ELECTRONIC PUBLISHING AND COPYRIGHT

Will They Ever Converge?

By: Wendy Burnett

SILS 603 Image Databases

October 18, 1995


Online is the future - So why aren't the publishers there yet? Although technology is in place for publishers to exploit, it will remain unused until the legal issues surrounding copyright are decided. With the internet growing at approximately a rate of one million new users per month publishers are not going to be able to hold off much longer.

The publishing industry is based on the integrity of any work created and/or published and the willingness of the public to pay for such works. The publisher plays an integral role in the creation of a work - through editing, quality control and assurance, design, production, distribution, marketing and promotion. The role of the publisher in the digital age will certainly include many of these aspects with some changes and additions that will evolve.

It seems that the publisher has an opportunity to take on an even larger role in the electronic publishing of works than they did previously. For example, with the use of electronic publishing technologies it is possible to give people easier access to background and related work of the author, and via hyperlinking the potentially overwhelming amounts of information on the internet. Publishers have for some time understood the vast amounts of information available on the internet and the possibility for confusion and the spotty quality control, this should enable them to understand how to design, produce, distribute, market, quality control and promote their works better than other industries.

A second advantage of electronic publishing to publishers is that they can create a much more individualized product for their customers. Because of the nature of electronic works it is much easier to tailor a product for a specific person, group, or organization. One can imagine a publisher putting out a book on 'How to Start Your Own Business', which might be a very generic book. Now suppose that the publisher does some market research and finds that there is a large group of people who want to start a company on electronic publishing, the publisher would then be able to quickly put out a new edition with specific examples for starting an electronic publishing company. This would not have been able to be done previously as quickly or as easily as is with the electronic format. There are many advantages of the electronic format to publishers, which I believe are well understood and accepted. However, many of the benefits have been outweighed by the confusion surrounding the issue of copyright in the digital realm.

Copyright law gives authors, composers, creators and others who create works of expression certain rights over their creation. Once a work is created it immediately becomes the property of the author who created it, whether published or unpublished. If a work is created while under hire then the copyright is held by the employer. The owner of copyright has exclusive rights to do and to authorize others to: reproduce the copyrighted work, prepare derivative works, distribute copies, to perform the copyrighted work publicly, and to display the copyrighted work publicly.

Copyright law holds up quite well for more traditional works, such as books, movies, and music. However, when we start talking about the ones and zeros of computer language copyright law is inadequate. "Copyright is incompatible with the natural way of using a computer network. The law was designed for the printing press, and it fits that well. But the main advantage of digital information is to make it easy to copy and exchange information." (Zaghary, B5) It does seem that a key reason we have all grown to love computers is because of the ease with which we are able to instantly copy and exchange information and to infringe on this may not be appropriate.

Without changing the copyright law we would not be able to insure whether or not information is legitimate. However, by changing copyright law so the integrity of publishers and authors works will be protected allows for one to know the authenticity of a work. This is currently a problem with the World Wide Web (WWW) because there is no way to know whether the information presented is legitimate or not. By allowing publishers in the digital world to be protected they would be able to lend credence to a digital work in the same way they do to a printed work. This is an important point for everyone involved in both the uses and creation of digital work because without the assurance of legitimacy on the internet both legitimate and non-legitimate works credibility will continue to suffer.

"To build an electronic publishing industry - to raise the capital for it - you must be able to recapture the payments and profits for the commercial use of the work." (Zaghary, B5). This is fundamental to the publishing industry because the publishers are taking the risk on a work and need to be able to recover the costs associated with that risk. No one is sure just how this will work in the digital realm because of the ease with which anyone can reproduce and distribute a work. There needs to be some assurance for the publisher that they are the ones making the profit on a work. This is understandable considering the risk a publisher is taking. Publishers will need to determine a way in which they can recover costs and still work within the constraints of the electronic format.

The Information Infrastructure Task Force is trying to propose a plan to deal with copyright in the electronic age. They are proposing that "consumers won't be allowed to disarm technical schemes aimed at insuring that only those who pay for an item like an electronic book actually get to read it" and "that recipients of electronically distributed information can no longer do with it what they wish." (Zachary, B5) This seems to go against the inherent value of a computer to bar it from copying and distributing information. By taking away the computers ability to copy and distribute seems to be turning it back into the printing medium. The print world works quite well and is well understood and I do not think that we need to replicate it by using computers. Rather I think that publishers and copyright lawyers should come up with a system that allows them to exploit the advantages of the digital world. I do agree that this goes against the publishing industries current practices, but I believe that there is a large reward for those who do understand and exploit the digital format.

The government is trying to insure that "existing property rights will carry over into the new technology." (Zaghary, B5) Critics of this proposal are arguing that the committee "wants to unfairly restrict people from privately borrowing and lending digital works." (Woo, B5) The trouble is that the computer automatically makes copies of a work. "Current copyright law makes it illegal for you to make a page-by-page photocopy of your friend's paperback," (Woo, B5) but if you sent that same book to them in email you are effectively doing the same thing. This is currently what many are doing - when you find something interesting on the internet and then forward it on to your friend - should this be copyright infringement? The primary use of the digital world is to do just this and it seems that being able to quickly get and receive information is important and can not be wholly taken away by any proposed copyright law.

There are many proposals that are being thrown out to deal with the problem of anyone being able to copy and distribute digital information. The Home Recording Rights Coalition of Washington D.C. says "people should be allowed to email works to a friend as long as the original copy is promptly deleted, leaving only one copy in circulation." (Woo, B5) What if you wanted to send it to two or more of your friends? This is a feasible possibility as currently when you find something interesting you will want to show it to more than one person. Another problem raised by this proposal is how do we insure that people will discard the work once they send it to another person?

This brings up the issue of morals and ethics. Since there is no feasible way to insure that copyright law such as the above proposal will be followed we need to trust people to follow a social contract in order to create a working system. Moral rights have been dismissed under US copyright law, but are still a vital part of European law. Under US law it is not easy to legislate moral rights. However, in some ways we have accomplished this. For example, with current copyright law one is not allowed to photocopy a work unless they receive permission from the copyright owner. To enforce this would be very difficult, unless someone were to report you. However, people generally follow this, which you could argue is a moral or ethical decision on the part of the person who decides not to photocopy a work. It seems that the same kind of moral restraint can be called upon in the digital world. These moral rights will also become important in trade with the European community, where moral rights are important.

Another possibility that has been raised to insure the authenticity of a work is through the use of technology. Digital watermarks are thought to be the hottest new technology to "bind authorship to electronic works." (Caruso, D5) Watermarks have worked for years as a proof of authenticity in both documents and currency, and now some cable channels and networks "have been stamping their programs with a video version of the watermark." (Caruso, D5) Caruso makes a good point that "even if authors and publishers choose not to collect a dime for what they put on disk or distribute over a network, there will still be a need to verify the authorship of digital works - if only to give credit where it is due and to protect the creator from plagiarism." (Caruso, D5) Although this will not prevent copying of works it will enable the author to be relatively sure that their authorship is bound to their digital work. The technology behind digital watermarking is to lock the watermark in a file that can not be removed without permanent damage to the work itself. The way this technology works is it "scatters identifying information in such a way that it cannot be reassembled without an electronic key to the code." (Caruso, D5)

The idea of a watermark or unique identifier to a work that can not be removed, except by the author or publisher themselves, is a first step towards digital rights protection. I believe that this is an extremely important technology to the electronic publishing industry because of the threat of plagiarism. This technology would certainly reduce the possibility of plagiarism if not eliminate it. This is important to publishers from the standpoint of authenticity, but does not directly lead to a way for publishers to regain their monetary risk. Although, the assumption that people will want to insure that they have an authentic/original work may lead to publishers sales.

Because of the uncertainty of electronic rights publishers and authors are attempting to resolve the issue on their own because the legal field has not resolved copyright issues. "To avoid future shocks, publishers and authors are fighting for electronic rights." (Lyall, D6) The future of the electronic frontier is unclear right now, but both publishers and authors want to be in the best position to exploit the future. Traditional contracts between author and publisher have been straightforward, they define the publication and subsidiary rights with some discussion of money. In the past authors have held on to movie, television, and usually audio rights. This is all changing quickly in the digital age of electronic publishing. "On many old contracts, a vague clause - usually referring to 'mechanical reproduction rights' - allowed publishers to retain the rights for any unforeseen future media." (Lyall, D6) This is an ambiguous clause and is causing much confusion as to who holds the electronic rights. Publishers believe that they can distribute electronic material as well as books and therefore should hold the rights to the electronic format or at least have the first option.

The Association of Authors' Representatives offer several suggestions to agents, such as "the author should at least retain the right to approve the licensing of electronic rights by the publisher, and that the author should keep multimedia rights." (Lyall, D6) The Association also believes that contracts will have to be renegotiated down the road when the new technologies and electronic publishing are better understood. Because of the uncertainty of the future of electronic publishing and the technologies that enable it everyone wants to protect themselves. No one has come out as the clear leader in electronic publishing and until that happens no one will feel secure giving up their rights.

"A lot of publishers have taken a nonnegotiable position that multimedia versions using existing technology, or even future technology, belong to them." (Cox, B9) The Authors Guild, which represents writers, does not agree with this position. They specifically disagree with the "broad interpretation of electronic rights include" and the "royalty rate which the Guild feels is unfairly low." (Cox, B9) Royalty rates for standard print based works is 10% of the proceeds, however publishers are currently contracting royalty rates of 5% for electronic products. Authors view this as unfair and believe that they should at least be getting the same royalty rates as in print based contracts.

The National Writers Union (NWU) put together their recommendations for contracts covering online book publishing. The NWU put these guidelines together because of the changes they believe are needed with the advent of electronic networks. First the NWU distinguishes between two different types of publisher they see arising in electronic publishing. The first is effectively a new type of distributor, who uses the "online networks as distribution channels for simple text versions of books." (National Writers Union, 1) In this case the publisher is not adding much value to the work the way a typical publisher would. The second type of electronic publisher is one that does add value to the work. In this case the publisher would "employ editors, designers, and others to add original multimedia elements and insert links to connect the reader to digital content outside the work." (NWU, 1) Both types of publishers can be valuable for different works, but they do not deserve the same rights and profit.

The NWU recommendations cover six areas they feel are important to lay out to protect the writers in electronic publishing. The six areas they cover are: copyright, grant of rights, creative control, royalties, availability and promotion, and termination. As far as copyright they believe that authors should retain copyright in electronic format. However, if a publisher adds hypertext and multimedia links the publisher should retain those rights. Grant of rights should only be given to distribute the work in the electronic medium. They also state that rights should be granted for a specific period of time because of the uncertain future. Creative control should be left in the hands of the author, as is done in the print medium. The NWU also believes that royalty rates should be higher in electronic publishing, because of the lower costs to publish online. They state that "the division of income between the author and the online company should depend on how much value the latter is adding to the product." (NWU, 2) For availability and promotion it is stated that authors should "insist on contract provisions that detail, to the extent possible, the ways in which the online publisher is going to make potential readers aware of the existence of the work and the ways in which they are provided access." (NWU, 3) Online contracts, the same as print contracts, should terminate rights if the publisher "fails to publish the book within a reasonable amount of time, fails to pay royalties, or allows the work to go out of print." (NWU, 3) These contract issues are vital to the success of the electronic publishing industry and if these issues are not cleared up soon - someone will beat the publishers to the electronic network.

The technology is in place for a revolution to take place in the publishing industry. However, without the legal issues of copyright in place we are not going to see the explosion of publishers on the net. Both publishers and authors need protection from digital copying and distribution to preserve the authenticity of their work. I think that we are on our way to solving the issues involved in electronic publishing, but our legal system needs to catch up quickly. Publishers are trying new and inventive ways to compensate for the lack of copyright law, but need legal backing to go all the way. Electronic copyright is a complex issue that publishers and authors alike would like solved.


BIBLIOGRAPHY OF RESOURCES

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