it future proof; and
use technical means available to reinforce and protect the rights above.
1st Step
Under the Copyrights, Designs and Patents Act 1988 (CDPA) and Related Rights Regulations 2003, a copyright owner may prevent others from: Copying of a (substantial) part of the copyrighted work: even if the copying copy is not visible to the eye; Issuing copies to the public: which culd for example be done automatically through a search engine caching activity; Renting or lending copies to the public; Performing, showing or playing in public; Communicating to the public: covering both the broadcast right and the “making available to the public” right, which is key for licensing digital rights and is applicable to any “on demand” service as long as the work is “accessible from a place and at a time individually chosen by [the user]”. Making an adaptation of the work or doing any of the above acts in relation to an adaptation of the work: such as for mobile phone screens, in which case, it may be appropriate for licensors to obtain a licence back of the adapted content. It may also be appropriate for licensors to have the right to pre-approve the adapted content, since cropping or re-configuring picture size may affect the quality of the picture.
A website likely to be protected by database rights since it is a collection of independent works, data or other materials, arranged in a systematic or methodical way and which are individually accessible by electronic or other means and very often it will pass the “sufficient investment” test, required for database protection. A digital licence grant should therefore permit a licensee to “extract or re-utilise” any database contents.
It is important to address the permission and restriction on the use of the relevant trade mark rights and any so-called image rights, in the event the content includes photos.
2nd Step
A licensor of rights under any bespoke digital licence, should include provisions in the digital content licence to guard against unwillingly granting rights for use on future-developed technologies. It is therefore important that the licence contains provisions that state that unless expressly granted, all rights are reserved and belong to the licensor; and also limit the licence to technology invented at the time of the grant.
3rd Step
Licensors very often will look at implementing technical measures to protect against unauthorised copying and distributing of the content. Very often DRM is the technology that licensors they will look to since it is an offence to circumvent the DRM applied to any digital content and/or to manufacture, market and sell devices which carry out such circumvention
DRM is made up of Technological Prevention Measures (TPM), which ensure that the rights are enforced and Rights Management Information (RMI), which represents the licence terms. However, the use of DRM is not without some user related problems:
It has been suggested and I agree with this, that DRM interferes with standard property rights and imposes restrictions on the use of content, narrower than those for previous media, such as video tapes or CDs. For example, anyone can purchase a book, CD, DVD and then give or sell it to a third party. However, DRM software will most likely prevent a buyer from legally purchasing digital content and then passing or selling it to someone else.
Copyright will generally expire in a work at the death of the creator plus 70 years. However, DRM restrictions (if effective) are permanent, in essence granting a permanent copyright.
DRM does not recognise “fair dealing” exemptions.
DRM could become outdated, leaving the purchaser of the content without the ability to access the content it has legally purchased.
There is no standard DRM technology.
Other legal issues include competition concerns since the use of DRM may be used to divide markets.
It may therefore, be necesssary to look at other technologies such as Digital fingerprint, which embeds information, such as e-mail address and location of purchase, into each user’s copy of digital content and which can be extracted to help identify culprits, when an infringing copy is found; and Digital watermarking, which adds specific information to the original data content file again making it easy to back track information about the content.
Anassutzi & Co offers business strategy advice putting legal advice into context and offers high quality expertise for fixed feeswww.anassutzi.com
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