Copyright

[wolfinthewood]

I became a copyright geek ten years ago when I edited a poetry anthology.* It was part of the requirements of the job at the time, but I found copyright law fairly interesting.

Recently I have been noting signs that some authors are starting to get restless about the frequent breaches of their copyrights on the web.

In October Ursula K. Le Guin took issue publicly with Cory Doctorow when he posted a short spoof by her on the site boingboing without asking her permission. Her complaint is here, his less than full apology is here, and the spoof (which is great fun) is still on her website here.

Notwithstanding what Cory Doctorow says in his apology, he is legally entirely in the wrong and she is in the right. Under US law ‘fair use’ cannot be stretched to cover the unlicensed reprint of an entire short work: even a very very short work.** (The same is true of the equivalent concept in UK copyright law, ‘fair dealing’.)

Meanwhile, some of the snide comments that were made about Le Guin in blogs around that time struck me as pretty disturbing. She has not been in any way unreasonable. She is just a writer keeping careful hold of her rights in her own creation.

On Saturday the English poet Wendy Cope sounded off in the Guardian about people who post her poems on the web without permission. Once again, she is legally in the right. One of the tests of ‘fair use’ (or ‘fair dealing’) is whether the unauthorised reproduction of a copyright text damages its market value. If Wendy Cope's poems are all over the web for free, she is much less likely to be paid money by an anthologist or a magazine editor (say) for licences to reprint any of them. Wendy Cope is a freelance writer. Licence fees are a bread-and-butter matter as far as she is concerned.

For quite a while now I have been expecting to hear that someone out there was starting to track textual copyright violations on the web using a dedicated program, with the aim of extracting licence fees from the (usually well-meaning and unaware) violators. Technically, it seemed such an obvious move. So I wasn’t surprised in September to read about Attributor, a company that is doing exactly that. If they get their business fully established, at some point there are going to be a lot of rather upset people digging into their pockets or going to court.

Both as a writer and a reader I am not really happy about that idea. It will inevitably stir up antagonisms and suspicions between readers and writers that mostly aren’t there at the present. At the same time, I do think there are a lot of readers who need to educate themselves better on the legal principles, and grasp the fact that writers have property in the work they create.

***

There is still another species of property, which, being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, and many others, to be founded on the personal labour of the occupant. And this is the right, which an author may be supposed to have in his own original literary compositions: so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property. Now the identity of a literary composition consists intirely in the sentiment and the language; the same conceptions, cloathed in the same words, must necessarily be the same composition: and whatever method be taken of conveying that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies or at any period of time, it is always the identical work of the author which is so conveyed; and no other man can have a right to convey or transfer it without his consent, either tacitly or expressly given.

William Blackstone (1723–1780)

from Commentaries on the Laws of England (Book II, 1766)


*Love Shook My Senses. Lesbian Love Poems (The Women’s Press, 1998).

I recently exercised my contractual right as editor to buy and dispose of some remainder copies (I really didn’t want them to be pulped): enquire using this form here for the cheapest mint copies available (£5 including p&p within the UK; a bit more than that to send overseas, depending on destination).

**There is a good statement of the US law on fair use here.

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Comments

[april-art.livejournal.com]

Thank you for posting on copyright. It's an important issue. Unfortunately, there are a lot of misconceptions and erroneous beliefs held by the general public.

[wolfinthewood.livejournal.com]

I think a lot of the trouble hinges around the word 'fair' - many people haven't grasped that it doesn't mean what seems more or less fair and reasonable to them. They think, 'I can't see the harm, so it must be fair use.'

As an artist, you presumably have your own concerns over copyright, and how well-meaning enthusiasts can cause problems with unlicensed reproductions.

[readwrite.livejournal.com]

I don't want to go into it all, though Corey's post goes into it a bit, but this particular situation needs to be seen in the context of the larger, um, disagreeement within SFWA over Andrew Burt's actions, which are detailed on various boingboing.net posts and also here:

http://nielsenhayden.com/makinglight/archives/009662.html#009662

I have to deal with copyright issues all the time when I'm copy editing books. I don't make the decisions; but I do have to single out certain things that may not be fair use, and let the lawyers figure them out.

What is and isn't fair use is sometimes open to argument. Maybe not in this case--but it's governed by civil, not criminal law, so it's ultimately decided by judges, or by, "Well, that probably is fair use, but I don't want to mess with the Disney Company, so I'll delete it anyway," or "We're a big corporation, so let's just use it, and let the little punk sue us if he's perturbed."

In Le Guin's case, here we have a short piece that she's posted on her Website, so that anyone can copy it and read it for free, and she's perturbed that someone else has copied it. Now, this actually could deprive her of income if she had blogger ads (and she is certainly in a position to do, though there are no ads on her site). These ads generate income for the blogger based on the number of page views and/or clicks on the ads. Someone else posting her material could, one could argue, deprive her of web-based income by directly competing with her post in Google ranking and page views. Fewer page views = fewer clicks.

Nievertheless, I think it's a bit of a tempest in a teapot in this case. The whole controversy probably generated far more views of the material. The whole issue of copyright in the digital age is in its Wild West phase right now, with intensely differing opinions. One thing is for certain: Corey, and others who are more or less on his side, such as John Scalzi and Charles Stross, have been very savvy about using the Web to market their writing and make money they otherwise wouldn't have. I think it is better to try to learn from them, because they are probably the wave of the future.

[wolfinthewood.livejournal.com]

Yes, I read about the SFWA furore when it happened. I thought Andrew Burt a) was plainly out of order b) demonstrated a pretty fair degree of ignorance both of copyright law and web technology c) scored an amazingly stupid own goal on the score of marketing and publicity.

I think you are right that Corey Doctorow is pretty shrewd when it comes to web marketing. For that kind of reason, I would have hoped for a better grasp of copyright law on his part.

"We're a big corporation, so let's just use it, and let the little punk sue us if he's perturbed."

I have come up against that attitude a couple of times myself. Both times my agent has screwed a useful sum of money out of the offenders.