Archives for category: Copyright

Publishing Perspectives has a piece on the new European Directive on Copyright in the Digital Single Market covering the use of copyright material online, and so does The Guardian (and doubtless Uncle Tom Cobley and All — so count me in). Wikipedia has a very full account of the whole business.

I suppose we should rejoice that the EU has introduced such regulation, giving member states a couple of years to provide legislation of their own to carry out the intention — if only because all the big tech companies appear to be strongly against it! The intention is to protect the earning ability of copyright owners by regulating the unreimbursed use of copyrighted material online. However, I wonder if this law, although targeted at the big fish, will end up applying to minnows like this one. It does seek to prohibit uploading copyright material without permission, which is probably exactly what I’m doing with the three links in paragraph one. No doubt nobody will notice even if what I am doing is wrong. But if a European government did object, I don’t see how I could prevent someone in Europe accessing this post, and I can’t see The Guardian being happy fielding regular requests from me for permission to quote.

The two “problem” clauses are Article 11 (now in the redraft actually Article 15) “sometimes called the ‘link tax,’ which will require companies such as Google to hold licenses for linking to publishers. Article 13 (now #17) meanwhile requires that Internet companies such as Reddit police their platforms for any copyright infringement uploaded to them, filtering out any offending content.” I guess I’m keeping fingers crossed that nobody is going to think Making Book is a company, and especially a company like Google or Reddit! Nevertheless there does appear to be room for concern: Cory Doctorow has written in a piece linked to in the Publishing Perspectives article “Worse, the final draft of Article 11 has no exceptions to protect small and noncommercial services, including Wikipedia but also your personal blog.” I dare say the intention of the law is not to penalize the personal blog, but laws have ways of spreading out form their original intent. The Directive does contain exemptions for “legitimate private and non-commercial use of press publications by individual users”. Let us hope that individual nations will make note of such exemptions when the directive is finalized by being passed into law in all member countries over the next two years.

This Wired video, created before the final vote, goes some way to explaining things.

If you don’t see a video here, please click on the title of this post in order to view it in your browser.

There are definite earning and usage limits to which companies are covered by the law, but these may not be sufficient on their own to make your blog exempt.

“The protection provided through fair dealing legislation” (from Hugh Stevens Blog) is what I end up relying on, though I have to admit that that phrase sounds a lot better than the vague reality of an almost offhand clause in U.S. Copyright law.  But any claim that Making Book is all about education, criticism, review, parody, or any other transformative technique is surely rather dubious. In the end I tend to console myself with the thought that Making Book is not about making money, indeed does not make any money and has no mechanisms for doing so. I tell myself the ultimate fallback is that if any copyright owner comes after me I’ll just apologize and take down the “offending” piece. Whether this is an adequate legal response I doubt, but fingers crossed. Keith Houston at Shady Characters is a bit more thorough than me, but his is a more formal, business-like blog.

I’m not sure what to think of a court decision that embedding a Tweet can amount to copyright infringement. I’m not even sure what exactly constitutes embedding a Tweet, though I suspect I’ve done it on occasion. I’ll certainly not be including any pictures of Tom Brady, even if his working for a Boston team didn’t already preclude any such thing. I do bear in the back of my mind the need not to include recognizable representations of people in any of my photos I may be using. I know professionals spend time tracking down such individuals and getting their permission. Much of the concern around copyright and the web has to do with the big guys and the content aggregators, sites which (may) make money by copying and pasting or simply linking to content produced by others: the trouble is the cure may affect others too. Let’s hope not.

See also That’s not fair on the subject of fair use.

You occasionally see the author’s moral right being asserted on the imprints page of a book in English. This is something which happens more with British books than with their US editions. For example I’m sitting looking at both the UK paperback and the US paperback of Julian Barnes’ The Sense of an Ending (don’t ask!) — the UK version tells us on the copyright page, that “Julian Barnes has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as the author of this work”. The US edition, described as the international edition, doesn’t mess about with any of that stuff. I have another book from a Penguin imprint which just says “The moral right of the authors has been asserted”, which isn’t giving much away. No doubt that Act says you’ve got to say something, without exactly specifying what. Oxford University Press, in a book originating in Britain, Jeremy Mynott’s Birds in the Ancient World, goes a tiny bit further by saying “The moral rights of the author have been asserted”. The reasons for differences in approach are buried in the different developmental histories of legal systems based upon common law as opposed to civil law. This legal concern with moral issues, which originated in 16th century France, was no doubt a factor in the decision of some Leave voters: they didn’t like Brussels telling them to do anything, even if it was the right thing.

When the USA signed up for the Berne Convention in 1989 it took on the obligation to protect an author’s moral rights. U.S. Copyright law tends to regard such matters as adequately protected by other laws, though some states have indeed introduced different sorts of moral right laws. According to the Register of Copyrights (the Director of the U.S. Copyright Office) “the term ‘moral rights’ generally refers to certain non-economic rights that are considered personal to an author. Central to the idea of moral rights is the idea that a creative work, such as a song or book, actually expresses the personality of the author”.

The most basic moral rights are the right to be identified as the author (the right of attribution), and the right to prevent prejudicial distortion of the copyrighted work (the right of integrity). Additional moral rights include

  • the right of withdrawal, or droit de repentir, which allows authors to retract works from public circulation that they feel no longer represent them or their views;
  • the right of divulgation, through which an author can control the public disclosure of their work, and which supports the economic right of first publication;
  • the right of the author to have access to the original copy of a work in order to “exercise his author’s rights”;
  • the right to prevent others from associating one’s work with an undesirable “product, service, cause or institution”;
  • the right to pseudonymity or anonymity; and
  • the right of an author to compel the completion of a commissioned work of art.

The Passive Voice, powered by a lawyer, has given us a pretty thorough piece on Moral Rights. As he comments, if you read this piece you will know more about moral rights than 99.99% of the authors in the United States.

It is probably not going too far to suggest that this appeal to a moral right by the French and their neighbors is just the sort of thing we crass Anglo-Saxons like to leave to the workings of the market, or to property rights. More narrowly we could say it is the sort of thing that happens in civil law regimes rather than common law systems. We continue to muddle through.

See also Le droit d’auteur.

I’m not really sure what I think about this scandal, word of which, now that Nora Roberts has become involved, has started to hit our in-boxes. Of course I think copyright should be defended, but . . .

The Digital Reader gives us a good round-up of the facts. Brazilian “author” Cristiane Serruya has apparently been gaily selling 95 (and counting) books which are largely plagiarized. Ms Serruya is described as a “bestselling” writer, but I’ve not managed to discover what that means in terms of books sold and money made. The books she is accused of plagiarizing are listed at Caffeinated Fae. Many authors are frustrated; Ms Serruya has blamed lazy ghostwriters in her employ; and now Ms Roberts is suing.

There is a section of the book-buying public which really goes in for volume. These voracious readers chomp their way through 10 or more ebooks a week, mainly genre fiction like romance. The arrival of self publishing with its low prices has been a god-send to these insatiable customers. I wouldn’t be surprised if whatever it is these readers are seeking when they devour a book may be provided just as well by rereading the same stuff under a different title as reading something for the first time. I don’t know enough about the nature of romance writing, but I suspect that there are in any case a limited number of plots, changes on which are regularly rung. Readers are presumably seeking something beyond pure originality. Ms Serruya is providing a service for nympholectors, and maybe that’s OK. Of course Nora Roberts would like to get paid for her writing, but the truly voracious have probably bought her books already, and remain blissfully ignorant of any repetition in a book by Ms Serruya!

Richard Hershberger writes about this category of super-reader at his 2-part post at Ordinary Times saying “My final anecdatum is from Reading the Romance, a classic sociological study of romance readers by Janice Radway, first published in 1984. Her research included a survey of romance readers’ reading habits. The sheer volume of, um…, volumes is impressive. Over half reported reading between one and four romances a week, and more than a third between five and nine a week. Four readers claimed between fifteen and twenty-five. This seems implausible, and Radway is skeptical, but that isn’t the point. Neither are the absolute numbers, lest we get bogged down in discussions of self-reporting, small sample size, and sample selection. What comes through is that there is a body of readers for whom the word ‘voracious’ exists. These are people whose primary leisure activity is reading, and they read a lot.”

Whether Amazon should be required to stamp out hyper-commercial activity like Ms Serruya’s, as The Digital Reader suggests, seems a bit dubious to me. I’m not sure that there’s any requirement on a regular bookstore to guarantee that every book they stock is clear of plagiarism and any other illegality. Just because we can imagine some sort of AI plagiarism-detection program that could suss out duplication doesn’t mean that we have to build and deploy it. The present situation seems perfectly adequate: a law suit is the way to go. Yes, not all the affected authors can afford to bring a law suit, but then their “losses” are presumably also smaller. And, cynically, “all publicity is good publicity”.

I wondered whether there was any evidence of the number of ebook purchases by top nympholectors, but wasn’t able to find anything. In the physical world, according to The Telegraph Britain’s most avid reader is Louise Brown, aged 91, who has borrowed 25,000 books from the Castle Douglas library over the years. A brief search has failed to turn up information on who holds the record for ebooks consumed. Given that Ms Brown had actually to lug the books to and from the library, her record deserves to be in a category of its own. No doubt had she been born a bit later she would be deep into ebook consumption.

Halleluja, we’ve just gotten a whole bunch of books falling out of copyright into the public domain. Hasn’t happened for twenty years! The New York Times gives us the “official” news that the one-off delay in public-domain-ification introduced by the Mickey Mouse Copyright Act of 1998 is finally over. By extending the length of copyright protection by twenty years that act stopped books (and any other copyrighted works) entering the public domain since then. Lots of others weigh in on the story: TeleRead among others. Open Culture gives you links to free copies of many books which have just become part of the public domain.

Of course the world will never hear about most of the books which just came into the public domain. They’ll remain just as forgotten as they already had managed to become. But competition will open up: for instance Open Road Media will issue ebooks of several of them, and Penguin Books will publish some, including The Prophet, with an introduction by Rupi Kaur, in competition with the original Knopf edition. Nice to be able to keep the competition in-house. Derivative works (of these newly public domain books) have the lid taken off and will doubtless multiply. One writer suggests a surge of fan fic may result. The Great Gatsby remains protected for another couple of years. So if your ambition has always been too explore the early life of Daisy, get writing so that you’re ready for the starting pistol!

What I keep worrying about is that if the 1998 act was all about Mickey Mouse’s approaching birthday, is it not probable that someone at Disney has noticed that the old guy’s already 90 years old. Disney cannot be unaware that eternal copyright protection for their mouse is a vital legislative requirement.

Copyhype has a story (delivered via The Passive Voice) which tells us about the current workings of our copyright system and prospects for legislation this year. The good news is that the U. S. Copyright Office and the U. S. Patent and Trademarks Office are both operating during the current government shutdown. The ominous news may be how copyright, which is the foundational legal basis for our business, has grown so much that it’s now really all the other businesses touched by copyright who are driving the bus. These other businesses seem all to be growing fast, while book publishing stands pretty much still. The Mickey Mouse Copyright Act brought a focus on movie companies and their rights, and today’s reform impetus looks like being driven by on-line music and video.

Is there any hope that we might be able to get different laws covering the three separate (to my mind) aspects of copyright

  • big investments like movies,
  • on-line items, including music, and
  • books etc. — the written word?

See my post Copyright three ways from a couple of years ago. Isn’t it getting too complicated to combine the different needs of the three strands of intellectual property in one law? Maybe Rep. Nadler can be persuaded.


TeleRead brings us the pleasing story of the legal background of that video of our new and youngest-ever congresswoman, Alexandria Ocasio-Cortez, dancing on a Boston roof while at university. Right-wing purists distributed this video in a misguided attempt to embarrass AOC. Just the opposite has happened. Those few Republicans who believe it’s disgusting for ladies to dance anything more energetic than a waltz no doubt feel vindicated, not of course that they could bring themselves to watch the video. But the vast majority of the public has reacted positively. AOC has responded by posting a little video of her dancing as she enters her congressional office accompanied by a tweet saying “I hear the GOP thinks women dancing are scandalous. Wait till they find out Congresswomen dance too! Have a great weekend everyone.”

Thank goodness Lawrence Lessig prevailed in his lawsuit against Phoenix over their take-down notice so that we are all allowed to see the dance to the music of their “Lisztomania”. Apparently there had been many brat pack remixes featuring “Lisztomania”, and Professor Lessig used some clips in a lecture . The group’s label, Liberation Music, filed a take-down notice. Lessig took it down but at once sued Phoenix for damages for excessive take-down notices. They settled out of court and all the remixes remain in public circulation. Computers working for YouTube have become pretty good at detecting potential copyright infringements, but detecting fair use still requires human judgement, potentially delivered by a law court.

Just to rub fair use in, here is the original 2010 video.

And here’s Ms Ocasio-Cortez’s response.

See no videos? Click on the title of this post in order to view it in your browser.


We traditionalists certainly like to believe that ebooks should be thought of as different from print books. But we seem to be losing the war. Despite the patent nonsense of so doing, some publishers will accept a return of an ebook! Heck, it’s bad enough that we let anybody return a regular book for full credit if they don’t like it — the unscrupulous bibliomaniac could almost never pay for a book; reading each one carefully and taking it back for credit. Books get returned by bookstores because they can’t be sold. But even ones which do get sold can get returned too no matter how crazy the reason. Just hang onto your receipt. Seems we publishers just want people to love us, even if this results in our being made miserable.

So because we’ve been dumb enough not to put a stop to the returns fiasco we follow the logic of our folly and accept returns of ebooks too. What gets returned? Nothing. All that happens is we pay the reader back the money we made from the sale, and no doubt incur some extra cost in “deleting” the file from their “library” if indeed we can. Dumb and dumber.

The ebook can now be seen as nothing more than a different format of a book, in the same way that paperback, hardback, audiobook are different formats, and of course we want to have all formats of our books behave in the same way so we can apply the same rules to all of them. Is this is because we are doubtful of our ability to keep two different sets of rules in our brains at the same time? We are all aware of the fact that the customer doesn’t actually “own” an ebook. They just pay for access to it. You can’t sell (or give away) an ebook after you’ve done with it as you can with that ratty paperback someone tore the front cover off before you even bought it. There’s some fairly tortuous method of lending a Kindle book to another Kindle owner — I’ve done it, but I can’t really remember how. After a certain time the book comes back to you and is no longer available to the lendee.

The Misfortune of Knowing asks “Should Congress allow the sale of ‘used’ e-books?“, an article about the Second Circuit’s opinion in Capitol Records, LLC. v. ReDigi. The court has determined that reselling a music file (and by extension an ebook) is not something covered by the fair use exemption in U.S. Copyright law, but an infringement of copyright. Making a new copy of a digital file is a copyright infringement. Arguing that the copyright law is out-of-date because it was written before on-line file sharing had taken off, is irrelevant. Making unauthorized copies is wrong: it deprives the author and the publisher of their reward: that’s why it’s called copyright.

The trouble with second-hand sales of ebooks is that a second-hand ebook is basically identical to a first-sale copy. If you buy a second-hand print book it isn’t identical to a new copy, though of course lots and lots of them are pretty much indistinguishable — and command a higher price in consequence. But you know that someone’s thumbprint may be there lurking under your thumb as you hold the book open, even if you are not forced to see their reaction to the text by way of annotations, underlinings and turned-over corners. If ebooks were allowed to be sold second-hand, publishers would stop doing them, because potentially you could get to a position where the publisher makes a single sale at full price to a dealer who then offers the identical ebook at half price, second-hand, to everyone else who might have potentially bought the book from the publisher. Be it noted that a second-hand sale not only hurts the publisher, it means the author gets no royalty too.

Sounds to me that rather than trying to get the copyright law rewritten to cure this problem, we should just accept what is the current reality of our sale of ebooks: that they are actually rentals. Just grasp the nettle and sell access on a rental basis. So your ebook costs $14.95 — well that’ll get you access for one year, two years, whatever. Gets rid of the returns problem too. Just try getting your fee back from the Apple store on the basis of your deciding not to watch that movie after you rented it (or even worse, that you watched it and just didn’t like it). Adding the widely hated DRM (digital rights management software) to the file can cause it to “disappear” after the rental period has expired. Yes, yes, I know clever people can defeat DRM, but so too can “clever” people defeat the cash register protections which guarantee a print book’s sales integrity. People have been known to walk out with an unpaid for book in their coat pocket. Believe it or not! Just because thieves exist we are not compelled to offer our books for free.

Here for the enthusiast is TeleRead‘s piece the ReDigi judgement.

What is all this about? It seems just fine that the Register of Copyrights (the Director of the U.S. Copyright Office) should be appointed by the Librarian of Congress. Suddenly we have a move to change this and make it a presidential appointment with Senate confirmation and a term limit. In April Publishers Weekly told us the story. Would anybody be too bent out of shape if it were any President other than the present incumbent? The initiative seems to be tied up with the identity of the current Librarian of Congress, and her attempt to replace an incumbent Register, who now has another job. There is also some potential money wasting being alleged. But doesn’t our Congress have better things to worry about? Maybe some members think there’s nothing more important than patronage.

What it was all about now seems set to become academic — Shelf Awareness of 17 December 2018 tells us “The Senate Rules and Administration Committee has indefinitely postponed voting on the Register of Copyrights Selection and Accountability Act, making it unlikely that the proposal will go to a floor vote before the 115th Congress adjourns. (That would mean supporters would have to start fresh with new legislation next year, where a Democratic House of Representatives might look differently on the whole prospect.) The legislation would make the register of copyrights a presidential appointee and set a 10-year term limit for the position. Currently, the register is selected by the Librarian of Congress and has no term limit. The bill was opposed by the ALA, the Society of American Archivists, and others. Critics noted, among other things, that the bill was being pushed through late in the session, that if favored commercial interests, and that it would represent a decrease of power for the Librarian of Congress.”

Carla Hayden, 14th Librarian of Congress

Not sure I’m able to see why this appointment should have become a party issue, and I wonder what commercial interests it’d favor. Can it all have gotten started because President Obama was the one who nominated Carla Hayden, the current Librarian of Congress, and a certain part of our government seems to have no aim more pressing than thwarting everything our last president did?

It does come as a bit of a surprise to learn that a turkey wishbone turns out to be copyrightable.

Trademark and Copyright Law (via The Passive Voice) has the story of a lawsuit involving Sears and a potential supplier whose sample plastic wishbone, offered as part of his sales pitch, was sent by Sears to a Chinese manufacturer who ended up getting the order for a million give-away wishbones. Nobody can think Sears behavior in this matter was anything but despicable, but is copyright really the appropriate defense? Seems it was, as the plaintiff prevailed. “The Court acknowledged that objects found in nature are in the public domain and can not be copyrighted. However, the fact that an author bases a creative work on a naturally occurring object does not preclude a finding of originality where there is evidence that the author added some creative contribution.”

What would have been the legal situation had Sears sent to Hong Kong not Mr Ahroni’s plastic prototype but an actual turkey wishbone? Probably they’d have ended up about $1.7 million better off.

We all know hip-hop artists do it, and many musicians seem to regard it as a kind of tribute to find a snatch of their own song repurposed in a new track. Remix in the music business started out meaning simply reformatting. I dare say there’s a developing theology of remix, also referred to as sampling, as to how much is OK and how much is too much. I think we’d all agree that my rendition of Yesterday, substituting “Wednesday” for all the “yesterdays” in the Beatles song should not be accorded copyright protection as a new work, but just where the line should be drawn is clearly up for debate.

Same no doubt in other arts. Remix may be a way to describe this black & white version of Graeme Williams’ color photo, but does the alteration make it a new work? Certainly any publisher seeking to reproduce a color photo in black and white only, would not think that because of that change permission didn’t need to be sought. The greying out of part of the picture might be said to put us into a grey area. To me it seems that the alteration is not enough to constitute a new work: the second picture can’t be anything more than a derivative work for which permission from the original copyright owner is required. But of course that’s in the end why we have law courts. Insult was added to injury when Mr Williams noticed that the black & white photograph was being offered for sale by Hank Willis Thomas at $36,000, 25 times what he’s ever gotten for a print.

Details of the two versions from Petapixel.

You can see the whole story (and the complete images) at Petapixel. Link via The Passive Voice. The Guardian also covered the alleged plagiarism.

The Guardian has a little controversy going on as a result of George Monbiot’s piece, Science publishing is a rip-off which amounts to a claim that knowledge really does want to be, and furthermore should be, free. Guardians of balanced debate, the newspaper has published a follow-up consisting of reactions to Mr Monbiot’s article. In the original piece the author touchingly tells us of the expense involved in his researching cancer treatments after his recent diagnosis: but is it not the case that what Sci-Hub saved him from was nothing more than the bus fare and hassle of going to a decent library with subscriptions to all the journals Sci-Hub has ripped off, and reading the papers in question there?

I’ve gone on about the open access issue before, and think that the question doesn’t have a single clear-cut answer. Like any simple formulation of a complicated idea, “information wants to be free” appears to say more than it really can. Too much depends on who’s asking the question, in what context, and what specific meaning is attached to individual words.

It’s undeniable that there’s a logic to the argument that since we all paid for this piece of research through government funding of research and/or universities, we ought to be allowed access to the results without further payment. Leaving aside the issue of private funding of research, the problem comes with the mode of that access. Most academics are modest enough to understand that their writing is at best serviceable for internal discussion, and at worst, incomprehensible to the general public. This isn’t usually a problem, as the traditional journals to which academics submit their papers will all have editors and copyeditors who will, in theory at the very least, whip incomprehensible prose into as elegant a shape as possible. Worried about factual errors? Fear not, peer reviewing will take care of such problems: unknown colleagues will quietly read, check, and approve your work. Which is all very good, and valuable. And costly. Someone has to do this sort of work, and someone usually likes to be paid.

The Economist, reporting on developments in Europe, jumps into this discussion with a piece called The S-Plan diet. Plan S is an agreement among eleven European countries requiring scientists who benefit from national funding to publish only in freely available open-access sites by 2020. This would prevent papers appearing in about 85% of current journals, including the most prestigious. It now looks like the European Union is racing down the legislative track of freedom for info. Now, we can all be relied on the deprecate the hefty prices put on journals by the likes of Elsevier, everyone’s favorite bête noir in this world, but that doesn’t do much good. We can all (I think) recognize that there are costs involved, we just don’t agree on how much of a margin over and above those costs, whatever they may be, the publisher should be allowed. We just believe that the profits are too damn high. The world of open access has tended to take care of these costs by publication fees charged to the authors when they submit the paper. The European legislation seeks to cap these fees, but nobody really knows how much of a fee is too much, and how low fees could go before publishers give up. Naturally, of course, many open-access sites have figured out that there are rich pickings to be made in charging publication fees as high as the traffic will bear, which is often a surprisingly large amount with academics doomed to publish or perish.

For a simple direct assault on the fat-cat publisher, see Aaron Swartz making his case at Academic publishing scandal.