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Functional Requirements for IP Management

David Bearman <dbear@archimuse.com>

Requirements

Intellectual property is managed through operations on intellectual property rights (IPR) statements, which either assert, or convey, rights.

  1. IPR statements must satisfy three high level requirements:
  2. 1) It must always be possible to identify/locate their subjects (the rights holder or agent making a claim or transferring a right).
  3. 2) It must always be possible to unambiguously identify their objects (the intellectual property to which the right applies).
  4. 3) It must always be possible to specify their predicates (the specific right claimed or conveyed).

In addition:

  1. 4) A system of digital IPR management should be able to apply, enforce and track the restriction defined by the IPR statement predicate.

    2. Practical considerations related to each high level requirement:

    1. A rights holder or agent may claim many different rights with respect to many different properties. There are no technical difficulties in defining the requirements for their unique identification or in maintaining a registry of IPR holders. (Note, however, that in the real world, rights holders do, from time to time, cease to be locatable).
    2. Any intellectual property may have numerous different rights claimed about it by various holders at any level of granularity. Rights apply at levels of granularity that may be unrelated to the "packaging" of the object and may only be declared in claims made subsequent to the creation of the object. Rights do not necessarily apply at lower levels simply because they apply at higher levels — for example a copyright to a compilation does not convey copyright to the individual items within the compilation; a license to perform a work need not convey the license to perform a portion of that work.
    3. The predicates of IPR statements apply within certain jurisdictions, at certain times, and may be additionally limited by purpose, function, number of occurrences, method of display/play, and any other conditions imaginable. The rights they convey may be contingent on payment, reporting, the co-appearance of specified statements and any other terms and conditions.
    4. A system of digital IPR management will be assessed on the basis of the degree to which it can correctly deliver and control the identified intellectual property with the limits and restrictions imposed by the specified rights. Because IPR statement predicated may impose any conditions whatsoever, no system will be able to automatically deliver and control digital intellectual property in conformance with any arbitrary rights statement. Agreement on the necessary and sufficient degree of expressivity of an IPR management language will depend on prior agreement on a scenario of automatic object transformations and rights controls; as a simpler example, prior agreement that the IPR management systems should be able to create an object of a given resolution, or restrict an object to being viewed in a specific political jurisdiction, will define requirements for the language.

    Context:

    The overall system of IPR is a socio-legal system ultimately grounded in national laws that are both different and changeable. All IPR statements are made with respect to a particular law at a particular time. While intellectual property rights may apply to an object after changes in the specified law, the nature of such changes is not constrained, so there can be no way to define all relevant variables in advance that will ensure IPR statements will be meaningful in the future. Nevertheless, IP laws are fairly similar and the variables required to express IPR statements across all IP domains and jurisdictions are finite and could be established.

    The overall system of IPR management is a technologically dependent system grounded in methods of representation and system dependencies that are both theoretically infinite and constantly changing. Nevertheless, intellectual property is a commodity and delivering it in ways that the market cannot use is not intelligent, so the actual range of variability in methods of representation and proprietary delivery systems is specifiable.

    IP commerce is a growing sector of the world economy. Digital intellectual property can be distributed using the Internet and physical intellectual property is described and offered for licensing over the Internet, so a common international language and conventions for intellectual property rights statements could be valuable for IP commerce.

    Numerous IPR management languages have been developed and deployed. The technical challenges are not insurmountable. If broader agreement on an international standard for IPR statements could be reached, there would be greater incentive to develop applications based on it and greater competition in offering systems that exploited it. Interoperability between systems could be ensured at the level of exchange of IPR statements without requiring any further agreement about methods. It is not obvious that the W3C is the organization that should be trying to achieve standardization of IPR language, but it is probably well positioned to take on the task and to succeed.

    Sine Qua Non

    Each IP "right" — copyright, patent, trademark — is a bundle of specific, and complex, rights that can be separately licensed. Any viable IPR statements need to enable this decomposition.

    Multiple, independent, and competing claims to IPR exist. The system need not be able to determine their applicability or value, but it must be able to correctly link each to the correct object and subject.

    All IPR statements must make an explicit claim about the source of the right they assert. Colloquial, printed, claims tend not to make this claim explicit.

    Experience

    Our experience is in the management of intellectual property in the form of art images. Artists create artistic originals in which they own copyright for a defined time. In some countries they also have moral rights, exhibition rights, and performance rights in their art. Copyright, exhibit and performance rights may be licensed or transferred in part or in whole, exclusively or non-exclusively, and with or without rights to re-assign. Moral rights are perpetual and cannot be assigned.

    Reproductions of works of art, created under license or after copyright in the original has expired, may enjoy copyright protection. Works of art may incorporate other works of art, either protected or not protected, and many layers of rights may exist in one object at the same time. Rights may exist in parts of an object, and different rights may exist over time. A statement of rights claimed in an object may be incomplete at the time that it is made or become incomplete over time. In addition, rights claimed in an object need not be exclusive.

    Rights to reproduce works of art are exchanged and contracted for in a robust worldwide market. Substantial sums of money are paid for some rights. Even greater sums are currently expended locating rights holders and negotiating with them to obtain rights. The inefficiencies of the current system strongly argue for a better method of transaction, but the range of terms and conditions wanted and offered have, to date, frustrated attempts to develop a more general transaction system for requesting, acquiring and registering rights.