Title: Nowadays in this digital era it's impossible to ignore all the changes that communications have faced
Author: palmis
Company: UPN

Palmira Granados Moreno

Digital Signatures and the Protection of Moral Rights.

Nowadays, in this digital era, it is impossible to ignore all the changes that communications have faced. Every work can be digitized and reduced to 0s and 1s. This situation produces homogenization for every kind of information which may contain data, texts, and even sounds and videos. Distances have become shorter and today geographic frontiers have turned into a senseless concept thanks to the new information technology.

These characteristics in communications have a great impact in every activity of our lives, thus Law, among other disciplines, has been affected. Among the affected branches is Copyright Law, because of the great interest and complicated discussion that has arisen about critical principles such as: Which are the roles that Law has to play in this digital era? Do current laws have to change and become suitable for these new times? Is it imperative to create new laws for the new situation? First of all, in order to answer these questions it is necessary to remember that Intellectual Property or Copyright is the field that regulates all the exclusive moral and patrimonial rights to which the author of literary and artistic works is entitled.

It is important to explain that in Mexican Law, Intellectual Property is different from Industrial Property. In Mexican Law, Intellectual Property regulates all the rights that the author of a literary, artistic or scientific work is entitled to. That is, it protects books, phonograms, photographs, videos, architectural works, sculptures, theater plays, movies, drawings, software and all the derivative forms thereof. On the other hand, Industrial Property protects patents, industrial secrets, trademarks, marks, trade names, and so on. Industrial Property is defined as the field in which human intellect tries to propose concise and concrete solutions to very specific problems within industrial and commercial areas, as well as to select distinguishing marks of any establishment, service or merchandising.

It is also necessary to remember that there are many different opinions about the nature of copyright. For some lawyers copyright is like the latin Right of property in which the owner has the right to use the object (ius utendi), the right to get every product resulting from the object (ius fruendi), the right to destroy or simply to dispose of the object (ius abutendi), as well as the right to take back the object from any other holder (ius vindicandi.) For other lawyers copyright is like a right of personality in which the intellectual work is part of the personality itself just like honor, dignity, or reputation. For some others copyright can be seen as a special privilege given by the State because of society's interest in stimulating the creation of intellectual work. For some lawyers copyright is a kind of right with its own nature due to its double content: spiritual or personal, and patrimonial or economic.

Copyright has two types of exclusive rights: patrimonial rights and personal or moral rights. The first type of rights, the patrimonial ones, are those that entitle the author to permit or prohibit the reproduction, publication, material edition by any means, public communication, public transmission or broadcasting, distribution, importation, disclosure of derivative works, or any public use of his intellectual work whatsoever.

On the other hand, the moral rights entitle the author to: decide whether or not to disclose his intellectual work, as well as the nature of that disclosure; demand to be acknowledged as the author of his work, whether through his own name or a pseudonym, or to keep it anonymous; demand that his work be treated with due respect, meaning that he has the right to prohibit any modification or mutilation of his work; and oppose being attributed the paternity of another person's intellectual work. These are called moral rights because the protection given to the author is the acknowledgement of his human dignity on account of the respect due to dignity itself.

Considering that the protection granted by Copyright Law originates precisely from the act of creation itself, the creator of the intellectual work is recognized as the titular of copyright. 

All faculties mentioned have to be exercised respecting such boundaries as: those which originate from the inherent nature of each right; those which arise from collision of different people's rights; those which are based on the ethical considerations particular to a community, and on the economic or social purpose to which every right has to adjust to in order to avoid its misuse; as well as those boundaries based on temporal issues such as the prescription of a right. 

As examples of patrimonial and moral rights whose exercise is limited, one can mention the clause in which it is said that, "...unless otherwise provided, the right to edit separately one or many intellectual works does not entitle the editor to edit all these works together..." (Art. 51 LFDA); or the one that establishes that "...unless otherwise provided, the author of an architectural work cannot prohibit the owner of that work to modify it, but he can prevent that his name be associated to that modified work..." (Art. 92 LFDA.)

The official name of this regulation is Federal Law of Copyright (Ley Federal del Derecho de Autor) and it was published on December 24^th 1996 in the Official Federal Journal.

In order to gain a historical perspective, one must look at how the eldest cultures looked at intellectual property. Only thus, may we dispel this misguided modern notion that pretends that the concept of intellectual property is a "natural" one. In ancient Greece, poetry was completely oral. In these times, authorships were not being claimed, because poets themselves saw their works as part of their society's culture. However, this situation changed a little during the VI century b.C., when commerce and urban society developed giving greater importance of the individual.

In the hebrew Talmud, the essence of copyright appeared when every contributor to this civil-religious law had to be identified as an author, in order to preserve a historical record of academic life.

Under Roman law, there is evidence of publication agreements between authors and booksellers, in which the latter published books of authors who did not have the money to do so.

In medieval Europe, the Roman Catholic Church was in charge of every production, preservation, and distribution of books. This happened because monks were the ones that copied, reproduced, and used literary works, which by the way, were attributed to the monastery as a moral entity. In those times of Christian apogee, artistic creativity was only the manifestation of God through the artist.

During the same era, troubadours and minstrels were the main authors, besides the monks and their works, monopolized by the Church. These authors believed that the moment of creation and composition took place when any intellectual work was presented to an audience, because it was then, when and where the work got creativity, spontaneity and personality from the person who was presenting it.

According to Arnold Hauser, the origin of copyright, just as it is known nowadays, occurred when the Christian monopoly started to disappear and when Universities started to appear. During this period, manuscripts were traded outside the clerical fields and inside the secular fields, mostly in universities. These copies were handmade, so people specialized in making copies and who charged for doing this, appeared and were called stationers. The first stationers were under the supervision, regulation, and price control of universities.

Arnold, HAUSER. The Social History of Art. New York: Alfred A. Knopf, United States of America, 1952, p. 87, quoted by Ronald V. BETTIG. Copyright Culture. West View Press, United States of America, 1996, p.11.

Since the incipient bourgeoisie and secular noble class were eager for knowledge, stationers had to reproduce not only classic works, but they also had to look for new intellectual works and to pay for them as well. This new situation originated a new way of life for every author and gave place to the patrimonial aspect of copyright.

On the other hand, according to Canadian doctrine, the moral aspect of copyright was promoted by all the individualist ideas from the French Revolution because it is the author's personality what is protected by these moral rights.

Considering this brief historical review, one can see that the main purpose of copyright, was and has always been, to increase and promote knowledge. This statement can be inferred from the last paragraphs because when we said that in ancient Greece poetry was oral and considered part of society's culture, that every contributor to the Hebrew Talmud was asked to be identified as authors, and that in medieval Europe production, preservation and distribution of books was in the hands of the Roman Catholic Church and troubadours and minstrels believed that creation happened in the moment of presentation to an audience; it can be noticed that the principal purpose was to maintain every work complete and within the reach of everyone. 
On the other hand, when we mention that in Roman law there existed some kind of publication agreement and that stationers were paying authors for their works in order to publish them originating the patrimonial rights, we conclude that, besides the economic interest to make money out of publication, another purpose of these activities was to promote knowledge, as well as culture.

Current information's main qualities are: non-materialization, homogeneity, globalization (instant distribution all over the world), and immediacy (suppression of intermediaries.)These new characteristics require new and adequate ways of protection.

As a result, the Digital Millennium Copyright Act, among many other clauses, prohibits every circumvention of technological protective measures as well as any manufacture, importation, and public offer of technology, products, services, instruments, or even parts of these in order to circumvent any technological measure implemented to control access to a protected work. 

It also indicates that a service provider shall not be liable for infringement for transmitting, routing, or providing connections to material through a system or network as well as for storing such material in the course of such transmitting, routing or providing connections, if: it was initiated by or at the direction of a person other than the service provider; it is carried out through an automatic technical process without selection of such material by the service provider; the service provider does not select the recipients of such material; no copy of such material made by the service provider is maintained on the system or network for a longer period than is reasonably necessary for the communication; and the material is transmitted without modification to its content.

However, almost every single clause of this instrument is persecutory or prohibitive, and neglects its purpose: to give protection to intellectual works. It does not make sure that the intellectual works are protected, it does not provide any resource to really prevent the infringement of the author’s rights; it only establishes a list of some activities that no one is allowed to practice and a list of penalties that consist whether on a monetary fine or time in jail, in case someone succeeds in violating any copyright.

It is well known that every international instrument related to copyright has originated as a consequence of the development of international relations, appearance of new reproduction and distribution means, and translation to other languages (this was because national protection was insufficient and protection with jurisdictional capacity beyond geographic boundaries was urgent). We believe that, because of the same reasons, it is necessary to reconsider Copyright as we know it, in relation to intellectual works that can be distributed through information technology.

First of all, it has to be established whether or not Copyright law can protect intellectual works distributed through information technology. In Copyright law, any intellectual work, in order to be protected, must be creative, original, created by an individual, fit in one of the fields provided by law (essentially art, science or literature), not fit in any of the categories marked by law as not protected (like ideas; isolated letters, numbers or colours, unless their stylization makes them an original drawing; isolated names, titles or phrases; blank forms to be filled in with any kind of information; any law or legislation; any informative content from the news; and common information, among other excluded categories), and has to be displayed by any perceptible means, in other words, it has to be noticeable by anybody besides its author.

It is also necessary to analyze if an intellectual work distributed through information technology fulfills the requirements of fixation (incorporation of letters, numbers, symbols, sounds, images or whatever other elements in which a work has been expressed, or even any digital representation thereof, to any material base or form, including electronic bases, that makes them be perceived, reproduced or communicated). 

Whenever intellectual works are creative, original, created by individuals, fit in one of the fields provided by law, do not fit in any of the situations marked as not protected and fulfill all the requirements to be considered fixed, these works should be protected properly.

The central thing that one should take into consideration when implementing a proper copyright protection system is that in the kind of works where tangibility is not important, protection should be not over the form that the work takes because digitized works do not have palpable forms, but it should be over the most important part of the work: its content.

Other considerations that have to be taken include that, in the past years, information technology has experienced a great undeniable internationalization and commercialization, and that information technology is foreseen to greatly impact the development of government, commerce, and academic activity; and yet there is no sufficient and appropriate set of laws.

Among many applications of information technology, the ones that make an impact on copyright include hypertext and file transfers. The reason is simple:  because these applications allow everybody to distribute without the author’s permission, modify the original work and distribute it as if it were the author’s version of the work, steal the authorship of someone else’s work, and use the work for free, and it is not even expensive or noticeable to do so. The greater problem of this situation is that the distribution can be made worldwide in just a few seconds, which makes one feel that the situation is totally out of control.

On one hand, the impact of information technology on the moral aspect of Copyright is a consequence of the reduction to 0's and 1's that any work suffers in order to be used with this technology. This reduction brings a number of problems: these works can be easily copied without any loss of quality; they can be modified and transferred, moreover, the modified works can be internationally distributed by a third party under the name of the original authors; they can be distributed under a third party's name; and they can be distributed internationally without the author's permission.

On the other hand, the impact of information technology on the patrimonial aspect of Copyright is a consequence of downloading from the Internet an intellectual work, printing it, or saving it in a floppy disk or in the computer's hard disk. This situation causes the infringement of the patrimonial rights because any intellectual work can be exploited, published, communicated, executed or presented to an audience, distributed and reproduced without assuring the proper author's royalties.

With respect to the proper protection necessary to intellectual works distributed through information technology we consider that digital signatures are the best way to accomplish it. Digital signatures (also known as electronic signatures) are based on cryptography. Cryptography is the part of cryptology that focuses on encryption as well as decryption.

Encryption is the action of taking an original text and converting it into an encrypted text in order to make it unintelligible to whom does not have the decryption secret. Decryption, on the other hand, is the action of taking an encrypted text, and by means of an algorithm and a decryption secret recover the original text.

There are two types of cryptography: symmetrical and asymmetrical.

The first type of cryptography, the one called symmetrical (also known as private-key cryptography), consists in using the same key to encrypt as well as to decrypt. The inconvenience of this system is that a secure communication channel is required to achieve the transmission of the key.

The other type of cryptography is called asymmetrical or public-key cryptography. This one requires that the receptor generates a pair of keys: one public and another one private. He must give the public key to any possible issuer, maybe by publishing it in a database or mass media. Regarding the private key, he must keep it secret. This way, anyone who wishes to send a message to the receptor will encrypt that message using the receptor's public key and then he will send it. After receiving the encrypted message, the receptor must use his private key to decrypt it in order to read it. The results of this method are that the message is kept secret to everybody but the issuer and the receptor, and that the problem of requiring a secure communication channel to achieve the transmission of the key does not exist.

Digital signatures are based on an asymmetrical algorithm used with a simple protocol that inverts the use of the keys. This inversion allows the issuer (author) to encrypt his message (intellectual work) using his private key, and the receptor to decrypt the message using the issuer's public key. There are two advantages of this procedure. The first one is that this message will not be secret since the decryption key is public, but the issuer's identity is guaranteed since he is the only one who has the private key that complements the public key that decrypts the message. The second advantage is that the message's integrity is also guaranteed since if anyone wanted to modify the message, that person would need the issuer's private key to re-sign it.

The use of a hash function to create a sort of summary of the message makes the process more practical.

The final results of using digital signatures to protect intellectual works distributed through information technology are that one will have the certainty of the work's authenticity by guaranteeing the author's identity; and that one will have proof of the signer's intention of claiming authorship of the document he is signing.

The impacts of the aforesaid final results of using digital signatures on Copyright are: 

With respect to the claim of authorship, one will have the certitude that it will only be attributed to the person that has digitally signed the work, since he will be the only one who has the private key that complements the process of encryption and decryption using the corresponding public key.

Regarding the right to claim respect to the integrity of the work, digital signatures make it impossible to modify or manipulate an intellectual work because of the lack of the original author's private key. Even, if a person could modify the work, he would fail to attribute that modification to the original author. This situation is similar to the aforementioned one provided by Copyright law in which the author of an architectural work will not be able to prevent the owner of that work from modifying it, but he will have the right to prevent that his name be associated to that modified work (Art. 92 LFDA.)

In relation to the right to modify his own work, digital signatures function in about the same way as they do regarding the aforesaid right. Only the author who has signed the work should have the private key with which the modified work should be re-signed.

Finally, with respect to the right to prevent that other people's work be attributed to the author, digital signatures assure that authorship be attributed only for the works the author has actually signed.

On the other hand, regarding the other moral rights, that is, determining if a work is going to be disclosed or kept unpublished, and of withdrawing the work from commerce; as well as all of the patrimonial rights, digital signatures fulfill the role of prima facie evidence that the author has not given his permission to execute the aforementioned acts, in case liability is filed against the perpetrator.

In connection with the reasons why it is relevant to implement the regulation of digital signatures as a way to protect intellectual works that are distributed through information technology even if they are practically focused only on moral rights, we can mention the main purpose of Copyright: to increase and promote knowledge.

We insist on this purpose because as Bettig wrote "...the creation of knowledge is a cumulative undertaking. An author, scientist or inventor is more productive because of the activities of those who have come before them. If those who create cannot take advantage of the works of others, the process of creating intellectual property would be far less efficient." Regarding this, moral rights are the part of Copyright that contributes to make possible that those who are the final recipients of the intellectual work can be certain not only of its authenticity, but of its integrity as well, fulfilling in this way the aforementioned purpose.

Ronald V. BETTIG. Copyright Culture. West View Press, United States of America, 1996. p. 103.

Moreover, it is important to realize that cyberspace is part of the real world, and as information technology is part of a social space inside the real world, the Law should protect it.

Now then, our proposal is simple: create a special section, in the Copyright Law, exclusively for intellectual works distributed with information technology, and recognize digital signatures as a means of protecting moral rights, regardless of the field or classification of the work. Hence, ancient royal seals would be brought back to life, not only to seal documents, but to appraise authenticity as well.

Lastly, we can conclude that it is important to understand and protect Copyright for five reasons:
•	A social justice reason, which provides that any author should profit from his work.
•	A cultural development reason, which says that creation of new intellectual works is a consequence of proper Copyright protection.
•	An economic reason, which is devoted to reimbursing every author's investment made in the process of creating an intellectual work.
•	A moral reason, which affirms that, since an intellectual work is a personal expression of its author's thoughts, it is logical that he be given the right to decide whether or not to disclose it, as well as when and how to do it; and to prohibit any modification or mutilation.
•	And a reason of national prestige, which maintains that a nation's idiosyncrasy is made of every intellectual work created by its citizens.

It is necessary to adopt a proper Copyright system in connection with intellectual works distributed through information technology in order to fulfill the compromise acquired when the World Intellectual Property Organization's Copyright Treaty was executed: to contribute to the development and maintenance of Copyright protection regarding to literary and artistic works; to acknowledge the necessity of introducing new international regulations, and of clearing out the interpretation of the current ones, in order to give proper solutions to situations arising from economic, social, cultural, and technological development; to acknowledge the great impact of information technology development on the creation of new works; and to emphasize the great importance as an incentive that an efficient protection has on the creation of new intellectual works.

Finally, taking into consideration all of what we have mentioned, we believe that the implementation of digital signatures, as a way of protection, has the capability of accomplishing the function of protection that the Copyright system, according to its main purpose, requires: to increase and promote knowledge.