There's a new book that was recently released called Beautiful Children by Charles Bock. I found out about it through one of my classes because it's this ridiculously hyped book, receiving the kind of hype from the publisher (Random House) you don't really see these days. We were mostly looking at it to examine its website, which is really flashy and splashy and visual but overall hard to get around. But today we started talking about it again because Random House is allowing people to download the book for free, from today through Friday, from their website as a PDF. (You can access the download site from the site I just linked above.)
The most interesting thing about the fact that the book is available for download without any sort of DRM (digital rights management) on it, so once it's downloaded, users could ostensibly do whatever they want with it. Of course Random House makes you click this little box on their site saying "Copyright: This book is protected by copyright and is reproduced here by permission of the author and Random House. I read/understand the above copyright." But I'm sure many of the people clicking on that box don't actually understand what they're clicking into at all, since Random House provides no further explanation anywhere on the site. My instructor showed us how he was easily able to convert the PDF of the book into a text file. This means the file can now be manipulated any way the user wants, which violates the brief, vague copyright agreement downloaders opted into by checking the box.
I wonder why Random House chose to do this; perhaps they're riding on the coat tails of the recent success of the Oprah website offering a free limited-time PDF download of Suze Orman's latest book. Beautiful Children has hit number 14 on the New York Times Bestseller List, so perhaps RH just sees this as one further step in promoting the book to new readers. Plus, it's a long book and people aren't yet accustomed to reading long texts on the screen, and not that many of us own electronic readers. Perhaps RH is banking on the PDF being a teaser to lead people into purchasing a print copy of the book.
I did download the PDF, which took only seconds to do, but I have no immediate plans to read it. I really had no desire to read the print version of the book, after looking at the obnoxious website, and I downloaded the book mostly out of curiosity. I'll probably page (cyber-page, rather) through it at some point, but I'm in no hurry. We'll see if I actually delve into it deeply.
I just wonder what will happen now that there will be all these free, downloaded, non-DRM-ed PDFs of the book floating around in the ether. Not that there's a great deal of value in pirating something that's already available for free, but still. Time will tell.
What do people think? Are free electronic versions of print books a good idea? Are they a good way to promote an author and boost his or her print sales, or are they just paving the way for people to pirate?
Showing posts with label copyright. Show all posts
Showing posts with label copyright. Show all posts
Wednesday, February 27, 2008
Friday, February 15, 2008
The Pirate's Dilemma: A Look at How to Work with, Not Against, Media "Pirates"
I've got good reason to start blogging on this site again regularly, because this semester, I'm enrolled in a class at Emerson called "Know Your Rights" that covers contracts, rights, permissions, copyright, and all things intellectual property. This means I'll be finding juicy stories once again as well as having fun and fab and just plain bizarre factoids to wax poetic about.
Tonight in class we watched a great slideshow presentation called "The Pirate's Dilemma" that talked about how digital media is changing the way people consume media in general and why the law should work with these "pirates" instead of against them. Granted, the slideshow is ultimately an advertisement for the creator's book, but it's enjoyable to watch and quite informative. I tend to agree with a lot of what he says. And who am I to criticize someone for marketing his book using the internets?
Check it out here or watch below.
Ah, it feels good to be back in the CopyRighteous blogosphere!
UPDATE: I just spent over an hour going through previous entries and tagging them to hopefully make it easier to find information on my blog. My sudden desire to tag was brought on because I am also taking an Electronic Publishing course this semester, and I'm giving metadata a nod. Plus, I love being organized. When I originally created this blog, I didn't really understand what tags were. But now.... oh, the wonders of the internet!
Tonight in class we watched a great slideshow presentation called "The Pirate's Dilemma" that talked about how digital media is changing the way people consume media in general and why the law should work with these "pirates" instead of against them. Granted, the slideshow is ultimately an advertisement for the creator's book, but it's enjoyable to watch and quite informative. I tend to agree with a lot of what he says. And who am I to criticize someone for marketing his book using the internets?
Check it out here or watch below.
Ah, it feels good to be back in the CopyRighteous blogosphere!
UPDATE: I just spent over an hour going through previous entries and tagging them to hopefully make it easier to find information on my blog. My sudden desire to tag was brought on because I am also taking an Electronic Publishing course this semester, and I'm giving metadata a nod. Plus, I love being organized. When I originally created this blog, I didn't really understand what tags were. But now.... oh, the wonders of the internet!
Sunday, August 12, 2007
The End - Or Just The Beginning?
What a long, strange trip it's been.
Delving into copyright and writers' issues over the last three months has been not only a great learning experience but also an adventure of sorts. All great adventures entail a journey, which is exactly what it felt like as I traveled from resource to resource, learning about the basics of copyright and building upon each thing I learned as I came to understand just how all these things fit together and affect writers.
Although I had a basic understanding of the issues I covered in this blog (which is how I determined I wanted to study them in the first place), I had no idea just how complex the topic really was. One of the things that most struck me was just how much copyright affects the lives of anyone working with intellectual property in America today, whether they are creators or consumers. Copyright and its associated rights and contractual implications are of great importance to writers. And yet it seems like copyright is one of the most confusing and least understood things writers find themselves grappling with in the publication process. The purpose of copyright is to protect creators, and it instead seems to confuse and hinder them in many ways. Just as confusing is the fact that many of the legal issues surrounding copyright are not clear-cut, black-and-white issues. Instead, copyright law is tinged a thousand shades of gray; the more you learn about it, the more confusing things seem to get.
In my blog poll, I asked what readers thought of the terms of copyright, and the majority of voters think the terms of copyright are too long. The life-plus-seventy term of copyright today is designed to allow copyright holders and their next of kin to exploit and reap the benefits that come with holding a copyright, yet more often than not, due to the quick turnover rate in the publishing industry, people's works quickly go out of print and it seems like the masses are the ones who are then deprived of access to information. Just as Abby learned in our previous entry, copyright can be just as much of a hindrance as a protection.
How do I feel about current copyright terms? While on one hand I do feel that authors (and all creators for that matter) have the right to be protected, I also feel that copyright terms are prohibitive, especially once an author is dead. As media change, so too do the ways in which we create, share, and use information, and thus I feel as though the way in which we use and apply copyright in the future needs to evolve along with our evolving needs. As the internet continues to expand, it will be increasingly difficult to police everything that goes on in cyberspace, including copyright infringements. The fact that we can now digitize entire books and use them in entirely new ways thanks to technology means that keeping a tight rein over information to prevent its dissemination would be counterproductive and counterintuitive. A happy medium must be reached in which authors profit from their works but users can also profit as well, without having to wait nearly a century for information to go into public domain so that it's easy to access. I feel as though authors should be able to create and assign their own terms of copyright to their works as they deem fit. I know Creative Commons has started serving this need, and I feel as though it'll start to become more of the norm as the century (and technology) progress. I certainly want to talk more about Creative Commons. And that brings me to my next point.
Even tough my project is technically over, I do plan to continue posting entries about issues as they arise. I'm not sure if I just didn't see it before because I wasn't studying it, but I seem to see news items come up more frequently that deal with the very issues I covered in this blog, so there shouldn't be any shortage of things to write about. I hope you've all found my blog an informative resource and I hope that you continue reading. And as always, if you have any feedback or suggestions, please let me know.
Stay tuned... it seems this is only the beginning.
Delving into copyright and writers' issues over the last three months has been not only a great learning experience but also an adventure of sorts. All great adventures entail a journey, which is exactly what it felt like as I traveled from resource to resource, learning about the basics of copyright and building upon each thing I learned as I came to understand just how all these things fit together and affect writers.
Although I had a basic understanding of the issues I covered in this blog (which is how I determined I wanted to study them in the first place), I had no idea just how complex the topic really was. One of the things that most struck me was just how much copyright affects the lives of anyone working with intellectual property in America today, whether they are creators or consumers. Copyright and its associated rights and contractual implications are of great importance to writers. And yet it seems like copyright is one of the most confusing and least understood things writers find themselves grappling with in the publication process. The purpose of copyright is to protect creators, and it instead seems to confuse and hinder them in many ways. Just as confusing is the fact that many of the legal issues surrounding copyright are not clear-cut, black-and-white issues. Instead, copyright law is tinged a thousand shades of gray; the more you learn about it, the more confusing things seem to get.
In my blog poll, I asked what readers thought of the terms of copyright, and the majority of voters think the terms of copyright are too long. The life-plus-seventy term of copyright today is designed to allow copyright holders and their next of kin to exploit and reap the benefits that come with holding a copyright, yet more often than not, due to the quick turnover rate in the publishing industry, people's works quickly go out of print and it seems like the masses are the ones who are then deprived of access to information. Just as Abby learned in our previous entry, copyright can be just as much of a hindrance as a protection.
How do I feel about current copyright terms? While on one hand I do feel that authors (and all creators for that matter) have the right to be protected, I also feel that copyright terms are prohibitive, especially once an author is dead. As media change, so too do the ways in which we create, share, and use information, and thus I feel as though the way in which we use and apply copyright in the future needs to evolve along with our evolving needs. As the internet continues to expand, it will be increasingly difficult to police everything that goes on in cyberspace, including copyright infringements. The fact that we can now digitize entire books and use them in entirely new ways thanks to technology means that keeping a tight rein over information to prevent its dissemination would be counterproductive and counterintuitive. A happy medium must be reached in which authors profit from their works but users can also profit as well, without having to wait nearly a century for information to go into public domain so that it's easy to access. I feel as though authors should be able to create and assign their own terms of copyright to their works as they deem fit. I know Creative Commons has started serving this need, and I feel as though it'll start to become more of the norm as the century (and technology) progress. I certainly want to talk more about Creative Commons. And that brings me to my next point.
Even tough my project is technically over, I do plan to continue posting entries about issues as they arise. I'm not sure if I just didn't see it before because I wasn't studying it, but I seem to see news items come up more frequently that deal with the very issues I covered in this blog, so there shouldn't be any shortage of things to write about. I hope you've all found my blog an informative resource and I hope that you continue reading. And as always, if you have any feedback or suggestions, please let me know.
Stay tuned... it seems this is only the beginning.
Friday, August 10, 2007
A Ruckus over Rights: Abby's Translation Headache
Abby is a bilingual literature lover. In addition to reading books in both English and Spanish, she herself is a writer and she also does translation work.
She's found the work of a particular author (let's call him Pedro) to be particularly moving. Pedro is American but the the work is written in Spanish and Abby wants very much to translate it into English. But she's run into some problems.
First off, Pedro is dead. This means she can't contact him to find out how to get the rights to translate his work. When this is the case, the rights to an author's work are either transferred to the person stipulated in the author's will or, if the author's will doesn't make provisions, the rights are divided up with the rest of the author's property according to intestate laws. Pedro's rights were apparently transferred to a guy who, for the sake of argument, we'll call Jerk (because that's what he's ended up being). Jerk appears to have the rights to Pedro's work, and he's not letting anyone else have them. It saddens Abby, because she loves Pedro's work and she wants to translate it into English so that more people in the U.S. can read it. She even has a "hot" agent interested in her project--IF she can get the translation rights. But the agent's not really doing anything else until Abby gets those rights.
Abby found out more about the book's publication history. The book was originally published in Spanish by a small publisher in Miami as the result of Pedro winning a contest. Jerk helped him to edit the book, which may be why he's the one currently holding the rights. The original publisher of a work usually holds the translation and foreign sales rights of a book as stipulated in the author's contract, so Abby thought that the original publisher of Pedro's work might still have these rights. She contacted them but was told that they no longer held the rights to the work and that they no longer had any other information available on the author or his work either. Abby then found out that the book had been published in Spain. When she tried to contact them, she was told that the rights were held by Jerk. She's now contacted a French publisher who did a French-language edition of the book and is waiting to hear back from them.
In the meantime, what can Abby do? Pedro died in 1993, so the end of the life-plus-seventy-years term of copyright protection is rather a long ways off. Unfortunately, if Jerk is the only person still holding the rights to translate the book, Abby's hands are tied. Since the work is still protected by copyright, any translation Abby published of Pedro's work without holding the rights would be considered a copyright infringement and Abby would be involved in a lawsuit.
This is one of those maddening instances when I get really frustrated at how long copyright lasts in this country. It's particularly frustrating in this instance because there's actually an interest in publishing Pedro's work, which would financially benefit Jerk. Abby isn't sure why he's being so protective of Pedro's rights, but he is. At this point, what should Abby do? If she hears back from the French publisher and their answer is negative, does that mean all hope is lost and she must resign herself to a life of pining away for the Translation that Never Was?
Not quite yet. There's one more thing Abby can do. Since the work was written in the U.S. by an American, it is registered with the U.S. Copyright Office. The Copyright Office allows people to conduct searches to investigate the copyright status of a work. Abby can search their catalog and other records in their Washington, D.C., office for free to find out who currently holds the rights. Or, since the work was registered after 1978, she can use their online database to conduct a search. Or she can have the Copyright Office conduct the search for her for a fee of $150 an hour.
Abby can search online to get more information about Pedro's copyright registration. (I recommend viewing the tutorial that's available on this page to get a better idea of how to use the search function and understand your results.) In Abby's case, I think she should use the online search function to get more information about Pedro's copyright and then perhaps she can contact the Copyright Office with questions about contacting the current copyright holder.
This is, of course, an unfinished story, as Abby still has to conduct her search of these records and also hopefully will be hearing from the French publisher soon. I'll post an update once Abby has found out more information.
It can be frustrating to run into walls such as this one when you're trying to republish work that's still protected by copyright--a copyright closely guarded by seemingly irrational people. Certainly Abby's situation is not unique; I had a professor who encountered the same problem when he tried to publish a dead poet's collected works. Some poems were already in the public domain, but some were not and my professor discovered that the rights were still held by a poet's relative. The relative refused to allow my professor to have the rights to include the protected works in the collection. Why? The relative stood to benefit financially from the arrangement and also would not have had to go to the trouble of doing any work herself; my professor would have done everything editorially and otherwise. Perhaps she thought she could publish the work on her own? Perhaps she just didn't want to share her dead relative's work with anyone? Whatever the reason, my professor had to scrap the project and the literary world is now one work poorer. I hope things don't turn out the same way for Abby, because the last thing we need is to be deprived of a good book.
FOR MORE INFORMATION ON COPYRIGHT SEARCHES
Copyright Office Basics: http://www.copyright.gov/circs/circ1.html
This useful website provides a great deal of useful information on copyright--it's sort of like a copyright primer. There are lots of hyperlinks throughout that provide even further explanations and information.
She's found the work of a particular author (let's call him Pedro) to be particularly moving. Pedro is American but the the work is written in Spanish and Abby wants very much to translate it into English. But she's run into some problems.
First off, Pedro is dead. This means she can't contact him to find out how to get the rights to translate his work. When this is the case, the rights to an author's work are either transferred to the person stipulated in the author's will or, if the author's will doesn't make provisions, the rights are divided up with the rest of the author's property according to intestate laws. Pedro's rights were apparently transferred to a guy who, for the sake of argument, we'll call Jerk (because that's what he's ended up being). Jerk appears to have the rights to Pedro's work, and he's not letting anyone else have them. It saddens Abby, because she loves Pedro's work and she wants to translate it into English so that more people in the U.S. can read it. She even has a "hot" agent interested in her project--IF she can get the translation rights. But the agent's not really doing anything else until Abby gets those rights.
Abby found out more about the book's publication history. The book was originally published in Spanish by a small publisher in Miami as the result of Pedro winning a contest. Jerk helped him to edit the book, which may be why he's the one currently holding the rights. The original publisher of a work usually holds the translation and foreign sales rights of a book as stipulated in the author's contract, so Abby thought that the original publisher of Pedro's work might still have these rights. She contacted them but was told that they no longer held the rights to the work and that they no longer had any other information available on the author or his work either. Abby then found out that the book had been published in Spain. When she tried to contact them, she was told that the rights were held by Jerk. She's now contacted a French publisher who did a French-language edition of the book and is waiting to hear back from them.
In the meantime, what can Abby do? Pedro died in 1993, so the end of the life-plus-seventy-years term of copyright protection is rather a long ways off. Unfortunately, if Jerk is the only person still holding the rights to translate the book, Abby's hands are tied. Since the work is still protected by copyright, any translation Abby published of Pedro's work without holding the rights would be considered a copyright infringement and Abby would be involved in a lawsuit.
This is one of those maddening instances when I get really frustrated at how long copyright lasts in this country. It's particularly frustrating in this instance because there's actually an interest in publishing Pedro's work, which would financially benefit Jerk. Abby isn't sure why he's being so protective of Pedro's rights, but he is. At this point, what should Abby do? If she hears back from the French publisher and their answer is negative, does that mean all hope is lost and she must resign herself to a life of pining away for the Translation that Never Was?
Not quite yet. There's one more thing Abby can do. Since the work was written in the U.S. by an American, it is registered with the U.S. Copyright Office. The Copyright Office allows people to conduct searches to investigate the copyright status of a work. Abby can search their catalog and other records in their Washington, D.C., office for free to find out who currently holds the rights. Or, since the work was registered after 1978, she can use their online database to conduct a search. Or she can have the Copyright Office conduct the search for her for a fee of $150 an hour.
Abby can search online to get more information about Pedro's copyright registration. (I recommend viewing the tutorial that's available on this page to get a better idea of how to use the search function and understand your results.) In Abby's case, I think she should use the online search function to get more information about Pedro's copyright and then perhaps she can contact the Copyright Office with questions about contacting the current copyright holder.
This is, of course, an unfinished story, as Abby still has to conduct her search of these records and also hopefully will be hearing from the French publisher soon. I'll post an update once Abby has found out more information.
It can be frustrating to run into walls such as this one when you're trying to republish work that's still protected by copyright--a copyright closely guarded by seemingly irrational people. Certainly Abby's situation is not unique; I had a professor who encountered the same problem when he tried to publish a dead poet's collected works. Some poems were already in the public domain, but some were not and my professor discovered that the rights were still held by a poet's relative. The relative refused to allow my professor to have the rights to include the protected works in the collection. Why? The relative stood to benefit financially from the arrangement and also would not have had to go to the trouble of doing any work herself; my professor would have done everything editorially and otherwise. Perhaps she thought she could publish the work on her own? Perhaps she just didn't want to share her dead relative's work with anyone? Whatever the reason, my professor had to scrap the project and the literary world is now one work poorer. I hope things don't turn out the same way for Abby, because the last thing we need is to be deprived of a good book.
FOR MORE INFORMATION ON COPYRIGHT SEARCHES
Copyright Office Basics: http://www.copyright.gov/circs/circ1.html
This useful website provides a great deal of useful information on copyright--it's sort of like a copyright primer. There are lots of hyperlinks throughout that provide even further explanations and information.
Thursday, August 9, 2007
Contract Quandary: Ted's Novel
Once again, I've changed my friend's name. However, I'm using the real name of the press he dealt with here because I want others who are potentially considering doing business with them to NOT do so, as they have been involved in lawsuits with more than one of their authors and have had seemingly countless complaints lodged against them. (Go ahead and Google them if you wish, and you'll see it for yourself.)
Ted's a novelist, and a rather talented one at that. But as I mentioned in a previous entry, the publishing industry is pretty tough right now, and Ted's been having a rough time. He sent his query out to many agents, but none of them were biting. He then started querying publishers directly. Still nothing. Finally at the end of his rope, Ted decided that he should probably just self-publish his book. After all, he believed in his book, he understood that it was somewhat unconventional and thus not being picked up by conventional publishers, and he just wanted to see his words in print. He tried for over a year to sell his book and got nowhere, so, in a very self-starter, DIY kind of way, he decided to just do it himself.
But just as he was about to undergo his self-publishing project, he was contacted by a publisher. They wanted to publish his book, they said. Ted was initially quite happy that he'd finally been picked up. He sent out an email to his friends letting them know of his success. "Publish America offered to publish my book," he said. He went on to explain that he would be making royalties from his book (though not very good ones, he admitted) and that he wouldn't have to pay to have his book produced, which is something he would have done if he self-published his work. And by being published by a press rather than being self-published, he thought it would be easier for people to buy his book.
When I received the email, I was curious because I'd never heard of Publish America, and, being a publishing student, I love to learn about different publishers. So I did an internet search to learn more.
I found the publisher's website. I wasn't too impressed with how it looked; it had a somewhat unpolished look that I didn't find terribly professional and the visuals weren't the best, but I knew I shouldn't judge a book by its cover, or a publisher by its website. I browsed around the site a bit, then I went back to the search results page and noticed that there were some articles written about them. I clicked.
What I read wasn't good. Publish America was branded as an "author mill" with countless complaints lodged against it. It was described as being nothing more than a souped-up vanity press, with books that were nearly impossible to find in bookstores, high cover prices, and little or no promotional effort. The company also did minimal editing, and actually charged authors money to edit their work substantially. I read a feature article from the Washington Post, an unflattering Wikipedia entry and posts on the Preditors and Editors site and on other author message boards. I was overwhelmed by the amount of negative feedback I found and quickly emailed Ted to warn him to proceed with caution. I was especially concerned because I read quite a few complaints about how bad the contract was and how hard it was to get out of it. Since I was in the thick of studying contracts, I also asked Ted if he'd signed the contract yet.
He had not. He thanked me for my honesty in warning him about the negative feedback from other Publish America authors and then sent me a copy of the contract they sent him.
At this point, I had seen a few contracts from traditional publishers and had read enough about rights and contractual clauses to have a general idea of what to look for. The contract began with a clause stating that the duration of the contract was seven years, during which time the publisher acquired the right to sell the book in the U.S. and Canada and that the publisher had the exclusive right to arrange for the book to be published in foreign countries. Hmmm, I thought. That's odd. It just sort of threw that in there but never discussed the royalty breakdown that the author would earn upon this sale. And after having read the disgruntled negative comments from Publish America authors, I deduced that the publisher didn't even bother to think about that because they didn't even bother to make the effort to sell the rights anywhere. And I noticed that their statement about selling other rights, such as dramatic and film rights, was a 50-50 split for all these rights, which differed from other publishers whose splits tend to favor the author. The contract also stipulated that the publisher had the right to publish the work electronically, but didn't stipulate royalty splits/author compensation.
The revision clause was pretty lousy, and stipulated no timeline for how much time the author had to revise the work and what constituted an acceptable work. Though through my research I found that the company not only typically didn't bother to revise or edit works but also that the company charged authors for extensive editorial services--that is, those exceeding simple copyediting. And I also noticed that the contract stipulated that if the author decided to add any material to the manuscript after signing the contract, the author had to pay the publisher in order to do this. This seemed messed up to me; I know that editorial departments in publishing houses aren't what they used to be, but surely publishers expect that material is to changed, added, and/or deleted after the contract is signed so that the book is edited up to publication standards. It's one thing to charge an author against expenses if the proofs are ready to go and the author decides to add three entirely new chapters; but it's another thing to charge the author for edits made after the contract is signed, at a point in time when the manuscript hasn't even gone through editing by the publisher.
The contract also stipulated that any revisions made to the work for future editions would not incur any additional initial payment by the publisher. What? Ted probably wouldn't revise any future editions of his novel, since fiction is very rarely revised, but I just thought that was sleazy.
That is, until I got to the portion of the contract detailing the advance. Talk about sleazy.
It was absolutely the last clause in the contract, right above the signature lines, which I also thought was odd because payment isn't usually the very last thing discussed in a contract. It said that the author would receive a one-dollar advance.
One dollar. As in, a buck.
This was what sealed the deal for me. The horror stories and testimonials and articles had me convinced that this company was crap. The one-dollar advance convinced me that not only was this company crap but also that Ted should run screaming for the hills away from this company.
What kind of traditional publisher wouldn't be willing to make an investment in an author, even if only a small $1,000 advance? The dollar advance was like a slap in the face, an insult to the writer. Publish America was nothing more than a vanity press that recovered its expenses by overpricing its books and trusting that the author and his friends and family would buy these overpriced copies directly from them--since they wouldn't be able to find them in bookstores. A paperback novel for $24.95? Why bother? You can get a new hardback novel for that price, or even less that. And you can get it at the bookstore.
Some of the testimonials I read also stated that frustrated authors found it difficult to get out of their contracts after they realized how awfully the company treated them. Others claimed that their contracts were suddenly terminated, with no explanation given by the company, but these people deduced that it was because they had the nerve to pester the company for answers about seemingly fraudulent royalty statements or to ask why bookstores had such problems ordering copies of the book. Bookstores usually don't carry print-on-demand books (which I realized that Publish America books were) because they can't be returned. Apparently, Publish America also offered booksellers a very low discount off of the already high cover price, discouraging stores from buying it. Booksellers and libraries reported having problems ordering copies of the books from major book distributors as well. What's the point of having a book in print, I wondered, if no one can buy it?
After reading the contract and the negative testimonials, I deduced that if Ted truly wanted to see his work in print, he would be better off self-publishing his book with another company. I knew it meant he would have to pay the company for their services and that he'd have to do a lot of publicity work on his own, but I felt that these expenses were Ted's way of paying for his sanity. By self-publishing, Ted would be able to retain all his rights and keep control of his work. He could determine how to market it, what subsidiary rights to sell, if any, and would get to cancel his contract with the self-publisher at any time. This meant that if a traditional publisher finally decided that it did want to publish his work, Ted could easily end his contract with the self-publisher and move on. Or if Ted's second book was picked up by a publisher and they decided to reissue his first book, he'd have the ease to do that as well. Ted may not make a boatload of money off his self-published novel, but at least he'll have the peace of mind that he can control the whole project instead of being locked into a poor contract with a nightmare company. To me, that seems priceless.
Ted's a novelist, and a rather talented one at that. But as I mentioned in a previous entry, the publishing industry is pretty tough right now, and Ted's been having a rough time. He sent his query out to many agents, but none of them were biting. He then started querying publishers directly. Still nothing. Finally at the end of his rope, Ted decided that he should probably just self-publish his book. After all, he believed in his book, he understood that it was somewhat unconventional and thus not being picked up by conventional publishers, and he just wanted to see his words in print. He tried for over a year to sell his book and got nowhere, so, in a very self-starter, DIY kind of way, he decided to just do it himself.
But just as he was about to undergo his self-publishing project, he was contacted by a publisher. They wanted to publish his book, they said. Ted was initially quite happy that he'd finally been picked up. He sent out an email to his friends letting them know of his success. "Publish America offered to publish my book," he said. He went on to explain that he would be making royalties from his book (though not very good ones, he admitted) and that he wouldn't have to pay to have his book produced, which is something he would have done if he self-published his work. And by being published by a press rather than being self-published, he thought it would be easier for people to buy his book.
When I received the email, I was curious because I'd never heard of Publish America, and, being a publishing student, I love to learn about different publishers. So I did an internet search to learn more.
I found the publisher's website. I wasn't too impressed with how it looked; it had a somewhat unpolished look that I didn't find terribly professional and the visuals weren't the best, but I knew I shouldn't judge a book by its cover, or a publisher by its website. I browsed around the site a bit, then I went back to the search results page and noticed that there were some articles written about them. I clicked.
What I read wasn't good. Publish America was branded as an "author mill" with countless complaints lodged against it. It was described as being nothing more than a souped-up vanity press, with books that were nearly impossible to find in bookstores, high cover prices, and little or no promotional effort. The company also did minimal editing, and actually charged authors money to edit their work substantially. I read a feature article from the Washington Post, an unflattering Wikipedia entry and posts on the Preditors and Editors site and on other author message boards. I was overwhelmed by the amount of negative feedback I found and quickly emailed Ted to warn him to proceed with caution. I was especially concerned because I read quite a few complaints about how bad the contract was and how hard it was to get out of it. Since I was in the thick of studying contracts, I also asked Ted if he'd signed the contract yet.
He had not. He thanked me for my honesty in warning him about the negative feedback from other Publish America authors and then sent me a copy of the contract they sent him.
At this point, I had seen a few contracts from traditional publishers and had read enough about rights and contractual clauses to have a general idea of what to look for. The contract began with a clause stating that the duration of the contract was seven years, during which time the publisher acquired the right to sell the book in the U.S. and Canada and that the publisher had the exclusive right to arrange for the book to be published in foreign countries. Hmmm, I thought. That's odd. It just sort of threw that in there but never discussed the royalty breakdown that the author would earn upon this sale. And after having read the disgruntled negative comments from Publish America authors, I deduced that the publisher didn't even bother to think about that because they didn't even bother to make the effort to sell the rights anywhere. And I noticed that their statement about selling other rights, such as dramatic and film rights, was a 50-50 split for all these rights, which differed from other publishers whose splits tend to favor the author. The contract also stipulated that the publisher had the right to publish the work electronically, but didn't stipulate royalty splits/author compensation.
The revision clause was pretty lousy, and stipulated no timeline for how much time the author had to revise the work and what constituted an acceptable work. Though through my research I found that the company not only typically didn't bother to revise or edit works but also that the company charged authors for extensive editorial services--that is, those exceeding simple copyediting. And I also noticed that the contract stipulated that if the author decided to add any material to the manuscript after signing the contract, the author had to pay the publisher in order to do this. This seemed messed up to me; I know that editorial departments in publishing houses aren't what they used to be, but surely publishers expect that material is to changed, added, and/or deleted after the contract is signed so that the book is edited up to publication standards. It's one thing to charge an author against expenses if the proofs are ready to go and the author decides to add three entirely new chapters; but it's another thing to charge the author for edits made after the contract is signed, at a point in time when the manuscript hasn't even gone through editing by the publisher.
The contract also stipulated that any revisions made to the work for future editions would not incur any additional initial payment by the publisher. What? Ted probably wouldn't revise any future editions of his novel, since fiction is very rarely revised, but I just thought that was sleazy.
That is, until I got to the portion of the contract detailing the advance. Talk about sleazy.
It was absolutely the last clause in the contract, right above the signature lines, which I also thought was odd because payment isn't usually the very last thing discussed in a contract. It said that the author would receive a one-dollar advance.
One dollar. As in, a buck.
This was what sealed the deal for me. The horror stories and testimonials and articles had me convinced that this company was crap. The one-dollar advance convinced me that not only was this company crap but also that Ted should run screaming for the hills away from this company.
What kind of traditional publisher wouldn't be willing to make an investment in an author, even if only a small $1,000 advance? The dollar advance was like a slap in the face, an insult to the writer. Publish America was nothing more than a vanity press that recovered its expenses by overpricing its books and trusting that the author and his friends and family would buy these overpriced copies directly from them--since they wouldn't be able to find them in bookstores. A paperback novel for $24.95? Why bother? You can get a new hardback novel for that price, or even less that. And you can get it at the bookstore.
Some of the testimonials I read also stated that frustrated authors found it difficult to get out of their contracts after they realized how awfully the company treated them. Others claimed that their contracts were suddenly terminated, with no explanation given by the company, but these people deduced that it was because they had the nerve to pester the company for answers about seemingly fraudulent royalty statements or to ask why bookstores had such problems ordering copies of the book. Bookstores usually don't carry print-on-demand books (which I realized that Publish America books were) because they can't be returned. Apparently, Publish America also offered booksellers a very low discount off of the already high cover price, discouraging stores from buying it. Booksellers and libraries reported having problems ordering copies of the books from major book distributors as well. What's the point of having a book in print, I wondered, if no one can buy it?
After reading the contract and the negative testimonials, I deduced that if Ted truly wanted to see his work in print, he would be better off self-publishing his book with another company. I knew it meant he would have to pay the company for their services and that he'd have to do a lot of publicity work on his own, but I felt that these expenses were Ted's way of paying for his sanity. By self-publishing, Ted would be able to retain all his rights and keep control of his work. He could determine how to market it, what subsidiary rights to sell, if any, and would get to cancel his contract with the self-publisher at any time. This meant that if a traditional publisher finally decided that it did want to publish his work, Ted could easily end his contract with the self-publisher and move on. Or if Ted's second book was picked up by a publisher and they decided to reissue his first book, he'd have the ease to do that as well. Ted may not make a boatload of money off his self-published novel, but at least he'll have the peace of mind that he can control the whole project instead of being locked into a poor contract with a nightmare company. To me, that seems priceless.
Copyright Conundrum: Nancy's Poetry Website
During my studies I was fortuitous enough to not only have friends of mine read my blog and tell me that it was helpful but also to have friends who experienced some of the very issues my blog entries touch upon. I’ll be presenting their stories here (with names and details changed to protect the innocent!) along with my thoughts. I’ll put each story in a separate entry to make them easier to read.
My friend Nancy is a lover of all things literary. She’s a big supporter of the arts and of emerging artists. She has a master’s degree in literature and taught the subject at the undergraduate level. And she’s also a great writer herself. So when it comes to the written word, I’d have to say she’s a pretty big proponent.
She’s also relatively web-savvy. She’s got blogs and websites for her various publishing and writing projects. I was perusing her online projects recently where I came upon one of her sites where she has posted poems. At first I thought what a neat idea it was—making poetry easily accessible on the web, especially since many of them were lesser-known poems that people might not otherwise have the opportunity to read. As I looked through them, I recognized some as older poems published decades—or even centuries—ago. But there were other poems I didn’t recognize. After one of these poems was a link, which I clicked. It led me to a website for an online magazine in which the poem had originally been published.
Had Nancy gotten permission to reprint the poem on her site? I went back to Nancy’s website to see if there was any information on there about getting permission to reprint, but there was none.
I was concerned. While I agreed with what Nancy was doing—exposing more people to poetry, the sadly most-overlooked form of literature out there it seems—I also knew that she could get into trouble for copyright infringement. Some of the poems she printed were old enough to be in the public domain, so that was no problem. But some other poems were recent creations, meaning that they were still protected by copyright.
Does this even matter? I thought. Nancy’s site is still in its infant growing stages and isn’t visited by a relatively small number of visitors each day, as compared to other websites. Who’s going to notice? Who’s going to care?
But then I thought further about the nature of the internet. The whole point of the internet, and specifically search engines, is to find the information you’re looking for quickly and easily. The internet’s biggest strength and weakness is simultaneously that information is so easy to access. It means that anyone can publish anything—which means copyright infringements flying everywhere. How much these infringements are enforced or even noticed is questionable; but I do think that creators of copyrighted materials are becoming more aware of the issue and are increasingly acting more upon it.
As I thought about who would notice Nancy’s site and its infringements, I imagined one of the poets Nancy had reprinted typing his own name into Google (admit it, we all do it!), and finding not only his poem “My Poem” on the original online magazine site but also on Nancy’s site.
“Wait a minute,” says Mr. Poet. “I know I sold this poem to Website X, but I don’t recall selling it to this Nancy character.” So he contacts someone from Website X, to see if perhaps they sold reprint rights to his poem and just neglected to tell him.
“Huh?” say the editors at Website X. They go to Nancy’s site. Trouble could thus begin. It could begin even if Mr. Poet never got paid a dime to publish his poem initially on Website X. He still probably gave the right to publish to Website X, and if Website X didn’t give anyone else permission to reprint the poem elsewhere (namely Nancy), that spells trouble.
I was in quite a quandary. What to do? How could I protect Nancy from possible infringement problems while still preserving the integrity of her site and helping her spread poetry to a greater audience of readers? (A lofty notion, perhaps, but one I find worthwhile.)
I knew that Nancy could use older poems that are in the public domain with no worries. But what about the poems still protected by copyright that were published on other sites? First I considered urging Nancy to seek permission from all the original publishers of the poems she wanted to post. But after considering this idea, I ruled it out as impractical. First off, Nancy's sole job was not this website; she worked full time and also managed several other projects that took up a considerable amount of her time. Seeking out the permissions would be quite time consuming, not to mention the lag time that would come between Nancy's request and the request being granted. Secondly, Nancy did not make any money from this project (or from some of her other projects) so she was in no position to pay for permissions should some of the original publishers request compensation. So that was out. As I thought about Nancy's problem further, I realized that the very medium she was working in provided a solution that would lessen her risk and allow her to continue with her project.
Nancy could provide the links to the original websites where the copyrighted poems appeared. Providing sources to copyrighted material, without actually reprinting the copyrighted material, is fine. Under fair use, I suggested that she write one or two lines of the poem and then provide the link to the original source. While not 100% fail-proof (remember how sketchy the “guidelines” for determining fair use are?), it was certainly safer than just reprinting the entire poem.
While Nancy was disappointed that she couldn’t just reprint the entire text of any poem she wanted, she was grateful for what I pointed out. “I was wondering if anyone would notice what I was doing,” she admitted. She was a little confused about how else to present her content—she knew she might get in trouble, but she loved poetry so much that she didn’t want to stop doing it—so she appreciated my suggestion and took me up on it.
Even though she no longer reprints whole poems and her site visitors now have to go through the extra step of clicking a link to go to a new page, I think she feels a little safer. And I don’t think it’s such a bad thing to have to take that extra step. The beauty of the internet is that we can present information in nonchronological ways. The way we read and access information is no longer constrained to conventional page format. We can click links to be taken to new pages, have more than one webpage open at a time, watch a video halfway through a story, and even listen to things while we read. What could have presented a problem for Nancy in another format is thankfully solved rather easily and simply due to the nature of the medium she’s using. Copyright conundrum solved.
My friend Nancy is a lover of all things literary. She’s a big supporter of the arts and of emerging artists. She has a master’s degree in literature and taught the subject at the undergraduate level. And she’s also a great writer herself. So when it comes to the written word, I’d have to say she’s a pretty big proponent.
She’s also relatively web-savvy. She’s got blogs and websites for her various publishing and writing projects. I was perusing her online projects recently where I came upon one of her sites where she has posted poems. At first I thought what a neat idea it was—making poetry easily accessible on the web, especially since many of them were lesser-known poems that people might not otherwise have the opportunity to read. As I looked through them, I recognized some as older poems published decades—or even centuries—ago. But there were other poems I didn’t recognize. After one of these poems was a link, which I clicked. It led me to a website for an online magazine in which the poem had originally been published.
Had Nancy gotten permission to reprint the poem on her site? I went back to Nancy’s website to see if there was any information on there about getting permission to reprint, but there was none.
I was concerned. While I agreed with what Nancy was doing—exposing more people to poetry, the sadly most-overlooked form of literature out there it seems—I also knew that she could get into trouble for copyright infringement. Some of the poems she printed were old enough to be in the public domain, so that was no problem. But some other poems were recent creations, meaning that they were still protected by copyright.
Does this even matter? I thought. Nancy’s site is still in its infant growing stages and isn’t visited by a relatively small number of visitors each day, as compared to other websites. Who’s going to notice? Who’s going to care?
But then I thought further about the nature of the internet. The whole point of the internet, and specifically search engines, is to find the information you’re looking for quickly and easily. The internet’s biggest strength and weakness is simultaneously that information is so easy to access. It means that anyone can publish anything—which means copyright infringements flying everywhere. How much these infringements are enforced or even noticed is questionable; but I do think that creators of copyrighted materials are becoming more aware of the issue and are increasingly acting more upon it.
As I thought about who would notice Nancy’s site and its infringements, I imagined one of the poets Nancy had reprinted typing his own name into Google (admit it, we all do it!), and finding not only his poem “My Poem” on the original online magazine site but also on Nancy’s site.
“Wait a minute,” says Mr. Poet. “I know I sold this poem to Website X, but I don’t recall selling it to this Nancy character.” So he contacts someone from Website X, to see if perhaps they sold reprint rights to his poem and just neglected to tell him.
“Huh?” say the editors at Website X. They go to Nancy’s site. Trouble could thus begin. It could begin even if Mr. Poet never got paid a dime to publish his poem initially on Website X. He still probably gave the right to publish to Website X, and if Website X didn’t give anyone else permission to reprint the poem elsewhere (namely Nancy), that spells trouble.
I was in quite a quandary. What to do? How could I protect Nancy from possible infringement problems while still preserving the integrity of her site and helping her spread poetry to a greater audience of readers? (A lofty notion, perhaps, but one I find worthwhile.)
I knew that Nancy could use older poems that are in the public domain with no worries. But what about the poems still protected by copyright that were published on other sites? First I considered urging Nancy to seek permission from all the original publishers of the poems she wanted to post. But after considering this idea, I ruled it out as impractical. First off, Nancy's sole job was not this website; she worked full time and also managed several other projects that took up a considerable amount of her time. Seeking out the permissions would be quite time consuming, not to mention the lag time that would come between Nancy's request and the request being granted. Secondly, Nancy did not make any money from this project (or from some of her other projects) so she was in no position to pay for permissions should some of the original publishers request compensation. So that was out. As I thought about Nancy's problem further, I realized that the very medium she was working in provided a solution that would lessen her risk and allow her to continue with her project.
Nancy could provide the links to the original websites where the copyrighted poems appeared. Providing sources to copyrighted material, without actually reprinting the copyrighted material, is fine. Under fair use, I suggested that she write one or two lines of the poem and then provide the link to the original source. While not 100% fail-proof (remember how sketchy the “guidelines” for determining fair use are?), it was certainly safer than just reprinting the entire poem.
While Nancy was disappointed that she couldn’t just reprint the entire text of any poem she wanted, she was grateful for what I pointed out. “I was wondering if anyone would notice what I was doing,” she admitted. She was a little confused about how else to present her content—she knew she might get in trouble, but she loved poetry so much that she didn’t want to stop doing it—so she appreciated my suggestion and took me up on it.
Even though she no longer reprints whole poems and her site visitors now have to go through the extra step of clicking a link to go to a new page, I think she feels a little safer. And I don’t think it’s such a bad thing to have to take that extra step. The beauty of the internet is that we can present information in nonchronological ways. The way we read and access information is no longer constrained to conventional page format. We can click links to be taken to new pages, have more than one webpage open at a time, watch a video halfway through a story, and even listen to things while we read. What could have presented a problem for Nancy in another format is thankfully solved rather easily and simply due to the nature of the medium she’s using. Copyright conundrum solved.
Wednesday, July 25, 2007
You've Finished the Next Great American Novel... Now What?
So far I’ve covered a heck of a lot about copyright—the history of it, the extensions and the infringements, the fair use and the public domain. But how does this all apply to you, dear reader, in real life? (With “you” here being all my fellow authors reading my blog.)
As a writer, you are, of course, completely immersed in the world you’re creating on the page. You’re thinking about plot points and well-crafted paragraphs. Your words sing on the page and your brain tingles. This is the life! You’re writing, creating! What could be better? In these moments, the furthest thing from your creative mind is your business mind—that part of your brain that reminds you to pay bills on time and warns you not to eat a second piece of cake. But once the ink has dried on the page (or the cursor has blinked after the last word), what comes next?
Even though writers tend to be highly creative and often artistic people, successful writers must learn to be rational, savvy businesspeople too. The whole purpose of copyright is so writers can make money from their creations, and if you’re still reading this blog, I assume you’re no different. Sure, there’s an immeasurable glory that comes with setting your words on a page knowing that they’re out there for all to see. Maybe you don’t care about the associated financial opportunities. Fine. But after all the sweat and love you poured into your manuscript, you should at least care enough about it to protect it. Wouldn’t it suck to suddenly see one of the stories from your short story collection published in a magazine that never paid you a dime for using your work? So it’s important to know how to protect yourself and your work.
To protect yourself, you should make sure to copyright your work. Your work is automatically considered copyrighted once it’s on the page or screen (in other words, in a physical format), so let the world know it. It’s as simple as putting your name, the year of completion (for unpublished works), and the word “copyright” or the symbol © (a “c” in a circle) somewhere on the work.
You should consider adding “All rights reserved” to your unpublished work’s copyright notice to indicate that you still own the complete bundle of rights that you’re entitled to as a copyright owner. These rights are:
• Reproduction of the work (making copies)
• Creation of derivative works based on the original (such as a screenplay version of a novel)
• Distribution of copies to the public (publishing and selling your book)
• Public performance of the work (such as a reading)
• Public display of the work (seems to apply more to visual art)
• Public performance of the work via digital audio transmission (a fancy term for sound recordings)
Don’t shove this list too far into the back of your mind, as we’ll be referring to this bundle of rights again in the near future.
Remember also that your copyright isn’t international—it’s only valid in the U.S., though many countries will offer some protection from infringement thanks to all those international copyright conventions and treaties (remember good old Berne?).
Although registering your copyright with the Copyright Office is no longer required in the United States, it’s still a wise thing to do. As I discussed in earlier entries, unregistered copyrights don’t get the same level of protection if infringement occurs as do registered copyrights. With the rise of information technologies that facilitate the duplication and sharing of information, it’s wise to be protected.
How do you register your copyright? All the information for registering your copyright can be found here. The site includes information on the forms you need to fill out, how to pay the fee, and how to submit the copy or copies of your work that are part of the application. As of today, it’ll cost you $45, but it’s money well spent. DON’T assume that mailing a copy of the manuscript for yourself and leaving it in an unopened envelope, known as poor man’s copyright, will hold up if you ever have an infringement problem. You’ll be a far poorer man if you never registered your copyright and can’t recoup legal fees in an infringement case. So DO be sure to register it with the Copyright Office.
The Copyright Office receives over 600,000 copyright applications a year, so don’t expect them to contact you unless there is a problem or they need more information. You won’t get any sort of confirmation that they’ve received your application, but once it’s been accepted and processed, they will send you a registration certificate.
What if you want to register your copyright under a pen name? Lots of people do so to protect their identities. Perhaps you’re a mathematician who wants to start writing sci-fi. Or you’re well-known as a mystery writer but you want to try your hand at romance. You can go about it in a couple of different ways. You can either register using your real name on the form as the author and then indicating your pseudonym, or you can register only under your pen name. (More detailed instructions are available on Form TX, which is the copyright registration form that’s available on the Copyright Office website linked above.) If you take this latter route, be aware that you may encounter problems concerning proof of ownership, so you should consult an attorney for advice before taking this route.
If you are published and work with an agent, you shouldn’t run into problems concerning payment, since the agent receives your royalty checks from the publisher and then issues you your money minus their commission. But if you work directly with a publisher, you can either reveal your identity but ask that they keep it secret or you can keep your identity a secret and make arrangements with your bank regarding checks made out to your pen name. We’ll talk more about agents and royalties soon, but since we were on the subject of copyright registration, I thought I’d throw this information in there.
Next time we’ll explore the publishing contract. Pages and pages of legalese? What’s a writer to do? I’ll try to help decipher what typically goes into a publishing contract and what it all means.
As a writer, you are, of course, completely immersed in the world you’re creating on the page. You’re thinking about plot points and well-crafted paragraphs. Your words sing on the page and your brain tingles. This is the life! You’re writing, creating! What could be better? In these moments, the furthest thing from your creative mind is your business mind—that part of your brain that reminds you to pay bills on time and warns you not to eat a second piece of cake. But once the ink has dried on the page (or the cursor has blinked after the last word), what comes next?
Even though writers tend to be highly creative and often artistic people, successful writers must learn to be rational, savvy businesspeople too. The whole purpose of copyright is so writers can make money from their creations, and if you’re still reading this blog, I assume you’re no different. Sure, there’s an immeasurable glory that comes with setting your words on a page knowing that they’re out there for all to see. Maybe you don’t care about the associated financial opportunities. Fine. But after all the sweat and love you poured into your manuscript, you should at least care enough about it to protect it. Wouldn’t it suck to suddenly see one of the stories from your short story collection published in a magazine that never paid you a dime for using your work? So it’s important to know how to protect yourself and your work.
To protect yourself, you should make sure to copyright your work. Your work is automatically considered copyrighted once it’s on the page or screen (in other words, in a physical format), so let the world know it. It’s as simple as putting your name, the year of completion (for unpublished works), and the word “copyright” or the symbol © (a “c” in a circle) somewhere on the work.
You should consider adding “All rights reserved” to your unpublished work’s copyright notice to indicate that you still own the complete bundle of rights that you’re entitled to as a copyright owner. These rights are:
• Reproduction of the work (making copies)
• Creation of derivative works based on the original (such as a screenplay version of a novel)
• Distribution of copies to the public (publishing and selling your book)
• Public performance of the work (such as a reading)
• Public display of the work (seems to apply more to visual art)
• Public performance of the work via digital audio transmission (a fancy term for sound recordings)
Don’t shove this list too far into the back of your mind, as we’ll be referring to this bundle of rights again in the near future.
Remember also that your copyright isn’t international—it’s only valid in the U.S., though many countries will offer some protection from infringement thanks to all those international copyright conventions and treaties (remember good old Berne?).
Although registering your copyright with the Copyright Office is no longer required in the United States, it’s still a wise thing to do. As I discussed in earlier entries, unregistered copyrights don’t get the same level of protection if infringement occurs as do registered copyrights. With the rise of information technologies that facilitate the duplication and sharing of information, it’s wise to be protected.
How do you register your copyright? All the information for registering your copyright can be found here. The site includes information on the forms you need to fill out, how to pay the fee, and how to submit the copy or copies of your work that are part of the application. As of today, it’ll cost you $45, but it’s money well spent. DON’T assume that mailing a copy of the manuscript for yourself and leaving it in an unopened envelope, known as poor man’s copyright, will hold up if you ever have an infringement problem. You’ll be a far poorer man if you never registered your copyright and can’t recoup legal fees in an infringement case. So DO be sure to register it with the Copyright Office.
The Copyright Office receives over 600,000 copyright applications a year, so don’t expect them to contact you unless there is a problem or they need more information. You won’t get any sort of confirmation that they’ve received your application, but once it’s been accepted and processed, they will send you a registration certificate.
What if you want to register your copyright under a pen name? Lots of people do so to protect their identities. Perhaps you’re a mathematician who wants to start writing sci-fi. Or you’re well-known as a mystery writer but you want to try your hand at romance. You can go about it in a couple of different ways. You can either register using your real name on the form as the author and then indicating your pseudonym, or you can register only under your pen name. (More detailed instructions are available on Form TX, which is the copyright registration form that’s available on the Copyright Office website linked above.) If you take this latter route, be aware that you may encounter problems concerning proof of ownership, so you should consult an attorney for advice before taking this route.
If you are published and work with an agent, you shouldn’t run into problems concerning payment, since the agent receives your royalty checks from the publisher and then issues you your money minus their commission. But if you work directly with a publisher, you can either reveal your identity but ask that they keep it secret or you can keep your identity a secret and make arrangements with your bank regarding checks made out to your pen name. We’ll talk more about agents and royalties soon, but since we were on the subject of copyright registration, I thought I’d throw this information in there.
Next time we’ll explore the publishing contract. Pages and pages of legalese? What’s a writer to do? I’ll try to help decipher what typically goes into a publishing contract and what it all means.
Monday, July 16, 2007
Proponents and Opponents to the CTEA, and Changes to CopyRighteous
As with any worthwhile cause/fight, the CTEA has those who support it and those who oppose it. And when it comes to public domain, people who are somehow invested in intellectual property get pretty passionate.
Supporters of the CTEA were, unsurprisingly, copyright holders, especially entertainment corporations like Disney and artist estates. (Some people even called the CTEA the "Mickey Mouse Act" because Disney wanted to prevent old Mickey Mouse cartoons from becoming public domain works.) Opponents to the CTEA included libraries, scholars, researchers, and educators.
In the previous entry, I went over some of the reasons why Congress passed the CTEA. These were all reasons the proponents of the CTEA agreed with. If their creations (or their parents' or grandparents' creations or their corporations creations) were permitted to go into the public domain, the proponents would no longer benefit financially from them. Some proponents also argued that if these works were allowed to go into the public domain that they'd be converted from their original purpose into something perverse or unrecognizable. So in addition to the benefits of exploitation, the proponents wanted to maintain creative control over these copyrighted works.
Opponents argued that the continual lengthening of copyright terms meant that there was no limit to the time frame Congress could grant to copyright holders and their estates. The longer these terms became, opponents argued, the closer the U.S. slipped to perpetual copyright--something that would eliminate the addition of new works to the public domain entirely. Opponents also argued that the majority of copyrighted works were only profitable the first few years after they were created, and then either went out of print or otherwise became unprofitable. By extending the terms of copyright, these works were being kept out of the public domain--where they could potentially be discovered by others--for a longer period of time. Due to this limited period of profitability for most copyrighted works, opponents argued, there was little economic incentive for most people to have such a long copyright term. It only really made sense for corporations and franchises and for those wildly successful artistic works that are few and far between.
But the public domain doesn't encourage the creation of new works, argued CTEA proponents. The incentive to create new works lay in the fact that copyright protected the author's work (and paid off for the author's descendants) in the event that the work did become financially successful.
Opponents countered by saying that the public domain needed to be constantly replenished in order for artistic creation to continually flourish. Artists needed to be able to draw on previous works without fear of infringement. Besides, said opponents to CTEA, preventing works from going into the public domain is harmful because it prevents access to the many intellectual property works that are not famous or commercially exploited and that are not available for the public to access and use due to the extended copyright. Sometimes the copyright holders of these works die without an estate, or forget they even own a copyright, or just disappear. And many of these people's works become what is known as orphan works--works that are no longer in print or easily accessible to the public but that, due to copyright terms and extensions, aren't due to be in the public domain for who knows how long because no one knows if the holder is alive or dead. Orphan books are a fascinating chapter of copyright that I do hope I can explore more deeply in the future.
Another reason CTEA opponents clamored against it is that evolving technologies like the Internet and other forms of digital media mean that there are many more avenues for people to access intellectual property. Having a bigger public domain means that more material would be available to more people. But proponents of CTEA want to exploit these new media as new revenue streams.
Constitutional scholar Lawrence Lessig and electronic publisher Eric Eldred took the case that copyright extension was unconstitutional to the Supreme Court in Eldred v. Ashcroft. You can read more about the case here and an article by Lawrence Lessig here that explain more about it. Also good to read is the following article debunking the "myth" of public domain. (Be forwarned: it's long. Really long. And it has many footnotes. I wish I could share my humorous comments that I made on it throughout, but I have no idea how I'd upload a PDF on here.)
I honestly have much more to say about public domain and my thoughts on it. I believe that the public domain is a good thing, and I believe that having access to works such as orphan works is vitally important. I believe that evolving technologies are making the sharing of information so easy that to deprive people of works they should be able to access but can't is a detriment to society. But I also believe that the creators of intellectual property should have a right to benefit from their creations, and to allow their next of kin to benefit from them as well. So I hope that copyright terms are not extended again, because with people's longer life spans, that means that it will take even longer for works to reach the public domain. I am also glad for things like Creative Commons, which allows people to choose how much copyright they want to keep and to what degree they want to protect their work.
Clearly, there's much more to say, and I do hope to carry on this discussion about Creative Commons, orphan books, and online publishing and cataloging projects like Google Books. But I've actually decided to take this project in a different direction for the duration of the semester, and I hope you'll all join me for the ride.
For the remainder of my project, I've chosen to focus on how copyright affects authors. It's all fine and good to talk about all of this stuff theoretically (which I've been doing for the most part until now), but now I'd like to apply it in a very real context that is relevant to my career choice of publishing and that also applies to many of my readers and colleagues, who are authors or involved with authors themselves. I'll be examining some cases in publishing involving writers' rights issues and I'll be looking at copyright issues in the context of author contracts. I'll also take a look at subsidiary rights. Basically it'll be a look at the legal process that goes into making a book and the ecconomics of copyright. So my hope is that this will serve as a sort of go-to guide for people who want to know more about their rights as writers.
Once the project ends and I've completed this leg of it, I'll probably continue to read and post about some of the other issues I mentioned above, because they really do interest me, so I hope you'll all stay tuned...
Supporters of the CTEA were, unsurprisingly, copyright holders, especially entertainment corporations like Disney and artist estates. (Some people even called the CTEA the "Mickey Mouse Act" because Disney wanted to prevent old Mickey Mouse cartoons from becoming public domain works.) Opponents to the CTEA included libraries, scholars, researchers, and educators.
In the previous entry, I went over some of the reasons why Congress passed the CTEA. These were all reasons the proponents of the CTEA agreed with. If their creations (or their parents' or grandparents' creations or their corporations creations) were permitted to go into the public domain, the proponents would no longer benefit financially from them. Some proponents also argued that if these works were allowed to go into the public domain that they'd be converted from their original purpose into something perverse or unrecognizable. So in addition to the benefits of exploitation, the proponents wanted to maintain creative control over these copyrighted works.
Opponents argued that the continual lengthening of copyright terms meant that there was no limit to the time frame Congress could grant to copyright holders and their estates. The longer these terms became, opponents argued, the closer the U.S. slipped to perpetual copyright--something that would eliminate the addition of new works to the public domain entirely. Opponents also argued that the majority of copyrighted works were only profitable the first few years after they were created, and then either went out of print or otherwise became unprofitable. By extending the terms of copyright, these works were being kept out of the public domain--where they could potentially be discovered by others--for a longer period of time. Due to this limited period of profitability for most copyrighted works, opponents argued, there was little economic incentive for most people to have such a long copyright term. It only really made sense for corporations and franchises and for those wildly successful artistic works that are few and far between.
But the public domain doesn't encourage the creation of new works, argued CTEA proponents. The incentive to create new works lay in the fact that copyright protected the author's work (and paid off for the author's descendants) in the event that the work did become financially successful.
Opponents countered by saying that the public domain needed to be constantly replenished in order for artistic creation to continually flourish. Artists needed to be able to draw on previous works without fear of infringement. Besides, said opponents to CTEA, preventing works from going into the public domain is harmful because it prevents access to the many intellectual property works that are not famous or commercially exploited and that are not available for the public to access and use due to the extended copyright. Sometimes the copyright holders of these works die without an estate, or forget they even own a copyright, or just disappear. And many of these people's works become what is known as orphan works--works that are no longer in print or easily accessible to the public but that, due to copyright terms and extensions, aren't due to be in the public domain for who knows how long because no one knows if the holder is alive or dead. Orphan books are a fascinating chapter of copyright that I do hope I can explore more deeply in the future.
Another reason CTEA opponents clamored against it is that evolving technologies like the Internet and other forms of digital media mean that there are many more avenues for people to access intellectual property. Having a bigger public domain means that more material would be available to more people. But proponents of CTEA want to exploit these new media as new revenue streams.
Constitutional scholar Lawrence Lessig and electronic publisher Eric Eldred took the case that copyright extension was unconstitutional to the Supreme Court in Eldred v. Ashcroft. You can read more about the case here and an article by Lawrence Lessig here that explain more about it. Also good to read is the following article debunking the "myth" of public domain. (Be forwarned: it's long. Really long. And it has many footnotes. I wish I could share my humorous comments that I made on it throughout, but I have no idea how I'd upload a PDF on here.)
I honestly have much more to say about public domain and my thoughts on it. I believe that the public domain is a good thing, and I believe that having access to works such as orphan works is vitally important. I believe that evolving technologies are making the sharing of information so easy that to deprive people of works they should be able to access but can't is a detriment to society. But I also believe that the creators of intellectual property should have a right to benefit from their creations, and to allow their next of kin to benefit from them as well. So I hope that copyright terms are not extended again, because with people's longer life spans, that means that it will take even longer for works to reach the public domain. I am also glad for things like Creative Commons, which allows people to choose how much copyright they want to keep and to what degree they want to protect their work.
Clearly, there's much more to say, and I do hope to carry on this discussion about Creative Commons, orphan books, and online publishing and cataloging projects like Google Books. But I've actually decided to take this project in a different direction for the duration of the semester, and I hope you'll all join me for the ride.
For the remainder of my project, I've chosen to focus on how copyright affects authors. It's all fine and good to talk about all of this stuff theoretically (which I've been doing for the most part until now), but now I'd like to apply it in a very real context that is relevant to my career choice of publishing and that also applies to many of my readers and colleagues, who are authors or involved with authors themselves. I'll be examining some cases in publishing involving writers' rights issues and I'll be looking at copyright issues in the context of author contracts. I'll also take a look at subsidiary rights. Basically it'll be a look at the legal process that goes into making a book and the ecconomics of copyright. So my hope is that this will serve as a sort of go-to guide for people who want to know more about their rights as writers.
Once the project ends and I've completed this leg of it, I'll probably continue to read and post about some of the other issues I mentioned above, because they really do interest me, so I hope you'll all stay tuned...
Wednesday, July 11, 2007
So Why Extend Copyright Terms Anyway?
I’ve been absent from the blogosphere for the past week because I was on vacation, attending to birthdays and parties and weddings (oh my!), but during that whole time I found myself thinking and reading about public domain. Really! This week I’m playing catch up and will be posting entries more frequently.
Ah, public domain. There’s so much to say—so much so that I feel like I don’t even know where to begin. I know I outlined what it is in my previous entry and I touched upon the Copyright Term Extension Act (from here on out referred to as CTEA). But boy oh boy did that Sonny Bono ever open up a can of worms.
The CTEA is called the Sonny Bono Act because Congressman Bono was a big proponent and sponsor of extending the terms of copyright. In fact, his wife and congressional successor, Mary Bono, is cited as saying that Sonny wanted copyright terms to last “forever”—terms that would violate the Constitution, which only allows copyrights to exist for a limited amount of time. The CTEA extended the terms of copyright to life of the author plus 70 years (so they added 20 years to the already existing 50-year term) and they also retroactively applied copyright to things that would have gone into the public domain. Of course this pissed off a lot of people. Even though the Constitution gave Congress the power to extend the terms of copyright (as long as the duration of the term was “limited”), there were many people who were against this, for a variety of reasons. And of course there were many people who were strongly for the lengthening of these terms—mainly copyright holders, media conglomerates, and the descendants of successful creators. But before we look at these folks and their points of view, let’s examine why Congress extended copyright terms in the first place.
The United States wanted to match the European Union’s copyright terms. This wasn’t just a case of competition. American authors wouldn’t be protected by the European copyright terms of life plus 70 unless the American copyright terms matched. Plus, the United States has become a major exporter of copyrighted material, so Congress figured the United States should lead rather than follow when it came to copyright terms. It would also allow for more timely collection of payments owed to the United States for its exported copyrighted materials.
The United States also wanted to encourage further investments in existing copyrighted works. How does one further invest in an already existing work? Converting things into new formats. Think of all the movies that existed before the advent of the DVD player. A lot of those movies that were previously only available on VHS are now also available on DVD (and other forms of media that I probably don’t even know exist because I’m a technological troglodyte). That’s a further investment. Thus Congress was embracing the fact that the advent of new technologies meant new opportunities for the exploitation of existing copyrighted materials.
Congress also wanted to be sure that the descendants of creators got their fair share of profits from a copyrighted work. Since people now have longer life expectancies, Congress said, it only made sense to extend the terms of copyright so that the children and grandchildren of authors and artists could continue to earn revenues.
Congress also believed that extending the terms of copyright would encourage the creation of new works. The reasoning for this one hinges on the previous point of providing for one’s descendants. Artistic creators testified before Congress saying that knowing that the profits from their works would be available for a longer period of time to their next of kin would give them added incentive to create further artistic works. Knowing that a creator could benefit from his or her creation for a longer period of time would encourage more people to be creators, Congress reasoned, and thus the arts and sciences would progress. The extended term of copyright protection would thus encourage the creation of more works than would otherwise be created, and this would thus lead to an increased number of works that would eventually land in the public domain when the copyrights expired.
Since the Constitution never specifies the maximum duration of copyright term, simply that the term must be “limited” (that is, finite), in theory Congress could continually extend the length of copyright duration so that works take centuries to reach the public domain. And herein lies the problem that has raised a rallying cry from opponents—something we’ll cover next time when we examine the pros and cons of the CTEA and how it affects the public domain.
USEFUL LINKS
A site all about copyright extension: http://www.copyrightextension.com/
The Senate Report 104-315 CTEA (if you really want to read the whole thing…): http://thomas.loc.gov/cgi-bin/cpquery/R?cp104:FLD010:@1(sr315)
Ah, public domain. There’s so much to say—so much so that I feel like I don’t even know where to begin. I know I outlined what it is in my previous entry and I touched upon the Copyright Term Extension Act (from here on out referred to as CTEA). But boy oh boy did that Sonny Bono ever open up a can of worms.
The CTEA is called the Sonny Bono Act because Congressman Bono was a big proponent and sponsor of extending the terms of copyright. In fact, his wife and congressional successor, Mary Bono, is cited as saying that Sonny wanted copyright terms to last “forever”—terms that would violate the Constitution, which only allows copyrights to exist for a limited amount of time. The CTEA extended the terms of copyright to life of the author plus 70 years (so they added 20 years to the already existing 50-year term) and they also retroactively applied copyright to things that would have gone into the public domain. Of course this pissed off a lot of people. Even though the Constitution gave Congress the power to extend the terms of copyright (as long as the duration of the term was “limited”), there were many people who were against this, for a variety of reasons. And of course there were many people who were strongly for the lengthening of these terms—mainly copyright holders, media conglomerates, and the descendants of successful creators. But before we look at these folks and their points of view, let’s examine why Congress extended copyright terms in the first place.
The United States wanted to match the European Union’s copyright terms. This wasn’t just a case of competition. American authors wouldn’t be protected by the European copyright terms of life plus 70 unless the American copyright terms matched. Plus, the United States has become a major exporter of copyrighted material, so Congress figured the United States should lead rather than follow when it came to copyright terms. It would also allow for more timely collection of payments owed to the United States for its exported copyrighted materials.
The United States also wanted to encourage further investments in existing copyrighted works. How does one further invest in an already existing work? Converting things into new formats. Think of all the movies that existed before the advent of the DVD player. A lot of those movies that were previously only available on VHS are now also available on DVD (and other forms of media that I probably don’t even know exist because I’m a technological troglodyte). That’s a further investment. Thus Congress was embracing the fact that the advent of new technologies meant new opportunities for the exploitation of existing copyrighted materials.
Congress also wanted to be sure that the descendants of creators got their fair share of profits from a copyrighted work. Since people now have longer life expectancies, Congress said, it only made sense to extend the terms of copyright so that the children and grandchildren of authors and artists could continue to earn revenues.
Congress also believed that extending the terms of copyright would encourage the creation of new works. The reasoning for this one hinges on the previous point of providing for one’s descendants. Artistic creators testified before Congress saying that knowing that the profits from their works would be available for a longer period of time to their next of kin would give them added incentive to create further artistic works. Knowing that a creator could benefit from his or her creation for a longer period of time would encourage more people to be creators, Congress reasoned, and thus the arts and sciences would progress. The extended term of copyright protection would thus encourage the creation of more works than would otherwise be created, and this would thus lead to an increased number of works that would eventually land in the public domain when the copyrights expired.
Since the Constitution never specifies the maximum duration of copyright term, simply that the term must be “limited” (that is, finite), in theory Congress could continually extend the length of copyright duration so that works take centuries to reach the public domain. And herein lies the problem that has raised a rallying cry from opponents—something we’ll cover next time when we examine the pros and cons of the CTEA and how it affects the public domain.
USEFUL LINKS
A site all about copyright extension: http://www.copyrightextension.com/
The Senate Report 104-315 CTEA (if you really want to read the whole thing…): http://thomas.loc.gov/cgi-bin/cpquery/R?cp104:FLD010:@1(sr315)
Thursday, June 28, 2007
Public Domain: What Is It?
Public domain. The term makes me think of a sprawling public space, like Boston Common, except instead of being covered in grass, dog poo, and panhandlers, it’s covered in ideas. Piles of books, stacks of DVDs, painted canvases spreading as far as the eye can see, all for the taking. And in essence, this image is a somewhat accurate manifestation of what public domain actually is.
So what is it? I like to think of it as the happy hunting ground where intellectual property goes after its copyright has expired. But instead of the intellectual properties going there to die, they are instead experiencing a sort of rebirth—a second life. Because intellectual property that’s in the public domain is available for anyone to use, in any capacity, with no infringement repercussions. And works that have entered the public domain can’t be copyrighted again, either. So it’s all there for the taking.
As a lover of all things literary, I find the concept of public domain fascinating. I just wish there were a better term for it. For some reason, the word “public” conjures images of dilapidated facilities that have grown shabby after years of use by the masses, something that has been devalued due to overuse. Really public domain is a hugely important thing. If the copyright on intellectual property never expired, the copyright owners and their estates would basically have a monopoly of control on that piece of work, which could potentially limit or eliminate the public’s access to it. Imagine if Shakespeare’s plays were under copyright, and his descendants charged exorbitant sums for anyone to publish or perform his plays. How many less people would know and appreciate his works? Think of all the different editions of Shakespeare’s plays currently available, and all the times his plays are performed around the world. How would this be possible if his work were protected by a copyright that never expired?
The duration of copyright has changed throughout the years, progressively becoming a longer and longer term. Currently in the U.S., the terms of copyright protection are life of the author plus 70 years (for most works, but exceptions include work-for-hire, anonymous/pseudonymous works, and works by corporate entities*), and this is the same for Berne Convention countries. Those plus-70 years alone are a pretty long time, let alone the addition of however many years the author is alive. The current terms of copyright also mean that a person needs to know a little basic arithmetic in order to determine when a work’s copyright has expired and it has become public domain. It all comes back to Sonny Bono (yes, that Sonny Bono) and Mickey Mouse.
The Sonny Bono Copyright Extension Act of 1998 warrants its own entry exploring the pros and cons of its passage, as it has raised a great deal of debate about the nature of copyright and the constitutionality of extending copyright. For now, I’ll just say that it’s the act responsible for extending copyright to life plus 70 years for post-1978 works. Works published before 1978 also received a second renewal term of 67 years, up from the previous 28 years, and the renewal became automatic. It’s all pretty confusing to figure out when what expires and how long something is protected, so here’s a breakdown for works published in the U.S. (This confusion, of course, is somewhat of a given since as we’ve already learned, nothing involving copyright is ever simple.)
Works are in the public domain if they were:
• published before 1923
• published between 1923 and 1978 without a copyright notice
• published between 1978 and March 1, 1989 without a notice and without subsequent registration
• published between 1923 and 1963 with notice but the copyright was not renewed
Works are protected for 95 years after the publication date if they were:
• published between 1923 without notice but the copyright was renewed
Works are protected for life of the author plus 70 years if they were:
• published between 1978 and March 1, 1989 without notice but with subsequent registration
• published between 1964 and 1978 with notice
• published between 1978 and March 1, 1989 with notice
• published after March 1, 1989 with no conditions necessary
So that’s a basic rundown of what public domain is and how to figure out when a work’s copyright expires. In my next entry, I’ll talk about the proponents and opponents and pros and cons of the Copyright Term Extension Act (CTEA).
*COPYRIGHT EXCEPTIONS
Works for hire, works held by corporate entities, works under a pseudonym or published anonymously: term of copyright is 95 years from date of first publication or 120 years from date of creation, whichever comes first.
FOR FURTHER READING
Complete Copyright: An Everyday Guide for Librarians by Carrie Russell. This book is awesome; it explains everything in plain language, has lots of sidebars of information, and it also includes all these anecdotes about a group of librarians and their copyright woes.
The Sonny Bono Copyright Term Extension Act: http://www.copyrightextension.com/page01.html
So what is it? I like to think of it as the happy hunting ground where intellectual property goes after its copyright has expired. But instead of the intellectual properties going there to die, they are instead experiencing a sort of rebirth—a second life. Because intellectual property that’s in the public domain is available for anyone to use, in any capacity, with no infringement repercussions. And works that have entered the public domain can’t be copyrighted again, either. So it’s all there for the taking.
As a lover of all things literary, I find the concept of public domain fascinating. I just wish there were a better term for it. For some reason, the word “public” conjures images of dilapidated facilities that have grown shabby after years of use by the masses, something that has been devalued due to overuse. Really public domain is a hugely important thing. If the copyright on intellectual property never expired, the copyright owners and their estates would basically have a monopoly of control on that piece of work, which could potentially limit or eliminate the public’s access to it. Imagine if Shakespeare’s plays were under copyright, and his descendants charged exorbitant sums for anyone to publish or perform his plays. How many less people would know and appreciate his works? Think of all the different editions of Shakespeare’s plays currently available, and all the times his plays are performed around the world. How would this be possible if his work were protected by a copyright that never expired?
The duration of copyright has changed throughout the years, progressively becoming a longer and longer term. Currently in the U.S., the terms of copyright protection are life of the author plus 70 years (for most works, but exceptions include work-for-hire, anonymous/pseudonymous works, and works by corporate entities*), and this is the same for Berne Convention countries. Those plus-70 years alone are a pretty long time, let alone the addition of however many years the author is alive. The current terms of copyright also mean that a person needs to know a little basic arithmetic in order to determine when a work’s copyright has expired and it has become public domain. It all comes back to Sonny Bono (yes, that Sonny Bono) and Mickey Mouse.
The Sonny Bono Copyright Extension Act of 1998 warrants its own entry exploring the pros and cons of its passage, as it has raised a great deal of debate about the nature of copyright and the constitutionality of extending copyright. For now, I’ll just say that it’s the act responsible for extending copyright to life plus 70 years for post-1978 works. Works published before 1978 also received a second renewal term of 67 years, up from the previous 28 years, and the renewal became automatic. It’s all pretty confusing to figure out when what expires and how long something is protected, so here’s a breakdown for works published in the U.S. (This confusion, of course, is somewhat of a given since as we’ve already learned, nothing involving copyright is ever simple.)
Works are in the public domain if they were:
• published before 1923
• published between 1923 and 1978 without a copyright notice
• published between 1978 and March 1, 1989 without a notice and without subsequent registration
• published between 1923 and 1963 with notice but the copyright was not renewed
Works are protected for 95 years after the publication date if they were:
• published between 1923 without notice but the copyright was renewed
Works are protected for life of the author plus 70 years if they were:
• published between 1978 and March 1, 1989 without notice but with subsequent registration
• published between 1964 and 1978 with notice
• published between 1978 and March 1, 1989 with notice
• published after March 1, 1989 with no conditions necessary
So that’s a basic rundown of what public domain is and how to figure out when a work’s copyright expires. In my next entry, I’ll talk about the proponents and opponents and pros and cons of the Copyright Term Extension Act (CTEA).
*COPYRIGHT EXCEPTIONS
Works for hire, works held by corporate entities, works under a pseudonym or published anonymously: term of copyright is 95 years from date of first publication or 120 years from date of creation, whichever comes first.
FOR FURTHER READING
Complete Copyright: An Everyday Guide for Librarians by Carrie Russell. This book is awesome; it explains everything in plain language, has lots of sidebars of information, and it also includes all these anecdotes about a group of librarians and their copyright woes.
The Sonny Bono Copyright Term Extension Act: http://www.copyrightextension.com/page01.html
Tuesday, June 26, 2007
Five to Ten and 100K: Copyright Infringement
My friend Chris asked in an earlier entry’s comments section what sorts of punishments are doled out for copyright infringers. Like all other things copyright-related, charges of infringement are tinged with gray.
In the easiest cases, it’s nearly black and white: a creator who holds a copyright can point to another person who has clearly stolen his work, line for line, and who has passed it off as his own or used it for personal or financial gain. When copyright was in its infancy, this was the only way that a case for infringement could be brought to court: if an exact replica had been made. This overly simplified take was soon outgrown by the burgeoning creative marketplace, and rulings in infringement suits began to lean more heavily on intuition and subjectivity rather than only the letter of the law (which was already somewhat clouded with gray). These cases fall under the term “substantial similarity”—legalese for copying that is not verbatim. Herein begins the mass of swirling gray, because “substantial similarity” is highly subjective.
The majority of copyright infringement cases today regard substantial similarity rather than literal word-for-word copying. Whereas previously Plaintiff Polly could only have a case against Defendant Danny if he reproduced her short story verbatim (or very close to verbatim), Polly may now have a case if she thinks Danny has stolen the plot line or characters from her story.
Wait a minute, you’re saying. I remember that you explained to us from the start that only the expression of ideas is copyrightable, not the ideas themselves. So how can Danny get sued for using the same plot as Polly? Isn’t the plot just an idea? And come to think of it, aren’t there supposed to be only a few dozen plot lines existent in literature anyway? (Meaning that pretty much every writer everywhere ever has infringed.) To all this I say—a perfect example of the glorious ambiguity that is copyright!
Determining someone’s guilt or innocence in an infringement case takes into consideration several factors.
1. KNOWLEDGE. If a defendant had no prior knowledge of the work he infringed (so if Danny never read any of Polly’s stories), then he’s off the hook. Sort of. Of course there’s a loophole: If the plaintiff (Polly) can prove that the defendant (Danny) was exposed to her work, even if he has forgotten it—so, in essence, subconscious knowledge—then she may be able to win her case. So let’s say that one day in the waiting room of his doctor’s office, Danny skimmed through an old issue of the New Yorker looking at snippets of stories without paying much attention to the fact that they were written by Polly. This means that he has subconscious knowledge of Polly’s writing. This loophole strikes me as particularly ridiculous, because how much of what we do, say, and create comes from our subconscious? A hell of a lot, I tend to think. How can someone even prove something like this, I wonder? I’m imagining mind probes or something similarly sinister. Moving on.
2. ORIGINALITY. In other words, is the plaintiff’s work itself validly copyrighted, or did the plaintiff herself infringe on another’s work, knowingly or not? Is Polly a conscious or unconscious/subconscious infringer herself? If the plaintiff herself is found to have infringed in any way, her claim to the copyright of those elements becomes invalid, which means the defendant could possibly be off the hook.
3. PROTECTABILITY. The court must also examine whether the material can be copyrighted or if it cannot—like an idea, a historical fact, and so on. This can often prove to be no easy task. For instance, in Polly’s case, the court would have to determine just how closely Danny’s alleged infringement encroaches on Polly’s work. Are both story plots something commonly found in literature, like a love triangle, or does Polly’s contain a unique twist (say, one of the members of said love triangle is a cockatiel) that Danny’s also contains? Are both main characters the typically tragically flawed hero, or does something unique set them apart? (For instance, both Polly’s and Danny’s protagonists have a speech impediment and a fondness for Gouda, both are orphans, and both solve crimes with the aid of a Pekinese.) If the similarities seem to be more than mere coincidences, then a case for infringement can be made. But if the similarities seem more general and coincidental (both protagonists are named Charles and wear glasses, for instance), then there tends to be less of a case for infringement.
4. SUBJECT. This piggybacks on number 3. The subject matter affects how similar the two works in question are, so courts must examine the intent of each work. When looked at individually, Polly and Danny may have characters or plot lines that are similar when looked at in isolation, but when looked at in the context of the whole piece, differences may be found. (Polly’s story is a serious literary work whereas Danny’s story is a very funny piece poking fun at society.) Courts examine these cases not in an analytical, dissect-every-detail fashion but rather as observers—as consumers of the product. Of course this method works better for creative works than for more technical works such as computer software. But just because only one element of another’s work appear in an otherwise original work doesn’t mean that infringement hasn’t occurred. Danny’s story may only have copied Polly’s bizarre love triangle and nothing else, but the court may still rule it as an infringement. As with everything copyright related, nothing is set in stone.
So let’s say defendant Danny is finally found guilty of copyright infringement. What are the damages? Let’s back up one step first. In order for someone in the U.S. to even sue for copyright infringement, the copyright must be registered, and that registration must be done within three months of first publication or prior to the infringement if the work is unpublished if the person wants to collect statutory damages and legal fees. Even though registration of copyright is no longer required in the U.S., it’s still a good way to cover your bum legally.
The conditions for suing a copyright infringer are:
• the case must be brought in federal court within three years of the infringement;
• the copyright must be registered;
• only the copyright owner(s) can sue.
What does the plaintiff get if the infringer loses the case?
• The actual damages (such as compensation for lost profits, tarnished reputation, and lost business opportunities)
• Any profits the infringer made from the infringed work, if these profits exceed the plaintiff’s lost profits
• Possible reimbursement of court costs and attorney’s fees
If a plaintiff can’t prove the actual damages inflicted by the infringer, statutory damages may be in order. These can be no lower than $200 and no higher than $20,000 for unwillful infringement; willful infringement can fetch as much as $100,000 or higher. Willful infringers can be sent to jail and/or fined in the six-figure range if they are criminally prosecuted, but these tend to occur primarily in cases against pirates, smugglers, and software “Robin Hoods” (arrrgh, walk the plank, ye scurvy knave!). Plaintiffs, whether they receive damages or not, may be able to get injunctive relief that forbids the infringer from infringing further.
I’m sure that some of the infringement cases brought to court are really ludicrous, and I’m actually pretty rattled by the subconscious stipulation. I’m sure that if someone were willing to take things far enough if could be argued that just about everything we create stems from some prior subconscious exposure to it. It seems difficult or even impossible to prove that another person who unknowingly infringed on your work had subconscious prior knowledge of it.
Consider a situation from my own life: my freshman year of college, I wrote a one-act play for a class about a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work. And a few months after my play was written and graded (I got an A, thankyouverymuch), the movie Office Space was released, a movie where the main character is a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work.
I’ve pointed out the similarity between the two to my friends, and I was actually quite proud that I’d managed to beat the curve and write something trendy. But whereas Office Space went on to become a huge cult classic, my play has been seen by perhaps a grand total of twenty-three people (I’m being generous here). So does this mean that if one day my play does happen to become a huge off-Broadway hit that Mike Judge can sue me for infringement, even though I wrote my play and staged it before I was even consciously aware of the existence of Office Space and before it had been released in theaters? Am I an infringer? Did I subconsciously feed off of Mike Judge’s creative vibe and channel it into my own play?
So there you have it. The muddled messes of fair use and copyright infringement. Seems like you’re damned if you do and you’re damned if you don’t. It almost makes me wonder how anyone is brave enough to pick up a pen at all anymore to create anything new. I’ve had similar feelings of apprehension; I had started plotting out a novel and adding in elements when I realized that some of the elements were similar to another novel that I had read about a year prior. I hadn’t been thinking about that particular novel at the time I was writing my own plot line, but as I wrote the plot I was shocked to realize the similarities. Was it my subconscious dredging up the memory of the novel I’d read the previous year? Or was it just such a common plot element that a lot of novelists like to throw it into their plot lines? I was so stunned that I’d seemingly recreated another novelist’s book without even thinking about it that I stopped working on the novel, putting it aside to work on some other time. I haven’t touched it since.
COMING SOON
I’ll be examining some famous infringement cases and offering my insights in a future entry. And I’ll be talking about the tangled web of public domain.
FURTHER READING
The Copyright Book: A Practical Guide (Fifth Edition) by William S. Strong
This book provides excellent advice to all creative types out there in easy-to-understand, legalese-free language.
In the easiest cases, it’s nearly black and white: a creator who holds a copyright can point to another person who has clearly stolen his work, line for line, and who has passed it off as his own or used it for personal or financial gain. When copyright was in its infancy, this was the only way that a case for infringement could be brought to court: if an exact replica had been made. This overly simplified take was soon outgrown by the burgeoning creative marketplace, and rulings in infringement suits began to lean more heavily on intuition and subjectivity rather than only the letter of the law (which was already somewhat clouded with gray). These cases fall under the term “substantial similarity”—legalese for copying that is not verbatim. Herein begins the mass of swirling gray, because “substantial similarity” is highly subjective.
The majority of copyright infringement cases today regard substantial similarity rather than literal word-for-word copying. Whereas previously Plaintiff Polly could only have a case against Defendant Danny if he reproduced her short story verbatim (or very close to verbatim), Polly may now have a case if she thinks Danny has stolen the plot line or characters from her story.
Wait a minute, you’re saying. I remember that you explained to us from the start that only the expression of ideas is copyrightable, not the ideas themselves. So how can Danny get sued for using the same plot as Polly? Isn’t the plot just an idea? And come to think of it, aren’t there supposed to be only a few dozen plot lines existent in literature anyway? (Meaning that pretty much every writer everywhere ever has infringed.) To all this I say—a perfect example of the glorious ambiguity that is copyright!
Determining someone’s guilt or innocence in an infringement case takes into consideration several factors.
1. KNOWLEDGE. If a defendant had no prior knowledge of the work he infringed (so if Danny never read any of Polly’s stories), then he’s off the hook. Sort of. Of course there’s a loophole: If the plaintiff (Polly) can prove that the defendant (Danny) was exposed to her work, even if he has forgotten it—so, in essence, subconscious knowledge—then she may be able to win her case. So let’s say that one day in the waiting room of his doctor’s office, Danny skimmed through an old issue of the New Yorker looking at snippets of stories without paying much attention to the fact that they were written by Polly. This means that he has subconscious knowledge of Polly’s writing. This loophole strikes me as particularly ridiculous, because how much of what we do, say, and create comes from our subconscious? A hell of a lot, I tend to think. How can someone even prove something like this, I wonder? I’m imagining mind probes or something similarly sinister. Moving on.
2. ORIGINALITY. In other words, is the plaintiff’s work itself validly copyrighted, or did the plaintiff herself infringe on another’s work, knowingly or not? Is Polly a conscious or unconscious/subconscious infringer herself? If the plaintiff herself is found to have infringed in any way, her claim to the copyright of those elements becomes invalid, which means the defendant could possibly be off the hook.
3. PROTECTABILITY. The court must also examine whether the material can be copyrighted or if it cannot—like an idea, a historical fact, and so on. This can often prove to be no easy task. For instance, in Polly’s case, the court would have to determine just how closely Danny’s alleged infringement encroaches on Polly’s work. Are both story plots something commonly found in literature, like a love triangle, or does Polly’s contain a unique twist (say, one of the members of said love triangle is a cockatiel) that Danny’s also contains? Are both main characters the typically tragically flawed hero, or does something unique set them apart? (For instance, both Polly’s and Danny’s protagonists have a speech impediment and a fondness for Gouda, both are orphans, and both solve crimes with the aid of a Pekinese.) If the similarities seem to be more than mere coincidences, then a case for infringement can be made. But if the similarities seem more general and coincidental (both protagonists are named Charles and wear glasses, for instance), then there tends to be less of a case for infringement.
4. SUBJECT. This piggybacks on number 3. The subject matter affects how similar the two works in question are, so courts must examine the intent of each work. When looked at individually, Polly and Danny may have characters or plot lines that are similar when looked at in isolation, but when looked at in the context of the whole piece, differences may be found. (Polly’s story is a serious literary work whereas Danny’s story is a very funny piece poking fun at society.) Courts examine these cases not in an analytical, dissect-every-detail fashion but rather as observers—as consumers of the product. Of course this method works better for creative works than for more technical works such as computer software. But just because only one element of another’s work appear in an otherwise original work doesn’t mean that infringement hasn’t occurred. Danny’s story may only have copied Polly’s bizarre love triangle and nothing else, but the court may still rule it as an infringement. As with everything copyright related, nothing is set in stone.
So let’s say defendant Danny is finally found guilty of copyright infringement. What are the damages? Let’s back up one step first. In order for someone in the U.S. to even sue for copyright infringement, the copyright must be registered, and that registration must be done within three months of first publication or prior to the infringement if the work is unpublished if the person wants to collect statutory damages and legal fees. Even though registration of copyright is no longer required in the U.S., it’s still a good way to cover your bum legally.
The conditions for suing a copyright infringer are:
• the case must be brought in federal court within three years of the infringement;
• the copyright must be registered;
• only the copyright owner(s) can sue.
What does the plaintiff get if the infringer loses the case?
• The actual damages (such as compensation for lost profits, tarnished reputation, and lost business opportunities)
• Any profits the infringer made from the infringed work, if these profits exceed the plaintiff’s lost profits
• Possible reimbursement of court costs and attorney’s fees
If a plaintiff can’t prove the actual damages inflicted by the infringer, statutory damages may be in order. These can be no lower than $200 and no higher than $20,000 for unwillful infringement; willful infringement can fetch as much as $100,000 or higher. Willful infringers can be sent to jail and/or fined in the six-figure range if they are criminally prosecuted, but these tend to occur primarily in cases against pirates, smugglers, and software “Robin Hoods” (arrrgh, walk the plank, ye scurvy knave!). Plaintiffs, whether they receive damages or not, may be able to get injunctive relief that forbids the infringer from infringing further.
I’m sure that some of the infringement cases brought to court are really ludicrous, and I’m actually pretty rattled by the subconscious stipulation. I’m sure that if someone were willing to take things far enough if could be argued that just about everything we create stems from some prior subconscious exposure to it. It seems difficult or even impossible to prove that another person who unknowingly infringed on your work had subconscious prior knowledge of it.
Consider a situation from my own life: my freshman year of college, I wrote a one-act play for a class about a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work. And a few months after my play was written and graded (I got an A, thankyouverymuch), the movie Office Space was released, a movie where the main character is a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work.
I’ve pointed out the similarity between the two to my friends, and I was actually quite proud that I’d managed to beat the curve and write something trendy. But whereas Office Space went on to become a huge cult classic, my play has been seen by perhaps a grand total of twenty-three people (I’m being generous here). So does this mean that if one day my play does happen to become a huge off-Broadway hit that Mike Judge can sue me for infringement, even though I wrote my play and staged it before I was even consciously aware of the existence of Office Space and before it had been released in theaters? Am I an infringer? Did I subconsciously feed off of Mike Judge’s creative vibe and channel it into my own play?
So there you have it. The muddled messes of fair use and copyright infringement. Seems like you’re damned if you do and you’re damned if you don’t. It almost makes me wonder how anyone is brave enough to pick up a pen at all anymore to create anything new. I’ve had similar feelings of apprehension; I had started plotting out a novel and adding in elements when I realized that some of the elements were similar to another novel that I had read about a year prior. I hadn’t been thinking about that particular novel at the time I was writing my own plot line, but as I wrote the plot I was shocked to realize the similarities. Was it my subconscious dredging up the memory of the novel I’d read the previous year? Or was it just such a common plot element that a lot of novelists like to throw it into their plot lines? I was so stunned that I’d seemingly recreated another novelist’s book without even thinking about it that I stopped working on the novel, putting it aside to work on some other time. I haven’t touched it since.
COMING SOON
I’ll be examining some famous infringement cases and offering my insights in a future entry. And I’ll be talking about the tangled web of public domain.
FURTHER READING
The Copyright Book: A Practical Guide (Fifth Edition) by William S. Strong
This book provides excellent advice to all creative types out there in easy-to-understand, legalese-free language.
Thursday, June 21, 2007
Another Quick Commercial Interruption...
So, I've finally joined the twenty-first century. I just bought an iPod.
Don't get too excited! It's just a little iPod shuffle. But I needed something to make the gym more bearable, and I figured a tiny, cute, lightweight music player in metallic pink hit the spot.
As I continue with my studies this summer, it's amazing to me just how often I now seem to encounter copyright issues in everyday life. I think I was just never aware of the prevalence of intellectual property. Take for instance my new purchase. In order to use my iPod, I needed to use iTunes and also install some iPod software on my Mac Book. As I prepared to install the software, the following popped up:
"IMPORTANT NOTE: This software may be used to reproduce
materials. It is licensed to you only for reproduction
of non-copyrighted materials, materials in which you
own the copyright, or materials you are authorized or
legally permitted to reproduce. This software may also
be used for remote access to music files for listening
between computers. Remote access of copyrighted music
is only provided for lawful personal use or as
otherwise legally permitted. If you are uncertain
about your right to copy or permit access to any
material you should contact your legal advisor." (from Apple iTunes software legal disclaimer)
First off, that was just the very beginning of a very long document that I actually took the time to scan (okay, I took the time to scan it really quickly, but I did scan it!) Secondly, I thought it was charming that Apple encouraged me to speak with my legal advisor. Let me just dial Raul, Apple, I've got him on speed dial.
Does anyone ever actually read those legal disclaimers? I know that we should, but who has the time? Who actually understands most of what they say? I know that their purpose is to protect Apple should any sort of legal action come to light, and I have to admit that this blurb at the beginning of their long statement is written in plain enough English that most people should be able to understand it. I can also understand the importance of such a statement in a post-Napster world. In essence, Apple is shifting the responsibility for your actions onto you entirely. They acknowledge that they created a product that's used for copying, but they're not going to dictate how you use, they're just going to say how you should use it. It's like they're selling you a car, and they're saying, we know you will drive this car, but it's not up to us to determine how well you will drive the car. Here are the keys. Peace out, homeslice.
This reverts back to the personal copying that I discussed in the previous entry. It's not really legal, but it's not technically illegal either. Apple is acknowledging this. They're sure that most people aren't going to cause any problems, but in case any do, they've covered their bums.
But this also leads me to think about all the times I've installed software or otherwise quickly clicked through a licensing agreement without really paying attention to it. Was I wrong in doing so? Should I be more personally responsible and take the time to fully understand what I'm doing? Does anyone actually read those long-ass licensing agreements? Do companies intentionally make these things long-winded and vague, or do their lawyers just not know any better? At least Apple made an effort. Should other companies follow their lead and perhaps try writing a summary of the most important information in easy-to-understand language before the long-winded disclaimer?
While my project tends to focus more on copyright issues pertaining to publishing, I do find it useful to bring up examples from time to time of copyright in the real world. In what other places do you find copyright notices? What do they really seem to say? Do any of you read them? What do you think of them? Can you think of a better system for informing users?
Don't get too excited! It's just a little iPod shuffle. But I needed something to make the gym more bearable, and I figured a tiny, cute, lightweight music player in metallic pink hit the spot.
As I continue with my studies this summer, it's amazing to me just how often I now seem to encounter copyright issues in everyday life. I think I was just never aware of the prevalence of intellectual property. Take for instance my new purchase. In order to use my iPod, I needed to use iTunes and also install some iPod software on my Mac Book. As I prepared to install the software, the following popped up:
"IMPORTANT NOTE: This software may be used to reproduce
materials. It is licensed to you only for reproduction
of non-copyrighted materials, materials in which you
own the copyright, or materials you are authorized or
legally permitted to reproduce. This software may also
be used for remote access to music files for listening
between computers. Remote access of copyrighted music
is only provided for lawful personal use or as
otherwise legally permitted. If you are uncertain
about your right to copy or permit access to any
material you should contact your legal advisor." (from Apple iTunes software legal disclaimer)
First off, that was just the very beginning of a very long document that I actually took the time to scan (okay, I took the time to scan it really quickly, but I did scan it!) Secondly, I thought it was charming that Apple encouraged me to speak with my legal advisor. Let me just dial Raul, Apple, I've got him on speed dial.
Does anyone ever actually read those legal disclaimers? I know that we should, but who has the time? Who actually understands most of what they say? I know that their purpose is to protect Apple should any sort of legal action come to light, and I have to admit that this blurb at the beginning of their long statement is written in plain enough English that most people should be able to understand it. I can also understand the importance of such a statement in a post-Napster world. In essence, Apple is shifting the responsibility for your actions onto you entirely. They acknowledge that they created a product that's used for copying, but they're not going to dictate how you use, they're just going to say how you should use it. It's like they're selling you a car, and they're saying, we know you will drive this car, but it's not up to us to determine how well you will drive the car. Here are the keys. Peace out, homeslice.
This reverts back to the personal copying that I discussed in the previous entry. It's not really legal, but it's not technically illegal either. Apple is acknowledging this. They're sure that most people aren't going to cause any problems, but in case any do, they've covered their bums.
But this also leads me to think about all the times I've installed software or otherwise quickly clicked through a licensing agreement without really paying attention to it. Was I wrong in doing so? Should I be more personally responsible and take the time to fully understand what I'm doing? Does anyone actually read those long-ass licensing agreements? Do companies intentionally make these things long-winded and vague, or do their lawyers just not know any better? At least Apple made an effort. Should other companies follow their lead and perhaps try writing a summary of the most important information in easy-to-understand language before the long-winded disclaimer?
While my project tends to focus more on copyright issues pertaining to publishing, I do find it useful to bring up examples from time to time of copyright in the real world. In what other places do you find copyright notices? What do they really seem to say? Do any of you read them? What do you think of them? Can you think of a better system for informing users?
Photocopies: Are You Breaking the Law?
I’ve talked about photocopies made by libraries and schools that are protected (somewhat) by the garbled guidelines of fair use. But what about copies made by copy shops? Should the copy shop employees be responsible for making sure that permissions have been obtained for the materials they’re copying?
Due to the fact that copy shops (such as Kinko’s) had gotten into trouble for copyright infringements in the past, the Copyright Clearance Center was established. Founded in 1978, it’s a nonprofit organization that makes the process of using copyrighted materials easier by offering consumers permissions to use the materials for a fee. So consumers can pay to use copyrighted materials that were submitted to the center, and the creators of the copyrighted works get compensated (this is a simplified summary of how it works). I’m sure it’s not flawless but it seems like a fair enough system that allows both parties to get what they want. (Or at least to get some of what they want.)
And what, dear reader, about copies that you yourself make? On your VCR at home or by surreptitiously using the copier at work while you should be filing, or even at the library? Are you a copyright infringer when you make copies of things without first getting permission?
Yes and no. No one’s really sure. Some people claim that if you’re making the copies for personal use—say, taping a show to watch when you get home from work or photocopying a favorite poem to hang up for inspiration in your cubicle—that this use is fair. You’re not trying to benefit from the copy you’ve made; you’re just trying to enhance your life.
But Congress and the courts have been wary to label these personal uses of copyrighted materials as fair uses—in essence they’ve avoided saying anything at all. This means that there are no fair use guidelines for personal copying, which further means that every time you make a copy of copyrighted materials for personal use, you are infringing upon that copyright.
[points and calls you INFRINGER!]
But of course, no one really gets in trouble for making personal copies. Even though it’s technically an infringement, copyright holders don’t rise up en masse and come after these people because it’s generally not doing them much harm. And they generally don’t even know it’s going on in the first place. Since we’re thankfully not yet living in the era of Big Brother, citizens can pretty much do/copy as they wish in the privacy of their homes. Copyright law tends to emphasize the fact that copies made for public consumption without permission are illegal and an infringement, but Congress has stayed basically mum on creating guidelines governing fair use for personal copying. So what does that mean? Is in fact then legal? Should we abide by a don’t ask, don’t tell policy as we do with many other things?
My belief is that personal copying really isn’t hurting anyone if it’s kept strictly personal—that is, putting the new album you bought on iTunes on your iPod, not making 20 copies of it for all your friends. I read an interesting viewpoint on copyright by Paul Goldstein, the author of “Copyright’s Highway,” that really helped me come to this conclusion. In it he talked about how intellectual property differs from regular property in its very sort of “metaphysical” state. Physical property is often diminished in some way when it is used: crayons wear down as we color with them, playground equipment breaks down when we play on it, a box of cookies disappears (sadly) as we eat them. The value of these things thus diminishes. But the value of an intellectual property item does not diminish as it’s used. In contrast, its value often increases the more it’s used. The pages of a book might come loose or a record might get scratched, but the contents—the story, the songs—retain their value. So each time a piece of intellectual property is used by a new consumer, the value of its content remains the same, or, one could even argue, increases as it is shared with others.
This segues nicely into the concept of public domain and the sharing of information in an increasingly smaller world, so that’s where we’ll pick up next time. Brace yourself: It's a doozy!
FURTHER READING
For information on the Copyright Clearinghouse Center: www.copyright.com
Due to the fact that copy shops (such as Kinko’s) had gotten into trouble for copyright infringements in the past, the Copyright Clearance Center was established. Founded in 1978, it’s a nonprofit organization that makes the process of using copyrighted materials easier by offering consumers permissions to use the materials for a fee. So consumers can pay to use copyrighted materials that were submitted to the center, and the creators of the copyrighted works get compensated (this is a simplified summary of how it works). I’m sure it’s not flawless but it seems like a fair enough system that allows both parties to get what they want. (Or at least to get some of what they want.)
And what, dear reader, about copies that you yourself make? On your VCR at home or by surreptitiously using the copier at work while you should be filing, or even at the library? Are you a copyright infringer when you make copies of things without first getting permission?
Yes and no. No one’s really sure. Some people claim that if you’re making the copies for personal use—say, taping a show to watch when you get home from work or photocopying a favorite poem to hang up for inspiration in your cubicle—that this use is fair. You’re not trying to benefit from the copy you’ve made; you’re just trying to enhance your life.
But Congress and the courts have been wary to label these personal uses of copyrighted materials as fair uses—in essence they’ve avoided saying anything at all. This means that there are no fair use guidelines for personal copying, which further means that every time you make a copy of copyrighted materials for personal use, you are infringing upon that copyright.
[points and calls you INFRINGER!]
But of course, no one really gets in trouble for making personal copies. Even though it’s technically an infringement, copyright holders don’t rise up en masse and come after these people because it’s generally not doing them much harm. And they generally don’t even know it’s going on in the first place. Since we’re thankfully not yet living in the era of Big Brother, citizens can pretty much do/copy as they wish in the privacy of their homes. Copyright law tends to emphasize the fact that copies made for public consumption without permission are illegal and an infringement, but Congress has stayed basically mum on creating guidelines governing fair use for personal copying. So what does that mean? Is in fact then legal? Should we abide by a don’t ask, don’t tell policy as we do with many other things?
My belief is that personal copying really isn’t hurting anyone if it’s kept strictly personal—that is, putting the new album you bought on iTunes on your iPod, not making 20 copies of it for all your friends. I read an interesting viewpoint on copyright by Paul Goldstein, the author of “Copyright’s Highway,” that really helped me come to this conclusion. In it he talked about how intellectual property differs from regular property in its very sort of “metaphysical” state. Physical property is often diminished in some way when it is used: crayons wear down as we color with them, playground equipment breaks down when we play on it, a box of cookies disappears (sadly) as we eat them. The value of these things thus diminishes. But the value of an intellectual property item does not diminish as it’s used. In contrast, its value often increases the more it’s used. The pages of a book might come loose or a record might get scratched, but the contents—the story, the songs—retain their value. So each time a piece of intellectual property is used by a new consumer, the value of its content remains the same, or, one could even argue, increases as it is shared with others.
This segues nicely into the concept of public domain and the sharing of information in an increasingly smaller world, so that’s where we’ll pick up next time. Brace yourself: It's a doozy!
FURTHER READING
For information on the Copyright Clearinghouse Center: www.copyright.com
Monday, June 18, 2007
Fair Use, or, How Xerox Changed Everything
So. Up until this point, what I've been learning has pretty much emphasized the fact that material protected by copyright is just that--protected from unauthorized copying. But what happens as technologies evolve and make the copying of protected materials increasingly easier?
Photocopying was like the shot heard 'round the copyrighted world. The rise of the Xerox photocopier in prominence as an office must-have (starting in the 1960s) made it extremely easy for anyone to create copies of documents and other photocopiables at whim, due to the fact that now entirely new plates didn't have to be made any time someone wanted to print something. Office workers must have thrown crumpled balls of carbon paper jubilantly in celebration, but publishers were probably more uneasy. Didn't this rise in new technology mean bad times on the horizon?
Not really. What it did mean was a reexamination of copyright law and the kinds of instances where it was permissable for an entity to create copies without asking permission or compensating the owner--fair use.
Let's pause here and say that the whole concept of copyright has some nebulous qualities about it. If you really think about it, the fact that you are protecting the expression of an idea can make your brain start to warp a little. But add fair use into the mix and you've got a fairly twisted mind implosion. There are no brightly drawn dilineating lines when it comes to fair use. It is the grayest of gray areas.
What is it, exactly? Fair use is a tenet of copyright law that allows for copies to be sans permission or compensation while following a set of guidelines. Fair use is allowed in certain contexts--for instance, educational purposes, research purposes, business, personal use, and such. There are certain criteria which must be met and followed for the use of copyrighted materials to be considered fair use and not copyright infringement (which is illegal).
An interesting case that brought the issue of fair use in libraries to the forefront (with "forefront" here meaning, "Hey, Congress, you should probably maybe eventually take a look at this and mull it over and perhaps make some changes, eh?") was the case in the late 1960s of Williams and Wilkins (a publisher) versus the National Library of Medicine and the National Institutes of Health. To summarize: The NIH had subscriptions to a great quantity of research journals and made photocopies of these available to researchers and doctors, but they didn't get permissions before making and sending off these copies. Most of the journals, published by nonprofits, didn't seem to give a hoot that this was happening. But Williams and Wilkins, a for-profit publisher whose journal articles were being copied without seeking permission, gave many hoots. They argued that the NIH's free distribution of these articles would undercut their already relatively limited subscriber base. The NIH countered that it was essential that the articles contained within all their journals, including the Williams and Wilkins journals they subscribed to, be made available upon request by researchers. Giving the information when it was requested, they said, was part of fulfilling their mission. "We get that," said Williams and Wilkins. "We just want a little compensation. How about a paltry fee paid to us for using our articles?" The NIH said: NO. Other libraries backed them up
The case ended in the NIH's favor, which made libraries everywhere happy. When the Copyright Act was up for revision in 1976, libraries lobbied for exemptions to allow photocopying sans exemptions. What they got instead was section 108 of the Copyright Act of 1976. This somewhat garbled section allowed libraries some fair use photocopying. This included making copies to replace or preserve documents or copies made for researchers when the original can't be provided, as in the case of interlibrary loans. Photocopiers in libraries also had to display signs warning patrons about copyright law. (Come to think of it, the photocopier at my office also has such a warning on it, which I suppose is the college covering its bum in case anything were ever to happen bordering on infringement, but considering that we just use the machine to copy office documents, the sign seems like overkill.)
I could get much more in-depth with this, but I want to focus now on another case that raised some red flags in my head: photocopies made for the classroom. Surely you've received photocopied articles or literary passages from your professors (or have made them), or you may even have received one of those "course packets"--you know, the stack of photocopies bound with a plastic spiral binding that inevitably gets snagged in the sleeve of your sweater. Anyway. These all constitute photocopies made for the classroom, for educational purposes. And all these photocopies have presumably been made because the teacher or professor first secured permission from the copyright holders and compensated them fairly. Right?
In theory, that's what's supposed to happen. But who exactly should be responsible for making sure that these permissions have been secured: should it be the responsibility of the individual professor to ensure that this happens, or does the responsibility ultimately fall upon the school? Guidelines were drawn up for fair use in the classroom (with the classroom being a nonprofit setting), which were, as all government guidelines tend to be, muddled. These copies had to meet a brevity requirement (word count), a spontaneity requirement (a piece not being used over and over), and a cumulative effect requirement, which is so muddled I'm not sure if I understand it. (According to Samuels in "Illustrated History" [see reading list below]: "generally no more than nine instances of multiple copying per course per term, with further limits on the number of works by any particular author" [26]. To which I say, HUH?) Seriously, you need an additional Ph.D. just to understand all these guidelines. What's a professor to do? Hem and haw and try to figure out in which instances he needs permissions, or just photocopy the passages from his portable Nietzche and hope that no one catches him and cares?
In a case brought against NYU in the early 1980s regarding fair use in educational settings, the very matter came up as to whose responsibility it was to ensure that educational fair use guidelines were being followed: professors or the professors' institution of employ. And in a blow to educators, it was decided that the university had to tell professors to either follow the guidelines or get the necessary permissions. The university would provide the professors with legal guidance as to whether the copying they wanted to do was kosher or not. But basically, the university played Pontius Pilate, washing its hands, ultimately, of responsibility and thrusting it instead upon individual professors.
Upon learning about this case, I felt this telltale surging in my gut that happens whenever I have uncovered a case of "that's so not fair." As someone who fervently loves education and who deeply respects and admires educators (mostly because I'd never want their jobs myself), I couldn't believe that an institution that is made upon the labors of these educators was willing to throw them to the wolves in terms of fair use. An educational institution is only as good as its faculty, but if the institution isn't willing to get behind its faculty and support them, how are we supposed to interpret that?
Not to mention the fact that this laissez faire on the part of the universities could seriously impact the quality of education of their students. I can remember many times receiving some sort of photocopied document from teachers and professors that contained knowledge I wouldn't have gotten otherwise--the book was out of print, there were too many different short story collections we would have had to buy to get such variety, the magazine was difficult to procure. These professors shared these materials with us in order to better us, to teach us and give us knowledge. They had no deviant ulterior motive. They had no desire to fleece the publisher and author. They just wanted to share ideas with us. And to know that these people could have been punished and potentially not supported by the institution that hired them just makes me really upset. It seems truly unethical. With all the other things professors have to worry about, obtaining permissions is yet another burden to add to overloaded plates. Not to mention the fact that many times the materials professors hand out copies of are timely. Were the professor to wait and obtain permission to photocopy and give us students this article on a news item, it would hardly be newsworthy by the time we got the copies.
So while I've only very briefly gone over the nebulous fair use guidelines, the most important thing to know is that they tend to raise as many questions as they try to answer. And I feel that all the nit-picky worrying over potential copyright infringement could make the sharing of information more difficult, thus putting a clamp on learning. What do you all think? Is it a good idea to allow educational institutions and libraries fair use guidelines? Should they not be exempt at all and have to pay for permission to use works? Or should fair use be even more generous so that ideas and knowledge can be exchanged even more easily? What about the NYU case? Have any educators had to worry about fair use violation? Has it stopped any of you from using materials in the classroom that would have been of great benefit to your students? Any thoughts you have on fair use are welcome.
FOR FURTHER READING:
All things copyright, plus fun pictures and anecdotes: The Illustrated Story of Copyright by Edward Samuels
More sordid details on the Williams and Wilkins case: Copyright's Highway by Paul Goldstein
Legalese on fair use: http://www.title17.com/contentLegMat/legmat.html
Association of Research Libraries' copyright timeline, with lots of interesting links throughout: http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml
NEXT TIME: So we've covered some instances of fair use of copyrighted materials in places like libraries and schools. But what about you, Mr. or Ms. Private Citizen, sitting at home taping shows off the TV or photocopying your favorite poems on the office copier? Are you an infringer? Or is your bum covered too? Stay tuned.
COMING SOON: What's public domain? How have changes to copyright law affected public domain? And why should you care?
Photocopying was like the shot heard 'round the copyrighted world. The rise of the Xerox photocopier in prominence as an office must-have (starting in the 1960s) made it extremely easy for anyone to create copies of documents and other photocopiables at whim, due to the fact that now entirely new plates didn't have to be made any time someone wanted to print something. Office workers must have thrown crumpled balls of carbon paper jubilantly in celebration, but publishers were probably more uneasy. Didn't this rise in new technology mean bad times on the horizon?
Not really. What it did mean was a reexamination of copyright law and the kinds of instances where it was permissable for an entity to create copies without asking permission or compensating the owner--fair use.
Let's pause here and say that the whole concept of copyright has some nebulous qualities about it. If you really think about it, the fact that you are protecting the expression of an idea can make your brain start to warp a little. But add fair use into the mix and you've got a fairly twisted mind implosion. There are no brightly drawn dilineating lines when it comes to fair use. It is the grayest of gray areas.
What is it, exactly? Fair use is a tenet of copyright law that allows for copies to be sans permission or compensation while following a set of guidelines. Fair use is allowed in certain contexts--for instance, educational purposes, research purposes, business, personal use, and such. There are certain criteria which must be met and followed for the use of copyrighted materials to be considered fair use and not copyright infringement (which is illegal).
An interesting case that brought the issue of fair use in libraries to the forefront (with "forefront" here meaning, "Hey, Congress, you should probably maybe eventually take a look at this and mull it over and perhaps make some changes, eh?") was the case in the late 1960s of Williams and Wilkins (a publisher) versus the National Library of Medicine and the National Institutes of Health. To summarize: The NIH had subscriptions to a great quantity of research journals and made photocopies of these available to researchers and doctors, but they didn't get permissions before making and sending off these copies. Most of the journals, published by nonprofits, didn't seem to give a hoot that this was happening. But Williams and Wilkins, a for-profit publisher whose journal articles were being copied without seeking permission, gave many hoots. They argued that the NIH's free distribution of these articles would undercut their already relatively limited subscriber base. The NIH countered that it was essential that the articles contained within all their journals, including the Williams and Wilkins journals they subscribed to, be made available upon request by researchers. Giving the information when it was requested, they said, was part of fulfilling their mission. "We get that," said Williams and Wilkins. "We just want a little compensation. How about a paltry fee paid to us for using our articles?" The NIH said: NO. Other libraries backed them up
The case ended in the NIH's favor, which made libraries everywhere happy. When the Copyright Act was up for revision in 1976, libraries lobbied for exemptions to allow photocopying sans exemptions. What they got instead was section 108 of the Copyright Act of 1976. This somewhat garbled section allowed libraries some fair use photocopying. This included making copies to replace or preserve documents or copies made for researchers when the original can't be provided, as in the case of interlibrary loans. Photocopiers in libraries also had to display signs warning patrons about copyright law. (Come to think of it, the photocopier at my office also has such a warning on it, which I suppose is the college covering its bum in case anything were ever to happen bordering on infringement, but considering that we just use the machine to copy office documents, the sign seems like overkill.)
I could get much more in-depth with this, but I want to focus now on another case that raised some red flags in my head: photocopies made for the classroom. Surely you've received photocopied articles or literary passages from your professors (or have made them), or you may even have received one of those "course packets"--you know, the stack of photocopies bound with a plastic spiral binding that inevitably gets snagged in the sleeve of your sweater. Anyway. These all constitute photocopies made for the classroom, for educational purposes. And all these photocopies have presumably been made because the teacher or professor first secured permission from the copyright holders and compensated them fairly. Right?
In theory, that's what's supposed to happen. But who exactly should be responsible for making sure that these permissions have been secured: should it be the responsibility of the individual professor to ensure that this happens, or does the responsibility ultimately fall upon the school? Guidelines were drawn up for fair use in the classroom (with the classroom being a nonprofit setting), which were, as all government guidelines tend to be, muddled. These copies had to meet a brevity requirement (word count), a spontaneity requirement (a piece not being used over and over), and a cumulative effect requirement, which is so muddled I'm not sure if I understand it. (According to Samuels in "Illustrated History" [see reading list below]: "generally no more than nine instances of multiple copying per course per term, with further limits on the number of works by any particular author" [26]. To which I say, HUH?) Seriously, you need an additional Ph.D. just to understand all these guidelines. What's a professor to do? Hem and haw and try to figure out in which instances he needs permissions, or just photocopy the passages from his portable Nietzche and hope that no one catches him and cares?
In a case brought against NYU in the early 1980s regarding fair use in educational settings, the very matter came up as to whose responsibility it was to ensure that educational fair use guidelines were being followed: professors or the professors' institution of employ. And in a blow to educators, it was decided that the university had to tell professors to either follow the guidelines or get the necessary permissions. The university would provide the professors with legal guidance as to whether the copying they wanted to do was kosher or not. But basically, the university played Pontius Pilate, washing its hands, ultimately, of responsibility and thrusting it instead upon individual professors.
Upon learning about this case, I felt this telltale surging in my gut that happens whenever I have uncovered a case of "that's so not fair." As someone who fervently loves education and who deeply respects and admires educators (mostly because I'd never want their jobs myself), I couldn't believe that an institution that is made upon the labors of these educators was willing to throw them to the wolves in terms of fair use. An educational institution is only as good as its faculty, but if the institution isn't willing to get behind its faculty and support them, how are we supposed to interpret that?
Not to mention the fact that this laissez faire on the part of the universities could seriously impact the quality of education of their students. I can remember many times receiving some sort of photocopied document from teachers and professors that contained knowledge I wouldn't have gotten otherwise--the book was out of print, there were too many different short story collections we would have had to buy to get such variety, the magazine was difficult to procure. These professors shared these materials with us in order to better us, to teach us and give us knowledge. They had no deviant ulterior motive. They had no desire to fleece the publisher and author. They just wanted to share ideas with us. And to know that these people could have been punished and potentially not supported by the institution that hired them just makes me really upset. It seems truly unethical. With all the other things professors have to worry about, obtaining permissions is yet another burden to add to overloaded plates. Not to mention the fact that many times the materials professors hand out copies of are timely. Were the professor to wait and obtain permission to photocopy and give us students this article on a news item, it would hardly be newsworthy by the time we got the copies.
So while I've only very briefly gone over the nebulous fair use guidelines, the most important thing to know is that they tend to raise as many questions as they try to answer. And I feel that all the nit-picky worrying over potential copyright infringement could make the sharing of information more difficult, thus putting a clamp on learning. What do you all think? Is it a good idea to allow educational institutions and libraries fair use guidelines? Should they not be exempt at all and have to pay for permission to use works? Or should fair use be even more generous so that ideas and knowledge can be exchanged even more easily? What about the NYU case? Have any educators had to worry about fair use violation? Has it stopped any of you from using materials in the classroom that would have been of great benefit to your students? Any thoughts you have on fair use are welcome.
FOR FURTHER READING:
All things copyright, plus fun pictures and anecdotes: The Illustrated Story of Copyright by Edward Samuels
More sordid details on the Williams and Wilkins case: Copyright's Highway by Paul Goldstein
Legalese on fair use: http://www.title17.com/contentLegMat/legmat.html
Association of Research Libraries' copyright timeline, with lots of interesting links throughout: http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml
NEXT TIME: So we've covered some instances of fair use of copyrighted materials in places like libraries and schools. But what about you, Mr. or Ms. Private Citizen, sitting at home taping shows off the TV or photocopying your favorite poems on the office copier? Are you an infringer? Or is your bum covered too? Stay tuned.
COMING SOON: What's public domain? How have changes to copyright law affected public domain? And why should you care?
Wednesday, June 13, 2007
The Stuff I'm Studying, In the Flesh!
Last night I was having dinner with one of my new roommates, who is completing her fifth year in the chemistry PhD program at MIT (!). We talked for a while about what she does each day in the lab, and then she started asking me questions about the Emerson publishing program. Of course I got excited, because I love talking about publishing, and I told her how much of a crazy hit-or-miss kind of industry publishing is. Then she asked me a question that actually relates to some of the things I'll be studying more in-depth later this semester.
Her parents live in Switzerland and she asked, "Why is it that some books seem to come out sooner in other countries, or that the paperbacks come out sooner in other countries?"
I was then able to explain to her a little bit about subsidiary (sub) rights and how the sale of these rights impacts when books are published in what country. For instance, My Great Novel may be published by Pidal Press in the U.S. in hardback, but the rights have also been sold for it to be published in English and in paperback in France. (Of course there's more to this subject but I'd like to delve into it more deeply as I learn more about it later this summer.)
She had no idea that the whole sale of rights in publishing was such a huge thing, and she seemed genuinely interested. It served to further validate what I'm studying and it also made me think that yes, people who aren't involved in publishing are interested in this stuff too, because they genuinely have no idea what goes on behind the closed doors of the publishing industry. (Not that I know a ton more than they do, having not yet worked in the "pub biz" [as my old coworker used to call it] myself, but I'm just going by what my professors are telling me.)
So there you have it. Relevance! Interest in my studies by someone who is not studying anything remotely related to it! Validation! Fun anecdote! Call it what you will, but it was really cool to talk about the stuff I'm studying outside of the classroom. I just wanted to share/brag about that in here. Longer post on fair use coming soon.
Her parents live in Switzerland and she asked, "Why is it that some books seem to come out sooner in other countries, or that the paperbacks come out sooner in other countries?"
I was then able to explain to her a little bit about subsidiary (sub) rights and how the sale of these rights impacts when books are published in what country. For instance, My Great Novel may be published by Pidal Press in the U.S. in hardback, but the rights have also been sold for it to be published in English and in paperback in France. (Of course there's more to this subject but I'd like to delve into it more deeply as I learn more about it later this summer.)
She had no idea that the whole sale of rights in publishing was such a huge thing, and she seemed genuinely interested. It served to further validate what I'm studying and it also made me think that yes, people who aren't involved in publishing are interested in this stuff too, because they genuinely have no idea what goes on behind the closed doors of the publishing industry. (Not that I know a ton more than they do, having not yet worked in the "pub biz" [as my old coworker used to call it] myself, but I'm just going by what my professors are telling me.)
So there you have it. Relevance! Interest in my studies by someone who is not studying anything remotely related to it! Validation! Fun anecdote! Call it what you will, but it was really cool to talk about the stuff I'm studying outside of the classroom. I just wanted to share/brag about that in here. Longer post on fair use coming soon.
Tuesday, June 12, 2007
It's History: The Last Segment on International Copyright History
It seems like the story of international copyright never ends, but I swear that it does, and I swear that this will be my last entry devoted to the topic. (Really!)
Fast-forward (or rewind, depends on what point of view you're looking at it from) to America in 1976. Not only were we celebrating 200 years of existence, but the U.S. Copyright Act was also being revised, for two main reasons. One, the development of new technologies impacted copyrighted materials because of the fact that duplication of copyrighted materials was becoming easier than ever, and this led to confusion over what could be copyrighted and what constituted infringement. And two, the act needed to be revised in anticipation of the U.S. joining the Berne Convention.
That's right, folks. Pick those jaws up off the floor. The U.S. finally decided to join Berne (or, in 1976, at least to think about joining Berne in the near-ish future--good enough). So we revised away. The terms of protection were extended to life of the author plus 50 years and copyright protection was extended to unpublished works. Fair use guidelines were also established for copies made for educational purposes (there'll be more on fair use coming up in a near-future entry). After the '76 revision, the U.S. wanted other countries to be more stringent in protecting their copyrighted exports (especially technological exports, since it was the time when computers and software were starting to boom). Other countries gave us the "As if!" After all, we still weren't members of Berne, so even though we complained that other countries were too lax, we ourselves didn't even meet Berne's stricter standards.
So in 1988, over 100 years after its inception, the U.S. finally joined the Berne Convention through Congress's passing of the Berne Implementation Act. As part of this, the U.S. did away with the formalities involving copyright, such as notice and registration. These were no longer required in order for a work to be protected by copyright. But even though there was much fanfare when the U.S. revised the Copyright Act in '76, when it finally joined Berne the press was relatively quiet. Perhaps the U.S. was trying to keep things mum in order to NOT dissuade people from still registering for copyright (though now it was voluntary)? But even though it was now not required for people to register for copyright, there were still advantages, such as the ability to recover attorney's fees and statutory damages in the case of infringement.
So that, in a nutshell, is the story of the history of copyright here and in our interaction with other countries. Of course, more stuff has happened since then, but a lot of it I feel will fit better in other sections of discussion on this blog, so I'll hold off for now. I never really knew just how convoluted the history of copyright in America was, especially in this country's dealings with other countries. While the U.S. may have seemed like a sour grape by not wanting to join Berne earlier and being stingy with protection for foreign authors, it hasn't all been negative. The U.S. did emphasize the importance of protecting works and new technologies (and protecting works from new technologies) early on, before other countries saw the importance of this. And while I wish that the U.S. and other countries in the world could have happily gotten along in a hold-hands-and-sing-Kumbaya kind of way from the get-go, there's something to be said for the U.S. sticking to its guns and not allowing other countries to influence it and its decisions. While I don't 100% agree with everything the U.S. did during the course of copyright history, I do admire the fact that from the start, this nation recognized the importance of protecting the intellectual property of its citizens.
Juicier topics will soon follow, like fair use and public domain. This is going to start getting really interesting... I promise!
Fast-forward (or rewind, depends on what point of view you're looking at it from) to America in 1976. Not only were we celebrating 200 years of existence, but the U.S. Copyright Act was also being revised, for two main reasons. One, the development of new technologies impacted copyrighted materials because of the fact that duplication of copyrighted materials was becoming easier than ever, and this led to confusion over what could be copyrighted and what constituted infringement. And two, the act needed to be revised in anticipation of the U.S. joining the Berne Convention.
That's right, folks. Pick those jaws up off the floor. The U.S. finally decided to join Berne (or, in 1976, at least to think about joining Berne in the near-ish future--good enough). So we revised away. The terms of protection were extended to life of the author plus 50 years and copyright protection was extended to unpublished works. Fair use guidelines were also established for copies made for educational purposes (there'll be more on fair use coming up in a near-future entry). After the '76 revision, the U.S. wanted other countries to be more stringent in protecting their copyrighted exports (especially technological exports, since it was the time when computers and software were starting to boom). Other countries gave us the "As if!" After all, we still weren't members of Berne, so even though we complained that other countries were too lax, we ourselves didn't even meet Berne's stricter standards.
So in 1988, over 100 years after its inception, the U.S. finally joined the Berne Convention through Congress's passing of the Berne Implementation Act. As part of this, the U.S. did away with the formalities involving copyright, such as notice and registration. These were no longer required in order for a work to be protected by copyright. But even though there was much fanfare when the U.S. revised the Copyright Act in '76, when it finally joined Berne the press was relatively quiet. Perhaps the U.S. was trying to keep things mum in order to NOT dissuade people from still registering for copyright (though now it was voluntary)? But even though it was now not required for people to register for copyright, there were still advantages, such as the ability to recover attorney's fees and statutory damages in the case of infringement.
So that, in a nutshell, is the story of the history of copyright here and in our interaction with other countries. Of course, more stuff has happened since then, but a lot of it I feel will fit better in other sections of discussion on this blog, so I'll hold off for now. I never really knew just how convoluted the history of copyright in America was, especially in this country's dealings with other countries. While the U.S. may have seemed like a sour grape by not wanting to join Berne earlier and being stingy with protection for foreign authors, it hasn't all been negative. The U.S. did emphasize the importance of protecting works and new technologies (and protecting works from new technologies) early on, before other countries saw the importance of this. And while I wish that the U.S. and other countries in the world could have happily gotten along in a hold-hands-and-sing-Kumbaya kind of way from the get-go, there's something to be said for the U.S. sticking to its guns and not allowing other countries to influence it and its decisions. While I don't 100% agree with everything the U.S. did during the course of copyright history, I do admire the fact that from the start, this nation recognized the importance of protecting the intellectual property of its citizens.
Juicier topics will soon follow, like fair use and public domain. This is going to start getting really interesting... I promise!
Sunday, June 10, 2007
International Copyright: The Saga Continues
Picking up in 1891: 101 years after first adopting federal copyright protection, the United States finally passed an ammendment protecting foreign authors. But, as history (and the previous entry) proves, the U.S. wasn't going to give up without a fight. Or without being somewhat sneaky about things. The protection afforded to foreign authors by this U.S. ammendment involved some smoke and mirrors. For instance, foreign authors could keep their rights but foreign publishers had none. And foreign authors had to follow all sorts of strict conventions, such as registering and depositing copies of their works in the U.S. on or before their date of publication anywhere else in the world. Also, foreign authors' works had to be printed from type that was set in the U.S. The firm restrictions were eventually relaxed somewhat, though they were still far more strict than anything followed by Berne countries.
Meanwhile, Americans discoverd a "back door" into Berne that allowed them to reap the benefits of publishing in foreign countries without having to actually comply by what was set forth by Berne: if a work was first published in a Berne country simultaneously, it would be protected in all Berne countries even if the author wasn't a Berne author. This meant that many American authors were simultaneously publishing their books in Berne countries like Canada or England. This pissed off the Berne countries so they created a protocol that allowed its members to decide if they would deny protection to authors whose native countries didn't provide adequate protection to foreign authors.
At this point, the term "cat fight" is coming to prominence in my mind...
All this back and forth does indeed seem catty, especially when we can see that the majority of the rest of the world was cheerily humming along under the happy umbrella of Berne. Why was the United States so resistant to foreign protection? Because American publishers were reaping huge benefits from the sale of foreign books--books that they weren't paying foreign authors to use.
But by midway through the twentieth century, things absolutely needed to change. The tumultuous first half of the century (war, depression, more war) meant that the tussle over copyright was shelved in favor of other things. But after the United States emerged victorious from World War II not only as a world superpower but also as a huge exporter of entertainment, the need for a less isolated (perhaps even sobbish?) stance on foreign copyright was necessary. The United States still wasn't interested in Berne, whose countries by this point had added "moral rights" that allowed authors to prevent mutilation of their works and whose authors were protected for life plus 50 years (U.S. term was a max of 56 years), so it decided, "If you can't beat 'em, create something that'll placate 'em." Here the Universal Copyright Convention (UCC) was born.
Despite being negotiated under the brand new United Nations Educational, Scientific, and Cultural Organization (UNESCO), the UCC was really created for the U.S. It was the only country that really needed to get itself straightened out in terms of foreign copyright because the rest of the world happily held hands under Berne. By 1955, the UCC went into effect, protecting the United States through a lower level of protection. A minimal protection time period of 25 years was established, so the U.S. was covered with its twenty-eight-year first term of protection. The UCC also got rid of the manufacturing stipulations and the need for a formal registration of copyright. Now all that was needed was for the author to indicate his or her name and the year of publication next to the copyright symbol of a "c" enclosed in a circle.
The fact that the United States had finally caved in, in its own unique way, was enough for the other Berne countries, and authors from other countries started using the UCC copyright notice on their works. This went on for 33 years, until even more changes. (Stay tuned for more on that in the next entry.)
I think one of the things that amazes me so much about the United States' unwillingness to play nice with basically the rest of the world on the copyright issue up until this point is the fact that freedom of speech was purportedly of such great value in the U.S. Free expression and freedom of the press were encouraged and in fact protected since the very infancy of the country. So why then did the same country make it so difficult for authors from other countries (who were freely expressing themselves) to have some level of protection from being taken advantage of? Was it an "our way or the highway" mentality? Did the U.S. feel threatened? Was the U.S. just being greedy and allowing publishers to swindle foreign authors for as long as possible?
Meanwhile, Americans discoverd a "back door" into Berne that allowed them to reap the benefits of publishing in foreign countries without having to actually comply by what was set forth by Berne: if a work was first published in a Berne country simultaneously, it would be protected in all Berne countries even if the author wasn't a Berne author. This meant that many American authors were simultaneously publishing their books in Berne countries like Canada or England. This pissed off the Berne countries so they created a protocol that allowed its members to decide if they would deny protection to authors whose native countries didn't provide adequate protection to foreign authors.
At this point, the term "cat fight" is coming to prominence in my mind...
All this back and forth does indeed seem catty, especially when we can see that the majority of the rest of the world was cheerily humming along under the happy umbrella of Berne. Why was the United States so resistant to foreign protection? Because American publishers were reaping huge benefits from the sale of foreign books--books that they weren't paying foreign authors to use.
But by midway through the twentieth century, things absolutely needed to change. The tumultuous first half of the century (war, depression, more war) meant that the tussle over copyright was shelved in favor of other things. But after the United States emerged victorious from World War II not only as a world superpower but also as a huge exporter of entertainment, the need for a less isolated (perhaps even sobbish?) stance on foreign copyright was necessary. The United States still wasn't interested in Berne, whose countries by this point had added "moral rights" that allowed authors to prevent mutilation of their works and whose authors were protected for life plus 50 years (U.S. term was a max of 56 years), so it decided, "If you can't beat 'em, create something that'll placate 'em." Here the Universal Copyright Convention (UCC) was born.
Despite being negotiated under the brand new United Nations Educational, Scientific, and Cultural Organization (UNESCO), the UCC was really created for the U.S. It was the only country that really needed to get itself straightened out in terms of foreign copyright because the rest of the world happily held hands under Berne. By 1955, the UCC went into effect, protecting the United States through a lower level of protection. A minimal protection time period of 25 years was established, so the U.S. was covered with its twenty-eight-year first term of protection. The UCC also got rid of the manufacturing stipulations and the need for a formal registration of copyright. Now all that was needed was for the author to indicate his or her name and the year of publication next to the copyright symbol of a "c" enclosed in a circle.
The fact that the United States had finally caved in, in its own unique way, was enough for the other Berne countries, and authors from other countries started using the UCC copyright notice on their works. This went on for 33 years, until even more changes. (Stay tuned for more on that in the next entry.)
I think one of the things that amazes me so much about the United States' unwillingness to play nice with basically the rest of the world on the copyright issue up until this point is the fact that freedom of speech was purportedly of such great value in the U.S. Free expression and freedom of the press were encouraged and in fact protected since the very infancy of the country. So why then did the same country make it so difficult for authors from other countries (who were freely expressing themselves) to have some level of protection from being taken advantage of? Was it an "our way or the highway" mentality? Did the U.S. feel threatened? Was the U.S. just being greedy and allowing publishers to swindle foreign authors for as long as possible?
Thursday, June 7, 2007
International Copyright, Part 1: America versus England, or, Mo' Money, Mo' Problems
So the brand-new United States took the time to protect its authors by creating copyright laws right from the get-go, using laws that were based on those being used in other countries such as England. But even though the U.S. was eager to borrow heavily from England's laws, it wasn't in any hurry to share content fairly. In fact, the United States has often been a rather does-not-play-well-with-others player in the game of international copyright.
For the first 101 years of American copyright law's existence (1790-1891), the act only protected American authors. There was no thought given to foreign authors, but this wasn't a rarity as many other countries also hadn't bothered with protection for foreign authors. In the 18th century, there were very few American authors who could produce books, so the majority of books in America came from other countries. This situation didn't last for long though; by mid-nineteenth century, the list of notable American authors was growing (think: all the "dead white men" with three names you had to read in your literature survey courses), and America was now a contender in the international literary marketplace.
"Hmmm," thought the British, "those rapscallions across the ocean who thumbed their noses at us and were cocky enough to think they could start a country all on their own... the writers over there aren't half-bad."
And while the British were noticing the American authors, they were also noticing the impunity with which American publishers printed books. Sure, they were printing the books of all their Thoreaus and Emersons. But they were also printing works by foreign authors, mostly those of British authors, without securing copyrights and without really caring what the end product was like. This pissed the British off and led them, in 1837, to submit to Congress a petition demanding that foreign authors be protected in the U.S., citing the fact that the "reputation and property" of British authors were being harmed by the uncopyrighted publication of their works in the U.S. The American publication of foreign works was also hurting American authors, the British petition went on to say, because the uncopyrighted foreign works were much cheaper for American publishers to produce than copyrighted domestic works. This meant that an American browsing for a new book to read would be more inclined to pick up a cheap novel by a British author rather than shelling out more for a pricier American novel. Couldn't America see that granting copyright protection to foreign authors would benefit everyone?
It couldn't. So the following year, England took matters into its own hands and began the process of protecting foreign authors by passing the International Copyright Acts. These acts only worked in a reciprocal fashion, however, so while other countries were happily playing along with England, America was still giving it the cold shoulder. It was also keeping its copyright laws basically the same as they had been since their inception.
During these times, authors who were particularly clever were attempting to simultaneously publish their works in both America and England, though this could prove to be tricky because the authors needed to be able to travel from England to America, or vice versa, and reside there at the time that the book was published. Not a particularly easy or effective means of securing international copyright, especially when one considers that in those days travel was, to put it quite frankly, a bitch.
In 1878 a group of authors, artists, academics, and publishers formed the Association Litteraire et Artistique Internationale, an organization that drafted what would would later (1886) become the Berne Union for the Protection of Literary and Artistic Works. This was an international copyright treaty where participating countries would follow the golden rule: treating others (foreign authors) as they (domestic authors) would like to be treated. England signed on. Many countries in Europe signed on. Other countries signed on. The United States did not. Oh, they sent someone along to the proceedings to scope out the scene, but then Congress decided that they had to first think about how America would protect foreign works (if at all). Way to play nice with others, U.S.
The story of international copyright doesn't end there, and I'll pick up on what happened after 1891 in the next entry. But I just have to pause and briefly reflect on things up to this point. The fact that many countries came together and unanimously decided that they should protect the work of authors regardless of their country of origin gives me a warm, fuzzy-ish feeling. The fact that the United States decided to peace out of the Berne Union initially gives me a headache. Why wouldn't this young country willingly join in this mutually beneficial agreement with other countries? Was it trying to prove itself as being independent? Was it unsure of itself? Was it just an example of Congress being its usual ridiculous self? Or was the American publishing industry just to happy raking in the profits? This is something I'd like to explore further, but it certainly bears thinking about.
For the first 101 years of American copyright law's existence (1790-1891), the act only protected American authors. There was no thought given to foreign authors, but this wasn't a rarity as many other countries also hadn't bothered with protection for foreign authors. In the 18th century, there were very few American authors who could produce books, so the majority of books in America came from other countries. This situation didn't last for long though; by mid-nineteenth century, the list of notable American authors was growing (think: all the "dead white men" with three names you had to read in your literature survey courses), and America was now a contender in the international literary marketplace.
"Hmmm," thought the British, "those rapscallions across the ocean who thumbed their noses at us and were cocky enough to think they could start a country all on their own... the writers over there aren't half-bad."
And while the British were noticing the American authors, they were also noticing the impunity with which American publishers printed books. Sure, they were printing the books of all their Thoreaus and Emersons. But they were also printing works by foreign authors, mostly those of British authors, without securing copyrights and without really caring what the end product was like. This pissed the British off and led them, in 1837, to submit to Congress a petition demanding that foreign authors be protected in the U.S., citing the fact that the "reputation and property" of British authors were being harmed by the uncopyrighted publication of their works in the U.S. The American publication of foreign works was also hurting American authors, the British petition went on to say, because the uncopyrighted foreign works were much cheaper for American publishers to produce than copyrighted domestic works. This meant that an American browsing for a new book to read would be more inclined to pick up a cheap novel by a British author rather than shelling out more for a pricier American novel. Couldn't America see that granting copyright protection to foreign authors would benefit everyone?
It couldn't. So the following year, England took matters into its own hands and began the process of protecting foreign authors by passing the International Copyright Acts. These acts only worked in a reciprocal fashion, however, so while other countries were happily playing along with England, America was still giving it the cold shoulder. It was also keeping its copyright laws basically the same as they had been since their inception.
During these times, authors who were particularly clever were attempting to simultaneously publish their works in both America and England, though this could prove to be tricky because the authors needed to be able to travel from England to America, or vice versa, and reside there at the time that the book was published. Not a particularly easy or effective means of securing international copyright, especially when one considers that in those days travel was, to put it quite frankly, a bitch.
In 1878 a group of authors, artists, academics, and publishers formed the Association Litteraire et Artistique Internationale, an organization that drafted what would would later (1886) become the Berne Union for the Protection of Literary and Artistic Works. This was an international copyright treaty where participating countries would follow the golden rule: treating others (foreign authors) as they (domestic authors) would like to be treated. England signed on. Many countries in Europe signed on. Other countries signed on. The United States did not. Oh, they sent someone along to the proceedings to scope out the scene, but then Congress decided that they had to first think about how America would protect foreign works (if at all). Way to play nice with others, U.S.
The story of international copyright doesn't end there, and I'll pick up on what happened after 1891 in the next entry. But I just have to pause and briefly reflect on things up to this point. The fact that many countries came together and unanimously decided that they should protect the work of authors regardless of their country of origin gives me a warm, fuzzy-ish feeling. The fact that the United States decided to peace out of the Berne Union initially gives me a headache. Why wouldn't this young country willingly join in this mutually beneficial agreement with other countries? Was it trying to prove itself as being independent? Was it unsure of itself? Was it just an example of Congress being its usual ridiculous self? Or was the American publishing industry just to happy raking in the profits? This is something I'd like to explore further, but it certainly bears thinking about.
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