The Origin and Purpose of Legal Protection for the Integrity of Copyright Metadata

Abstract

Rights management information is copyright metadata legally protected by copyright law. The origin of such protection was a United States policy for governance of the information superhighway (the internet) and digital networks. The main discussion documents leading up to the WIPO internet treaties reveal that the policy behind protecting the integrity of copyright metadata was aimed at higher objectives of public interest, such as consumer protection, market efficiencies, and authenticity of creative content. Copyright management information was envisaged as one element of digital infrastructures for creating global electronic commerce, but digital copyright was also foreseen as important for the dissemination of cultural heritage. Today these infrastructures have become a reality through legislation on orphan and out-of-commerce works in Europe, and for the licensing and distribution of royalties for musical works and sound recordings in the US. Countries that implement the WIPO treaties or transplant the US law without considering the whole policy behind the protection of copyright metadata are falling into a copyright management gap because, globally, the discovery, visibility, compensation, and monetisation of local content from places without adequate digital rights metadata infrastructures will be more challenging. This article shows that US digital dominance is codifying and writing the DNA of cultural content.

1 Introduction

Metadata is the DNA of cultural content. This is the conclusion of the Lescure Report, a document commissioned by the French Minister of Culture on the creation of cultural policies in the digital era.¹ The growing importance of metadata is attracting the attention of policymakers in different areas. It is becoming a focus of legal analysis and regulation in various contexts, such as national security,² privacy,³ and intellectual property.⁴ In addition, metadata has an expanding forensic role,⁵ is an informational asset regulated and governed by contracts,⁶ and is a cornerstone for developing smart contracts and rights management through blockchain.⁷ Despite its growing importance, the legal literature has paid little attention to copyright metadata,⁸ and case-law has been scarce.⁹

There are several definitions of metadata. The most common and generic definition is “data about data”.¹⁰ The Oxford Dictionary defines metadata as “a set of data that describes and gives information about other data”.¹¹ Information science scholarship provides the main definitions of metadata that inform different uses of the term metadata in various fields. The National Information Standard Organization (NISO) defines metadata as “structured information that describes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an information resource”.¹² The main characteristic of this definition is that metadata is information about information resources. Data, information, and knowledge are three different concepts.¹³ Digital information resources are comprised of intellectual creations such as videos, music and websites. The NISO definition therefore applies within the context of copyrighted works.

Currently, the only legal protection for the integrity of metadata is through copyright legislation – specifically, the protection afforded to rights management information (RMI). RMI is metadata that provides copyright and licensing information. It is a new legal category, and its legal protection guarantees the integrity of copyright metadata, granting copyright owners an additional right.

In this article, I analyse the origin and purpose of the protection that intellectual property law confers on copyright metadata. This paper will explore the legislative history of the protection of RMI at international level and outline the objectives of such protection as well as the role of RMI in the digital management of cultural content. I will discuss the importance of developing technological infrastructures for the use of legal metadata. The article will first explore the definition of rights management information. This will be followed by a discussion of the legislative starting point in public international law, an examination of its objectives, and the legal rationale for this new set of rights. I will then examine rights management infrastructures as a structural part of the policy behind protecting copyright metadata for the purposes of copyright management and for dissemination of cultural heritage, indicating the role of these in solving the orphan works problem. In the final part, I will discuss the debate surrounding moral rights and copyright metadata, especially with regard to what is referred to as the “right of authenticity”. I will conclude with insights and reflections for future debate.

2 Definition of Rights Management Information

Rights management information (RMI) is digital metadata attached to copyright works or appearing in connection with those works that provides intellectual property information such as the title of the work, the author, the copyright owner, or the conditions for using the work. Rights management information is legal metadata related to the moral rights, patrimonial rights and licensing conditions of the work.

Public international law defines RMI within the context of copyright and neighbouring rights. The WIPO Copyright Treaty (WCT) defines RMI as:¹⁴

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.

The WIPO Performances and Phonograms Treaty (WPPT) defines RMI as:¹⁵

information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public.

The WIPO Beijing Treaty on Audiovisual Performances defines RMI as:¹⁶

information which identifies the performer, the performance of the performer, or the owner of any right in the performance, or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation.

The definitions share a similar structure: (i) they refer to metadata providing related intellectual property information; (ii) they include identifiers (numbers or codes); and (iii) the scope of the definition is technologically neutral: it applies to both digital and traditional media.¹⁷

The protection of RMI has been studied and associated mainly with technological protection measures (TPMs).¹⁸ For instance, Stephen Fraser includes RMI as one of the achievements of copyright maximalists because of the link between RMI and both TPMs and digital rights management (DRM) systems.¹⁹ RMI could be used in combination with TPMs that impose restrictions on the use of and access to works. However, it is important to emphasise that DRM, RMI and TPMs are three different things. RMI and TPMs can be used separately; all DRM includes RMI but not necessarily TPMs; most DRM systems use both DRM and RMI and, as Ficsor correctly states, “when DRM is criticised as having the potential of blocking access to works and objects of related rights, frequently only, or mainly, TPMs are meant”.²⁰ The purpose of RMI is different to that of TPMs. RMI aims to facilitate the distribution and management of copyrighted works. TPMs aim to control access to, and dissemination and use of, digital works. In addition, RMI and TPMs differ in terms of legislative history. The first legislation on TPMs dates back to national and regional legislation in the late 1980s and early 1990s.²¹ It was national legislation that first established legal protection for TPMs. RMI was established first in the WIPO treaties, which national legislation then implemented.

3 Origin of Legal Protection for RMI

Legal protection for RMI anticipated the importance of metadata for rights management in global digital networks. Traditionally, copyright law is a legal and political reaction to the implementation of technological developments but, as Jörg Reinbothe and Silke von Lewinski noted, RMI “may be considered as a rare example of a legal regulation that has largely preceded the developments on a factual level”.²² Legal protection of the integrity of copyright metadata was an initiative of the United States (US) government before massive use of the internet, digital networks, and electronic platforms. Rights management information was first established in international treaties and then spread through national and regional legislation. Legal protection for RMI started with the WCT and the WPPT. Those treaties are commonly known as the WIPO internet treaties of 1996.²³ The Information Infrastructure Task Force from the US and the European Commission’s Green Paper were the documents that formed the basis for the creation of the internet treaties.

3.1 Information Infrastructure Task Force – USA

In 1993, the US administration of President Bill Clinton created the Information Infrastructure Task Force (IITF). The IITF helped to design US policies and regulations to develop the “information superhighway”,²⁴ nowadays known as the internet. The US government called for a specific action in order to: “… explore ways to identify and reimburse copyright owners. The IITF will explore the need for standards for the identification of copyright ownership of information products in electronic systems (e.g. electronic headers, labels, or signature techniques). The Task Force will also evaluate the need to develop an efficient system for the identification, licensing, and use of work, and for the payment of royalties for copyrighted products delivered or made available over electronic information systems”.²⁵ This objective delineated the rationale behind protecting copyright metadata. In the digital environment, products and services based on copyright are part of the global marketplace. From this perspective, the IITF addressed RMI in terms of its importance for facilitating licensing and its relationship with Copyright Management Systems (CMSs) and Digital Rights Management (DRM).

The US government identified nine areas where specific actions were required.²⁶ One principle and goal for government action was with regard to intellectual property. The two aims with regard to intellectual property were to assess copyright legislation for the digital environment and to “explore ways to identify and reimburse copyright owners”.²⁷ A working group on intellectual property rights was chaired by Bruce Lehman.²⁸ The function of the group was to propose amendments to intellectual property legislation.

In July 1994, the working group on intellectual property rights proposed for the first time that copyright metadata should be legally protected.²⁹ The draft defined copyright management information (CMI) as “information associated with a copyrighted work, including, but not limited to, the name and other identifying information of the copyright owner, the terms and conditions for uses of the work, and identification codes such as an ISBN number”. In 1995, the IITF published its White Paper, which included the final report by the working group on intellectual property rights. The White Paper proposed amending the Copyright Act to include protection of CMI.³⁰ The wording of the White Paper differed from that of the draft legislative proposal, defining copyright management information as “the name and other identifying information of the author of a work, the name and other identifying information of the copyright owner, terms and conditions for uses of the work, and such other information as the Register of Copyrights may prescribe by regulation”.³¹ While both definitions shared the same rationale and similar characteristics, the main difference was the open definition of CMI, designed to include any other information that the Register of Copyrights might prescribe by regulation.

The US government justified protecting CMI by stating that, as metadata, it would reduce the transactional costs of licensing³² and help to create more efficient management systems for copyright in the digital environment. The White Paper stated that “[c]opyright management information will serve as a kind of license plate for a work on the information superhighway”.³³ The IITF advised that owners use RMI for easy retrieval and localisation of legitimate copyright works.³⁴

The creation of new markets for cultural products was one goal of the National Information Infrastructure. The aim of legally protecting RMI was to safeguard the interests of both copyright holders and the public. The IITF argued that protecting RMI was important for consumers of digital works, and prohibiting the circulation and dissemination of false RMI protected consumer interests. Rights management information makes it easier to find digital works and use them legally. The IITF stressed that RMI creates advantages for retrieving digital works and licensing. Protection for copyright holders consists of prohibiting the removal and alteration of RMI. In order to protect the interests of copyright holders and consumers, RMI should be accurate and reliable. The IITF highlighted that the accuracy and integrity of RMI contained in rights information infrastructures, such as copyright registries, was just as important as RMI attached to works.

In 1995, for the first time, a Bill proposing to protect RMI was presented in the US Congress.³⁵ The Bill of the National Information Infrastructure Copyright Protection Act (NIICPA) followed the recommendations of the White Paper. However, it was not passed into law. The Bill was highly controversial;³⁶ certain groups strongly opposed protection for TPMs.³⁷ Copyright management information was also criticised because of concerns that, as an element of DRM, it could potentially interfere with the privacy of users of digital works.³⁸ However, CMI alone does not allow users’ behaviour to be tracked. Faced with the failure of this legislative initiative, the strategy of the US government switched from national to multilateral, introducing this topic into WIPO discussions, as we will see later.

3.2 Green Paper – EU

In December 1993, the European Council called for a study on the adoption of policies for the information society. As a result, in 1994, the Bangemann Report recognised intellectual property as a high priority for economic development in the digital environment. The report also stressed that “flexibility and efficiency in obtaining authorization for the exploitation of works will be a prerequisite for a dynamic European multimedia industry”.³⁹ The report identified automated licensing and CMSs as key for market efficiencies in the digital exploitation of works, a topic that would be discussed by the European Commission (“the Commission”) in the following years.

In 1995, the Commission prepared a Green Paper on Copyright and Related Rights in the Information Society.⁴⁰ It was a consultation paper that discussed legal reforms to copyright in relation to new digital technologies and the increasing use of the information superhighway. The Green Paper was preceded by national reports, in particular the “Sirinelli Report” in 1994 – a study headed by Pierre Sirinelli under the auspices of the French Minister of Culture.⁴¹

The Green Paper was based on the conviction that copyright reform and strong protection of copyright holders would be necessary for the development of the European Union’s information society.⁴² The Commission’s approach was oriented toward recognising high standards of protection for copyright. It also explicitly concerned itself with maintaining a balance with user interests in the digital realm.⁴³ The Green Paper focused on the economic facets of the information society and intellectual property, But, in contrast to the US White Paper, it also mentioned other facets. It addressed the protection of copyright in three dimensions: cultural, economic and social. The cultural dimension emphasised the importance of the EU’s common cultural heritage, and sought to achieve a balance between the protection of cultural heritage and intellectual property rules.⁴⁴ The emphasis on protection of heritage was firmly rooted in the idea that, within the information society, use of heritage could lead to the creation of creative content, new services, jobs and economic benefit for the wider EU community. Cultural heritage was seen as an industry.

The Green Paper referred to copyright metadata only tangentially. The participants in the consultation were against compulsory licensing and posed questions about individual rights management. At the same time, they had an emphatic interest in identifying and managing works in the digital environment.⁴⁵ Copyright metadata was related to two issues: first, copyright management and technical mechanisms for protection; and second, identification of digital content. Both issues were discussed within the context of copyright enforcement.

The Green Paper mentioned the difficulties of rights management when creating digital works that combined multiple copyrighted works, for instance, multimedia works that required the use of existing works. The Green Paper suggested that technologies had to enable rights holders to identify and monitor the different uses made of their works.⁴⁶ However, it did not propose any legal protection for copyright metadata. Copyright metadata was envisaged merely as one element of the rights management technologies that could allow holders to identify, track and monitor the use of digital works.⁴⁷ These uses were thought to be a means for more effective copyright management, which nowadays, three decades later, is becoming a reality.

The Green Paper discussed technical protection systems and the identification of works in the digital environment. The Commission addressed digital identifiers (which are metadata) and digital RMSs as a new opportunity for rights holders, for example, for automating rights management.⁴⁸ In addition, the Commission perceived the creation of international standards for identifying works in the digital environment as a genuine need. It highlighted initiatives within the music industry and the role of the ISO in the creation of these standards.⁴⁹ However, these discussions were not accompanied by any proposed regulation.

3.3 The Japanese Study of Institutional Issues Regarding Multimedia

In 1994, the Subcommittee on Multimedia of the Copyright Council of Japan created a working group to carry out an exhaustive analysis of the copyright issues surrounding multimedia from a technical point of view. The report published in 1995 by the Subcommittee addressed RMI based on the IITF documents.⁵⁰ The Japanese study focused on the importance of copyright metadata for rights clearance. It proposed two actions: the first was to make it illegal to incorporate false copyright metadata and to alter or remove true copyright management information (adopting the US approach and CMI terminology). The second proposal was to “establish a registration system regarding copyright management information to be incorporated to copies of works that are distributed, broadcast, or transmitted, providing presumptive effect to such registered contents”.⁵¹ The study highlighted that discussion of such a system should take into account the principle of non-formality.⁵² It was not clear whether the proposal was for a global or a Japanese register, but, considering the context and background of the study in relation to the international discussion of digital networks and the preliminary debates of the WIPO internet treaties, the Japanese proposal should be thought of as an international register for protected copyright metadata. However, there was no discussion of such a register in the ensuing debates.

3.4 The WIPO Internet Treaties

The US White Paper and the Commission’s Green Paper published in 1995 were the main documents taken into account when preparing the WIPO treaties of 1996. The immediate origins of the WIPO internet treaties lie in the formation of the World Trade Organization and the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994.⁵³ WIPO started to organise the internet treaties once TRIPS had been adopted. The emergence of the internet and the widespread use of digital technologies had started to take on global dimensions, which was a topic not discussed during the TRIPS negotiations.⁵⁴

Prior to the WIPO internet treaties, the only explicit reference to the legal protection of RMI was contained in the US White Paper and in the Japanese report.⁵⁵ The articles on the legal protection of RMI in the WIPO treaties were proposed by the US government.⁵⁶ Subsequent proposals and comments from Canada, Latin America, the European Union, Japan, and China provided no new matter for discussion. The South Korean proposal brought a new technical element to the debate, which unfortunately was not adopted and discussed. The Korean proposal read as follows:

Contracting Parties shall make it unlawful for any person knowingly to perform for the purpose of infringing any of the rights under the Berne Convention and this Treaty, any of the following acts: (i) to remove or alter rights management information which appears in connection with the communication of a work to the public in a standardized manner recognized by the competent national authorities or relevant international body, without authority.⁵⁷

South Korea proposed that a national authority or international body standardise RMI. This approach would provide clarity for identifying RMI in order to delimit the metadata protected by the law. During the debate, South Korea suggested that WIPO was the most appropriate organisation for standardising rights management information.⁵⁸ The US proposal and the final text approved by WIPO defined RMI but did not provide any technical elements with which to identify it. In other words, the formula adopted by WIPO provides only an imprecise definition of RMI. It states that metadata providing copyright information should be protected, but does not define who should create the metadata or how to distinguish legally protected RMI from other copyright metadata. For instance, librarians produce copyright metadata during the management of their collections; according to the WIPO treaties, this metadata could be RMI. The South Korean approach was highly convenient from a technical and legal perspective because it provided clarity for defining which metadata was within the scope of the law. It was also aligned with the importance of standards for identifying digital works that was highlighted in the Commission’s Green Paper.

At the end of 1996, a plenary session of the WIPO diplomatic conference approved the texts submitted by the US delegation regarding RMI.⁵⁹ The WIPO treaties established that contracting parties should provide legal protection to ensure the integrity of RMI. The treaties aimed to make two different actions illegal; first, the unauthorised removal or alteration of electronic RMI, and second, the distribution and public communication of works where electronic RMI had been removed or altered without authority.⁶⁰

3.5 National Implementation

Legal protection for RMI began to be implemented in national legislation following the WIPO internet treaties. As already mentioned, there were, before those treaties, no national laws that provided legal protection for RMI.⁶¹

The US was the first country to adopt protection for RMI, under the 1998 Digital Millennium Copyright Act. Within US legislation, RMI is referred to as “copyright management information” (CMI). It is defined as “information conveyed in connection with copies or phonorecords of a work or performances or displays of a work”⁶² and includes information identifying the author, the work, the copyright owner, performer, writer, director of audiovisual works, information concerning copyright notices and terms and conditions for use of the work, identifying numbers or symbols referring to such information or links to such information, and other information prescribed by the Register of Copyrights.⁶³ This definition implemented the obligations from both WIPO internet treaties, and goes beyond them, including information to identify directors of audiovisual works.

Following the US legislation, several countries adopted legal protection for RMI. Legal diffusion regarding the protection of RMI has been the result of countries implementing the internet treaties and/or updating national legislation to include digital copyright. For example, New Zealand (NZ) did not sign the internet treaties, but in 2008 and 2011 did update its copyright legislation to meet digital challenges, including providing legal protection for CMI (adopting the same wording as the US).⁶⁴ In addition, free trade agreements (FTAs) have been used by the US to create legal obligations and exert political pressure on other countries to adopt protection for RMI. Colombia is one example of a country that includes protection for RMI in its copyright legislation because of US pressure. In 2018, Colombia implemented some of its intellectual property obligations under the FTA with the US, including in the provisions of the Colombian Copyright Act related to RMI, providing a definition of RMI and civil remedies for RMI infringement.⁶⁵ These two implementations were also characterised by a lack of democratic and informed discussion. In Colombia, there was no discussion on the provisions when the legislation was passed, while, in NZ, there were few submissions regarding CMI during the parliamentary debate, and those were almost a copy-and-paste of arguments from the US discussions, mainly regarding privacy concerns.⁶⁶

As we have seen, the development of digital information networks provided the motive for this new layer of rights. Copyright industries, academic communities, and information science professionals have been working concomitantly on standardising rights metadata and creating solutions for intellectual property management, which I will analyse in the next section.

4 Rights Information Infrastructures

In addition to RMI, the creation of rights information infrastructures is part of the new digital copyright landscape. Rights databases are not new in the copyright field. Rights registers and copyright catalogues have existed since the 19th century. For example, in the 1820s, William and Seth Elliot from the US Patent Office published the first list of US copyrighted books.⁶⁷ Collective management organisations have built copyright databases for the collection and distribution of royalties at local, regional, and international level, and dozens of countries have national copyright registration systems.⁶⁸ The digital context is reshaping the need to share copyright metadata across organisations, applications and platforms. The concept of rights information infrastructure (RII) has emerged in the 21st century, replacing the notion of simple rights databases with a more comprehensive and updated mechanism for dealing with copyright metadata. RII is a “standard-based system, which is conceived to be used in any context, in order to manage rights information. The main value is to provide interoperability among existing resources and to foster the collection of additional data or enrichment of existing data within a network”.⁶⁹ The scope of RIIs is framed by an information management approach. Interoperability and the sharing of resources through institutions are the main characteristics of RIIs. These are the key conceptual differences between traditional rights databases and RIIs.

In the digital age, RIIs are becoming an essential part of public policies and legislation for copyright management. As Molly Shaffer Van Houweling has pointed out, technological solutions for the challenges facing copyright must be a fundamental part of intellectual property reform.⁷⁰ Rights information infrastructures, cataloguing standards, and rights dictionaries⁷¹ aim to aggregate and standardise rights information from different sources, such as contracts, acquisition agreements, databases, users, academics, collective management organisations and other interested parties. Rights metadata dictionaries are a recent development. They have emerged from the need for licensing and rights clearance on a large scale. Rights expression languages (RELs), while suitable for licences, are unsuitable for resolving orphan works problems.⁷² RELs lack the structure for dealing with most of the physical material held by libraries and archives. However, they facilitate the distribution and management of digital works, and could be implemented in different environments and with different goals. For instance, Creative Commons is a popular REL, which works in open access initiatives.⁷³

Copyright industries and library and information science communities have been working to standardise copyright metadata and build solutions for copyright management. Thus, for example, in 2018, the US Music Modernization Act ordered the creation of a musical works database for the proper identification of copyright owners and distribution of royalties when music is exploited through streaming.⁷⁴ In addition, the Register of Copyrights is responsible for regulating usability and interoperability and for restricting usage of the musical works database.⁷⁵ In December 2020, the Register of Copyrights issued an interim rule to regulate the musical works database, laying down details of the fields and copyright metadata to be included, and regulating access to and ownership of the metadata.⁷⁶ This is exactly the kind of metadata and infrastructure that was envisaged by the IITF in 1994 for the licensing and distribution of royalties.

Legal protection of RMI serves to promote investment in and the creation of RIIs. Italian legal philosopher Norberto Bobbio analyses the promotional function of the law.⁷⁷ One characteristic of contemporary legal systems is the increasingly frequent use of regulations to promote and stimulate certain behaviours.⁷⁸ Promotional regulations introduce positive sanctions or facilitate certain conduct to achieve higher objectives.⁷⁹ Granting RMI legal protection before it was widely used could be explained as a means of promoting creative and technological industries with a view to creating copyright metadata and RIIs that would result in market efficiencies.

Private and public organisations are creating RIIs with the objective of improving copyright management through digital infrastructures. National governments are undertaking initiatives to promote RIIs as part of their digital economy plans. For instance, the UK Copyright Hub, the United Kingdom’s digital copyright exchange platform, was created in 2013 with government funding and support. Its main goal is “to make copyright licensing easier”, and a fundamental part of its strategy is to change the approach to copyright management policy from a legal one to a technical one.⁸⁰ At an international level, on the initiative of EU Commissioner Neelie Kroes, the music industry did do some work on a global repertoire database. However, this project failed because of economic, political, and technological problems.⁸¹

A rights information infrastructure is a tool for improving copyright clearance and the operation of collective management organisations (CMOs).⁸² RIIs create efficiencies for finding copyright information and identifying copyright holders, and provide contact information therefor in an easy and centralised way. One challenge of these infrastructures is the need to maintain updated information. Rights can change over time, due to the expiry of licences, changes in licence terms, and the expiry of copyright. In addition, information about the copyright holders, such as contact information, transfer of ownership and different holders for different rights, can change.

Cultural heritage institutions (CHIs) are creating RIIs and copyright metadata. The digital environment is demanding that CHIs become more involved with copyright management. Copyright metadata strategies aim to create and exchange rights information within and across organisations. For instance, national libraries are negotiating agreements with copyright holders to have access to metadata sources.⁸³ The creation of copyright databases and registers is a new function related to the management of digital cultural heritage resources. As an example, the Rights Management System (RMS) of the National Library of Australia is a rights information infrastructure that organises, centralises and systematises rights information about its heritage collection.⁸⁴ Previously, rights information was dispersed throughout the National Library, and there were no standards or guidelines for its creation. The aim of the Australian RMS is to create a tool that will automatically identify copyright status, rights holders’ contact information, and any permissions granted to users.⁸⁵

4.1 Copyright Metadata: Identification and Information Retrieval

Copyright metadata serves the retrieval of information. The IITF has advised owners to use RMI to facilitate the retrieval and localisation of legitimate copyright works. New commercial services allow information to be searched and retrieved by copyright status. They integrate copyright metadata into their search fields. For example, the popular photo hosting service Flickr searches for and retrieves photos with “no known copyright restrictions” or those under specific licences such as Creative Commons (CC).⁸⁶ There is an emerging and growing trend to use copyright metadata as a field when searching and retrieving information, especially in digital heritage collections. A good example is the Domínio Público project created by the Ministry of Education of Brazil.⁸⁷ It provides access to material identified as being in the public domain through rights metadata that describes it as such. The Europeana web portal allows a refined search of digital heritage material by copyright status, for example, retrieving material according to its status as “public domain”,“in copyright”,, “restricted access”, or “unknown” copyright.⁸⁸

4.2 Orphan Works and RMI

Rights management information is fundamental to solving the problem of orphan works. These are works for which the copyright holder cannot be identified or located, which presents a legal obstacle to their use.⁸⁹ The main reason for this problem is that there is no copyright metadata, or the copyright metadata is out of date.

Orphan works became a widely discussed global copyright issue with such mass digitisation endeavours as Google Books and Europeana. In the mid-1990s, orphan works were not in fact a major concern, but it was thought that RMI would provide copyright information that would help to avoid the problem. Rights information infrastructures in CHIs are mainly a response to the problem of orphan works. Cultural heritage institutions are working together at international level to create an RII for solving orphan works issues.⁹⁰ In the European Union, the project “Accessible Registries of Rights Information and Orphan Works towards Europeana (ARROW)”⁹¹ pioneered the collaborative sharing of copyright metadata through CHIs. ARROW was a publishing rights information management infrastructure focused on books. It aimed to solve “the 20th century black hole” in EU digital collections. Its creation was the combined effort of national libraries, authors’ and publishers’ associations, reproduction rights organisations, cultural institutions, cultural industries and technology developers. It has its origins in the copyright subgroup of the High Level Expert Group on Digital Libraries created in March 2006.⁹² ARROW’s development began in 2007 when it was chosen within the eContentplus Programme to support the i2010 Digital Library Project. ARROW was an essential tool for the EU’s ICT policy agenda.⁹³ A similar orphan works project funded by the EU was FORWARD (2013–2017), which was established to create an EU-wide standardised system for assessing and registering the rights status of audio-visual works.These RIIs played the role of management tools in projects to digitise the collections of CHIs.

In the EU, some RIIs or databases related to orphan works and out-of-commerce works are created by legislative mandate. For example, the European Orphan Works Database had its legal basis in the Orphan Work Directive,⁹⁴ while the 2019 Directive on copyright and related rights in the Digital Single Market entrusted the European Union Intellectual Property Office with establishing and managing a portal that would contain the licensing information of out-of-commerce works, including information about territories covered and uses under the copyright exception provided in the Directive.⁹⁵ The latter portal now includes a database with such information. This clearly shows that legal protection for the integrity of RMI is not enough in itself to create digital environments that facilitate licensing and the identification of works and solve the problem of orphan works. The digital environment requires CHIs to get involved in intellectual property management from both the technological and legal points of view. One example of this can be found in the cataloguing standards used by libraries.

MARC is the prevalent standard for library cataloguing around the world. Initially, it did not have adequate structures for recording copyright information. This created a problem for libraries that wished to implement strategies for managing records of rights in their catalogues and metadata systems. MARC did not have a specific field for recording information about copyright history, copyright status or copyright interpretation. And the fields related to copyright, such as the copyright or legal deposit number (field 017), the note on restrictions on access (field 506), or the terms covering use and reproduction (field 540), did not provide enough legal information about the resources. In 2008, the Library of Congress added field 542, entitled “Information relating to copyright status”, to MARC.⁹⁶ That field aimed to supply metadata providing copyright information about the resource. The rationale for creating this new field in MARC is related to efficiencies in decision-making. In other words, the reasons for creating copyright metadata are economic (efficiencies in finding information), managerial (for making decisions on accessibility, digitisation), and legal (for assessing legal risks).

5 The Quasi-Moral Right of Authenticity and Rights Management Information

Electronic networks pose a risk to ensuring the integrity and authenticity of digital information. The White Paper discussed this topic alongside the ease of distributing pirated copies on the internet. Technology provides mechanisms to control the distribution of works and ensure the integrity of digital information. The White Paper stressed the importance of authenticity in relation to digital signatures and technological protection measures rather than copyright metadata. The chapter on technology discussed systems to grant access to, and ensure the control, use, integrity, interoperability, standardisation and authenticity of digital information and e-commerce transactions. Authenticity was associated with technical issues around attribution, source, and integrity of information, but not in relation to RMI. The mixture of all these technological issues mentioned in the White Paper led to unresolved discussions of what is referred to as the “right of authenticity”.

Discussions on the right of authenticity started in 1996 during the ALAI (Association Littéraire et Artistique Internationale) study days that preceded the WIPO diplomatic conference. The US White Paper and the Commission’s Green Paper informed the topics addressed by the ALAI.⁹⁷ Adolf Dietz proposed a “new authenticity right” based on the relationship of RMI with the moral rights of integrity and attribution.⁹⁸ However, the US report by Maria Pallante stated that “[i]n the United States, authenticity has been raised as an economic issue, driven by copyright management needs and the security needs of commercial interests”.⁹⁹ According to her report, authenticity was an economic topic. On this analysis, authenticity treats intellectual works as part of the cultural market. This approach was based on the idea of regulating cultural goods and protecting technological and creative industries from economic and market perspectives.

In the ALAI, discussion of the right of authenticity became linked with authors’ moral rights. Moral rights allow authors to prohibit uses of their works that may undermine their honour or reputation, and to defend their right to claim authorship.¹⁰⁰ In the ALAI conference of 1996, one of the questionnaires was entitled “Authenticity of Authorship and Work”. Authenticity concerns arose in the context of digital copyright because of the ease with which copyrighted works could be modified. This in turn could affect their integrity. Adolf Dietz called the authenticity right a quasi-moral right¹⁰¹ because of the emphasis placed by RMI on economic interests (some moral rights can have an incidental monetary interest). In addition, it is a right proposed for copyright holders such as publishers. Authenticity was discussed as potentially a quasi-moral right for producers, aimed at guaranteeing authenticity of the source of digital works.¹⁰² During the ALAI conference, other intellectual property rights such as trademarks were considered more appropriate than copyright for ensuring authenticity alongside commercial interests.¹⁰³

Protection for the integrity of copyright metadata is not related to providing moral rights. In the White Paper, authenticity was solely related to economic interests and a technical issue aimed at controlling digital exploitation of works, not the protection of moral rights.¹⁰⁴ The regulation of copyright metadata was a key component for protecting digital RMSs. Furthermore, while electronic copyright systems might play a positive role in the reaffirmation of rights, technology cannot replace moral rights.¹⁰⁵ Metadata content is controlled by the owner, not the author. Copyright scholars such as Oesch have highlighted that “authenticity is not a basic goal of copyright”.¹⁰⁶ However, the discussion on technological issues raised questions about the convenience of a right of authenticity for copyright holders related to integrity and attribution.¹⁰⁷

Two years after the WIPO treaties, Jane Ginsburg suggested that legal protection for RMI could promote the development of a right that she called "authenticus lex” and Baumgarten labelled “droit d’authenticité”.¹⁰⁸ Baumgarten defined the right of authenticity as “the interest of producers and publishers in the accuracy of the materials presented electronically”.¹⁰⁹ He proposed an authenticity right for copyright holders,¹¹⁰ as the right to protect the integrity of RMI is for copyright holders, not authors.¹¹¹ Ginsburg proposed that RMI could be the basis of a moral right of attribution and right of integrity in US legislation.¹¹² Ginsburg’s proposal combines the integrity of RMI with the integrity of the work. Ginsburg extended the integrity of metadata to the protection of the work, providing an argument for the possibility of moral rights protection in the US. She proposed that, in order to ensure the authenticity of the work, “copyright management information include a statement that the work made available to the public corresponds in content and form (the latter, where relevant) to the work as created”.¹¹³ This suggestion relates to the moral right of integrity. Baumgarten argued that the right of authenticity should extend to giving control to copyright holders over how contents are linked. Links affect the context in which works are displayed, which could harm the author’s honour and reputation.¹¹⁴ In practice, any control that copyright holders could have over the use of links has been related to the patrimonial side of copyright, especially public communication.¹¹⁵ Manuel Castell proposed that one of the characteristics of the network society is the hypertextual possibility of new media,¹¹⁶ which is tied to the possibility of creating links and modifying information for the creation of new works. The restrictions on links proposed by Baumgarten under the umbrella of a “right to authenticity” could hinder the development and use of digital networks.

The right of authenticity suggested by Dussolier, Ginsburg, Dietz and Baumgarten is mainly based on the potential of DRM to identify, monitor and authenticate works. It goes beyond protecting the integrity of RMI. The proposed right of authenticity is based on a technological perspective. However, TPMs that guarantee authenticity have a strictly economic interest,¹¹⁷ and protection for the integrity of RMI aims to protect the economic interest of copyright holders rather than the rights of authors.

The interest of consumers of cultural goods could be framed as a consumer right regarding the authenticity of digital works. As Russell Jacobs has pointed out, protection of copyright metadata could serve a consumer protection purpose, which would be best served if consumers were able to bring lawsuits for the violation of RMI that affects a public interest.¹¹⁸ An authenticity right could be aimed at impeding the usurpation of artistic authorship and protecting the identity of the author. This approach to authenticity aims to protect metadata about the source of creation and production of the work. An authenticity right concerns economic and cultural interests. It is related to the potential exploitation or consumption of copyrighted works and to ensuring access to original works that are unmutilated and known with certainty to be authentic.¹¹⁹

There have been no more discussions about an authenticity right related to RMI in recent years. In the Brussels ALAI Congress in 2014, entitled “Moral rights in the 21st century. The changing role of the moral rights in an era of information overload”, one of the questions posed to national groups was “[…] In your country, are there any indications in legislation, case-law and/or scholarly literature that the moral rights ‘shift’ in a digital environment: from an integrity right to a right to respect the authenticity of the work?”. However, none of the national reports discussed RMI. On the other hand, US scholars have continuously been trying to find, within CMI, a source of moral rights as a way to compensate for the US deficit of statutory moral rights.¹²⁰ In 2019, in its reports about moral rights in the US, the Register of Copyrights recommended adding a provision regarding CMI to protect the moral right of attribution. The proposal states that “no person shall, without the authority of the author or the law, knowingly remove or alter any copyright management information with the intent to conceal the individual author’s attribution information”.¹²¹ In contrast with the current CMI provisions, which focus on copyright holders, this recommendation could provide an additional layer of protection to authors, expanding the scope and purpose of the protection of CMI far beyond the original scope of the WIPO treaties. At the same time, the United States Copyright Office suggested that it could consider including information about producers, engineers, and other individuals involved in the making of sound recordings, who clearly are not authors under current copyright law and theory, as CMI (as recommended by the Recording Academy).¹²²

6 Conclusions

The main purpose of RMI is to facilitate the licensing, collection and distribution of royalties for the exploitation of works protected by copyright and the legal digital dissemination of creative content and cultural heritage. RMI constitutes a new layer of legal protection for copyright holders and aims to stimulate market efficiencies through the adequate identification of digital content. Copyright metadata allows for licensing mechanisms that provide new services for customers, fair and precise compensation to copyright holders, and competitive practices in the licensing market of copyrighted works.¹²³

Legal protection for the integrity of RMI is part of the governance of the internet that has been dominated by the US. Copyright metadata was identified by the US government as an important element in the management of intellectual property and the exploitation of works in the digital market. RMI was designed by the US as an element for regulating information for global digital networks. However, it is difficult to establish the scope of RMI and CMI because of their vague and broad legal definitions. As a consequence, a common-law approach is followed, where courts have a fundamental role in defining the scope of certain copyright provisions (e.g. fair use). The diffusion of legal protection to copyright metadata through the implementation of the WIPO treaties and through legal transplants outside the US and Europe is deepening the democratic deficit of copyright regulations, as there has been insufficient debate about the legislation. In addition, transplants and implementations are incomplete if rights management infrastructures are not promoted, invested in and developed. A copyright management gap is therefore emerging, as discovery, visibility, compensation, and monetisation of local content from places that lack adequate digital rights metadata infrastructures will be more difficult in global networks. US digital dominance is codifying and writing the DNA of cultural content.

The IITF, the Commission, and the delegates attending the WIPO Conference justified the legal protection of RMI on two different grounds: first, by emphasising the risks that intellectual property holders might run with the development of digital technologies, and second, by arguing that the information superhighway (the internet) would bring new market opportunities for the cultural industries. According to those arguments, the aim of legislation was to protect technologies by minimising those risks and to stimulate technologies and infrastructures for the dissemination of digital works. RMI could create mechanisms to reduce both piracy and licensing costs. In addition, the use of those technologies would provide new services for the digital distribution of works. The protection of RMI was to be thought of as a measure to promote the creation of copyright metadata infrastructures and DRM systems. Copyright metadata interoperability would allow online access to be maximised, and provide for royalty management, digital rights management, licensing, rights clearance, and information retrieval. It would also facilitate access to works in the public domain and make any digitisation process more cost-effective. National policies concerned with stimulating the country’s digital economy should include within the intellectual property element the promotion of information infrastructures for copyright management hand in hand with the effective protection of legal metadata.

The origin of the legal protection of RMI shows that RMI policy is linked to achieving higher objectives of public interest, such as market efficiencies, consumer protection, and access to cultural heritage. The differences between the US and the EU in terms of legal mandates for building RIIs shows the varying approaches to the origin of copyright metadata. While, in the EU, legislation for RIIs is connected with copyright provisions related to the cultural heritage sector (orphan works and out-of-commerce works), in the US, it is related to market efficiencies for copyright management, the distribution of royalties, compulsory licensing, and streaming. Furthermore, the US has no legislation regarding orphan works. In the cultural heritage sector, copyright metadata is becoming increasingly important mainly because of its role in managing digital heritage collections and solving the orphan works problem. Copyright metadata is one of the main tools for preventing the continuous increase in orphan works. Solutions for the orphan works problem require standard systems for creating, recording, and managing copyright information.

Copyright metadata has the potential to contribute to safeguarding the authenticity of digital works by providing reliable information about content source. Copyright authenticity is related to moral and economic rights, and combines technological elements and copyright interests related to licensing and the integrity of the works. By combining moral rights with copyright management information, the US debate could lead to a new layer of protection for authors (not necessarily copyright holders) that goes beyond the purpose of the original policy behind protecting copyright metadata.