Possible Technology-based Solutions for the Display and Distribution of Copyrighted Electronic Images

Deborah A. Torres
ILS 603, Besser; Fall 1995
October 22, 1995

Introduction -- Copyright Issues in the Electronic Age

The Constitution of the United States provides that Congress has the power "[to] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."[1] This constitutional clause has laid the groundwork for intellectual property law in the United States. It is useful to note that the goal is the promotion of progress of science and useful arts, and that the mechanism by which that is achieved is by securing authors and inventors exclusive rights for a limited period of time.

For the past more than 200 years copyright has been defined and copyright law has been refined. As a draft statement of librarians on lawful uses of copyrighted works stated: "the genius of United States copyright law is that, in conformance with its constitutional foundation, it balances the intellectual property interests of authors, publishers, and copyright owners with society's need for the free exchange of ideas."[2]

In the second half of the 20th century, computer technology has changed how information can be created, stored, distributed, and experienced. Information created, and stored on local computers and computer networks is more easily accessed, reproduced and altered than information based in print technology. Erickson of Dartmouth University outlines the challenges in an article about regarding the future of fair use:

"Computer networks seem to mesh nicely with our founding fathers' vision of information flow. Never before has information been so accessible, with the capacity to promote economic and scholarly growth. But with today's technology, digitally-distributed creative works present serious challenges to copyright compliance. Creative works must be accessible to be of value, but in the digital world today easy access also means vulnerability to unauthorized distribution of perfect reproductions by others. It is just as easy for others to create unauthorized derivative works without proper attribution to the originator or appropriate payment of royalties, or for others to publish unauthorized modifications under the original authors name."[3]

The purpose of this paper is to outline some possible technology-based solutions regarding the control of digital-based copyrighted materials, in particular for digital images. Also, this paper will outline some possible problems and criticisms of technology-based solutions.

Electronic Era and the Protection of Copyright

The "electronic era" has given rise to a debate about the role of copyright and the protection of copyrighted works. Some have celebrated the fact that the electronic environment by its nature has created a relaxed attitude toward copyright protection and arguing that this will provide a more free forum of ideas. Others, such as publishers, argue that unless intellectual property can be guaranteed protection the information provided will lack content and quality. The September 1995 Working Group report on "Intellectual Property and the National Information Infrastructure" frames the discussion this way:

"It is important to recognize that access needs of users of the NII have to be considered in context with the needs of copyright owners to ensure that their rights in their works are recognized and protected. One important factor is the extent to which the marketplace will tolerate measures that restrict access to or use of a copyrighted work. Conversely, without providing a secure environment where copyright owners can be assured that there will be some degree of control over who may access, retrieve and use a work, and, perhaps most importantly, how to effectuate limits on subsequent dissemination of that work without the copyright owner's consent, copyright owners will not make those works available through the NII."[4]

Technology-Based Solutions

In the electronic age, information is available in a variety of formats. Information may be text-based, still images, audio, video or any combination thereof. For example, the advances of technology in digital imaging has sparked many arts and humanities-based institutions, including museums, archives, and libraries, to convert to electronic format their art, history and cultural heritage visual materials. Moreover, these same institutions are providing access to these visual materials over electronic networks. These institutions have had to face the problem of whether or not to provide access to copyrighted visual materials. If the institution wishes to use copyrighted materials, how can ownership rights be controlled?

For example, the Smithsonian Institute has provided an FTP (file transfer protocol) site on the Internet called PHOTO1 to make a variety of Smithsonian photographs available as electronic image files. The images cover topics ranging from air and space to science, technology, history, and even current events. The Smithsonian provides a document of guidelines for the use of the images basically stating that the images are for non-commercial private use.[5] However, there is no guarantee that users will follow the use guidelines. For some of it's online exhibits, the Smithsonian places a black border around the images with a copyright notice in white text on the border. (An example of this is available) The border with the copyright notice is easily removed by anyone who has a image manipulation software program, such as Adobe Photoshop.

Technology-based solutions may provide part of the answer to the control of copyrighted images. The working group report on Intellectual Property and the NII states:

"Technological solutions exist today and improved means are being developed to better protect digital works through varying combinations of hardware and software. Protection schemes can be implemented at the level of the copyrighted work or at more comprehensive levels such as the operating system, the network or both. For example, technological solutions can be used to prevent or restrict access to a work; limit or control access to the source of a work; limit reproduction, adaptation, distribution, performance or display of the work; identify attribution and ownership of a work; and manage or facilitate copyright licensing."[6]

Outline of Technology Controls

Some basic technology controls are outlined in the report:

Server and File Level Controls
Controlling access to the source of the copies of the work, information or data servers. Restrictions at the file level use features in "rendering" software. For example, a content provider may develop specialized software products or implement features in general purpose software products that would control by whom and to what degree a protected work may be used.

Encryption involves scrambling of the data using mathematical principles that can be followed in reverse to "unscramble" the data. A file would be converted from a format that can be manipulated to a scrambled format. Authorization in the form of possession of an appropriate "key" is required to decrypt the file and restore it to a format that can be manipulated format.

Cryptography has "secret key" and "public key" encryption. Secret key means that both the sender and receiver must know and use the same secret key. Public key cryptography was created in order to solve the problem of managing secret keys. Each person gets two keys, a public key and a private key. The public key is published and the private key is kept secret.

The report explains: "Data encrypted using a person's public key can only be decrypted using that person's secret, private key. For instance, a copyright owner could encrypt a work using the public key of the intended recipient. Once the recipient receives the encrypted transmission, he could then use his private key to decrypt that transmission. No secret (private) keys need to be exchanged in this transaction."[7]

Digital Signatures
A unique sequence of digits that, in effect, places a "seal" on a digital work. Generating a digital signature is referred to as "signing" the work. DA digital signature could be used to identify the work and to verify that it's contents have not been altered.

A method to encode digitized information with attributes that cannot be disassociated from the file that contains the information. This is referred to as "digital fingerprinting" or "digital watermarking." This provides a means to indelibly tag a work with specific information. The attributes could be hidden into the file so the embedded information does not interfere with the visual quality of the work. Also, the embedded information could be distributed throughout the work, so that one could ensure detection of the embedded message even after a corruption of the work, such as compression and decompression

Uses of These Technologies

It is probable the technology-solutions outlined above would not be used alone but in conjunction with each other, for instance using a combination of system and file controls along with encryption techniques. Eastman Kodak Company has been using both encryption and watermarks techniques together to safeguard images stored on Kodak Digital Science Photo CD discs. Kodak provides photo cd imaging workstations to enable photofinishers, commercial labs and other Photo CD service providers to add encryption and watermarking features to digitized images. In September 1995, the company announced a upgraded version of Access Plus software that allows users to de-encrypt images and remove watermarks from restricted-access images. This de-cryption software, according to the company, was created to provide professional photographers, graphic arts specialists, stock agencies, and others a secure means of distributing copyrighted images to prospective images. [8].

Other institutions using single technology solutions include:

IBM is using electronic watermarking for the Vatican Library Project, which involves digitizing more than 20,000 documents from it's rare manuscript collection. (Examples of the watermarked images are available)

The National Library of Medicine
The NLM has an online catalog of thousands of print and photographic images from its collection "to assist users in finding illustrative material for private study, scholarship, or research."[8] Images that are suspected of being copyright protected have diagonal line placed through the image. (Examples of the use of these lines are available)
It is also probable that technology-based solutions may be used in conjunction with other suggested solutions such as licensing or contract agreements. Griswold in his paper on "A Method for Protecting Copyright and Networks" suggests just such a situation.[9]

Balancing of Rights

Whatever technology-based solution are used, measure should be taken to ensure that the rights of both owners and consumers/users of images are not compromised, and that users of images bet properly notified as ownership and access restrictions. The intellectual property working group report states:

" Such [technology] security measures must be carefully designed and implemented to ensure that they not only effectively protect the owner's interests in the works but also do not unduly burden use of the work by consumers or compromise their privacy. And measures should be studied to ensure that systems established to serve these functions are not readily defeated."

The report continues:

"To implement these rights management functions, information will likely be included in digital versions of a work (i.e., copyright management information) to inform the user about the authorship and ownership of a work (e.g., attribution information) as well as to indicate authorized uses of the work (e.g., permitted use information). For instance, information may be included in an "electronic envelope" containing a work that provides information regarding authorship, copyright ownership, date of creation or last modification, and terms and conditions of authorized uses. As measures for this purpose become incorporated at lower levels (e.g., at the operating system level), such information may become a fundamental component of a file or information object."[10]

Criticisms/Problems with Technology-Based Solutions

Although copyright protection may be assisted with technology-based solutions, it is highly probable that new technologies will be developed to defeat any protection that technology may provide. The Working Group report addresses this by suggesting that the Copyright Act be amended to include a provision to prohibit the "importation, manufacture or distribution of any device, product, or provision of any service"whose primary purpose to the deactivate or defeat any technology that provides copyright protection. [11]

John Perry Barlow in an article on rethinking patents and copyright in the digital age agrees that cryptography-based solutions invite problems with security and rely on a "protection by barricades" rather than on society's conscience. Barlow argues: It has always appeared to me that the more security you hide your goods behind, the more likely you are to turn your sanctuary into a target. Having come from a place where people leave their keys in their cars and don't even have keys to their houses, I remain convinced that the best obstacle to crime is a society with its ethics intact."[12] Barlow also offers a more practical argument against the use of technology: "People are not going to tolerate much that makes computers harder to use than they already are without any benefit to the user."

Law Professor Henry Perritt, in a conference paper also suggests that encryption solutions may place an undue burden on the user, and that the user will reject the burden:

" ...But the problem [of encryption] is everyone must pay a higher price to use the material. One of the dramatic lessons of the desktop computer revolution was the clear rejection of copyright protection in personal computer software. The reasons that copy protection did not survive in the market place militate against embracing encryption for content. Encryption interferes with realization of electronic markets, because producer and consumer must have the same encryption and description protocols. Encryption burdens processing of electronic information objects because it adds another layer. Some specific implementations have encryption require additional hardware at appreciable costs."[13]

Another problem is that if technology-based solutions are to work and not place an undue burden on the user, the technology must be standardized and be interoperable across platforms. For example, an article in MacWorld points out there are several security programs for electronic mail available on the Internet, but only one of them, PGP (Pretty Good Security) comes in a Macintosh version. Therefore, one would not be able to send a secure e-mail to a person who uses a different security program.[14]


Computer technology has changed how information can be created, stored, distributed, and experienced. Information created, and stored on local computers and computer networks is more easily accessed, reproduced and altered than ever before. Using today's technology, numerous arts and cultural institutions are finding new ways to display and provide access to their print and photographic collections. However, this same new technology poses a serious challenge to copyright compliance.

Some technology-based solutions have been suggested including the use of watermarks and digital embedding of information, encryption, digital signature, and system and file controls. It is probable that institutions will use a combination of these technology solutions, and also in combination with policy- based solutions and licensing agreements. Critics of technology-based solutions state these types of solutions only serve to provide barriers to users and the free flow of information and ideas. Arts, history and cultural institutions who have digitized their photograph collections and wish to make them available on computer networks will have to weigh the costs of technology-based solutions both in hardware and software, and consider whether such solutions will place an undue burden on users of their visual materials.

[1] U.S. Constitution, art. I, sec. 8, cl. 8.

[2] "Statement on Lawful Uses of Copyrighted Works, Working Document". Representatives of the American Association of Law Libraries, American Library Association, Association of Academic Health Sciences Library Directors, Association of Research Libraries, Medical Library Association, Special Libraries Association. January 18, 1995.
URL: http://www.nlc-bnc.ca/documents/infopol/copyright/uses.htm

[3] Erickson, John S. "Can Fair Use Survive our Information-based Future?" Interactive Media Lab Technical Report. Interactive Media Lab, Dartmouth Medical School and Thayer School of Engineering, Dartmouth College, Hanover, NH 03755, oly@picard.dartmouth.edu. 1995.
URL: http://picard.dartmouth.edu/FairUseInfoFuture.html

[4] "Intellectual Property and the National Information Infrastructure: the report of the working group on Intellectual Property Rights." Bruce A. Lehman, chair. September 1995. p. 170
URL: http://www.uspto.gov/web/ipnii/

[5] "Welcome To The "Photo1.Si.Edu" Ftp Server," welcome and use guidelines statement for the Smithsonian Institution's Photo1 ftp site.
URL: http://sunsite.unc.edu:80/pub/multimedia/pictures/smithsonian/smithsonian.ph oto.info.txt

[6] IPNII Working Group report, p. 178

[7] ibid, pp. 186-87

[8] "Upgraded Kodak Software Unlocks Encrypted and Watermarked Photo CD Images." Eastman Kodak Company, press release. September 27, 1995.
URL: http://www.kodak.com/aboutKodak/pressReleases/pr950927-9.shtml

[9] Griswold, Gary N. "Method for Protecting Copyright on Networks." nd.
URL: http://www.nlc-bnc.ca/documents/infopol/copyright/griswold.txt

[10] IPNII Working Group report, p. 191

[11] ibid, pp 230-234

[12] Barlow, John Perry. "A framework for rethinking patents and copyrights in the Digital Age: (Everything you know about intellectual property is wrong)." _WIRED_. No. 2.03. March 1994
URL: http://www.nlc-bnc.ca/documents/infopol/copyright/jpbarlow.htm

[13] Perritt, Henry H. Jr. " Knowbots, Permissions Headers and Contract Law." Paper for the conference on Technological Strategies for Protecting Intellectual Property in the Networked Multimedia Environment. April 2-3, 1993 with revisions of 4/30/93. Henry H. Perritt, Jr., Professor of Law, Villanova Law School, Villanova, PA 19085, (215) 645-7078, FAX (215) 645- 7033, (215) 896-1723, Internet: perritt@ucis.vill.edu
URL: gopher://ming.law.vill.edu:70/00/.chron/.papers/.files/Protecting.Intellectual.Pro perty.txt

[14] Schneier, Bruce. " Internet Essentials: Protect Your E-Mail." _MacWorld_ November 1995.
URL: http://www.macworld.com:80/q/@216212mxmqdq/password/pages/november.9 5/Feature.1210.html
Note: to access this article via the World Wide Web, you will be asked to register with MacWorld Online, if you are not already a subscriber.

More Selected Reading on Electronic Imaging and the Humanties

[1] Besser, Howard. "The Changing Role of Photographic Collections With the Advent of Digitization." Discussion paper for Working Group for Digital Image in Curatorial Practice, George Eastman House, June 4, 1994.
URL: http://www.sils.umich.edu/~howardb/eastman.html

[2] Ester, Michael. "Digital Imaging in the Arts and the Humanities." Conference paper, The Changing Role of Photographic Collections With the Advent of Digitization Discussion Paper for Working Group for Digital Image in Curatorial Practice, George Eastman House, June 4, 1994
URL: gopher://gopher.tmn.com:70/00/Artswire/GEHIMP/ester

To Read More about Cryptography

[1] RSA's Frequently Asked Questions about Today's Cryptography home page.
URL: http://www.rsa.com/rsalabs/faq/faq_home.html

[2] Crypto Stuff and Pretty Good Privacy home page by Phil Zimmerman.
URL: http://zifi.genetics.utah.edu/crypto/crypto.html