publishers, writers and rights, oh my

The Internet has changed the world faster than any other technological revolution in history.

corporate vs. creator copyright

When that obsolete stuff known as videotape was new, it, too, wreaked havoc. Suddenly movies and tv shows were being released on the new medium. But the big media companies felt no compulsion to actually share the new found wealth with the creators.

Some creators took issue with this, and fought it out in court.   And courts duly ruled that creators were entitled to compensation from these new revenues.

Having written the music for the Disney classic “Lady and the Tramp,” Singer/songwriter Peggy Lee was at the forefront of the fight. Urban Legend has it the Disney company did not take the court decision very graciously and vowed not to release the popular children’s film again until after Peggy Lee’s death.

It doesn’t matter if the legend is true or not, it would be a reasonable business practice; a sound corporate strategy. Suppressing the work warns other would-be litigants about the economic risk of asserting their legal rights with the added bonus of imposition of artificial scarcity which inflates the value of the product when finally released.

To me it illustrates the difference between corporate and creator agendas, and in particular why corporations should never be allowed to hold copyright. Creative works of any kind, what human beings call art, are valued differently by human beings, while to a corporation, the only value of art is the bottom line.

enter the lawyers

Here in the Twenty First Century, Intellectual Property Law has become the “sexiest” area of the legal profession because it is both one of the most lucrative areas of law and the source of mind boggling power.  IP law has been changing the world.

The primary changes to copyright and lawmaking have been driven by the big media interests.

Music, movies and television “rightsholders” have been driving the changes since those are some of the most lucrative forms of intellectual copyright product.

All the changes to Copyright Law over recent decades have been made to benefit corporations at the expense of both creators and culture; the rules of copyright have been quietly becoming madder and madder (as in the hatter).

writers and publishers

Ironically, although copyright began to provide incentive for the creation of literary works by making it possible for good writers make a living, the publishing industry has not been in the forefront of the current copyright war. The American book publishing industry was built on commercial piracy, more properly called bootlegging.

In the early days of twentieth century paperback novels sold for less than a dollar and writers were paid only a few pennies a word.

Nearing the end of the century I was surprised to learn that writers were still being paid mere pennies a word although paperback novels sold for upward of ten dollars.

The justification was always the great expense borne by the publisher. Printing and distribution costs rose with inflation while payment to the creators did not keep pace. Publishers impressed upon writers that demanding better pay would make books too expensive and lead to fewer books sold. Physical costs were tangible and so always managed to take precedent over the writer’s intangible creativity.

The 21st Century we have seen the introduction of ebooks. Digital books differ from physical books in one crucial way: they cost next to nothing to copy.

Yet customers have been conditioned to spend on the order of twenty dollars for a physical book. Naturally publishers have been happy to sell the average ebook in the ten dollar range. After set-up production costs are negligible, making the revenue stream approach 100% profit.

Amazingly, these same publishers begrudge any change in the royalty payments to the authors. Instead of sharing this good fortune with their writers, the golden egg laying geese of the publishing industry, most publishers have been trying on the same power grab movie companies tried with video: laying claim to legal rights they had not been granted.

One of the most compelling reasons I never seriously considered placing my novel with a traditional publishing house was the problem William Styron’s heirs had with the publisher.

Mr. Styron’s family believes it retains the rights, since the books were first published before e-books existed. Random House, Mr. Styron’s longtime publisher, says it owns those rights, and it is determined to secure its place — and continuing profits — in the Kindle era.

The discussions about the digital fate of Mr. Styron’s work are similar to the negotiations playing out across the book industry as publishers hustle to capture the rights to release e-book versions of so-called backlist books.

–New York Times: Legal Battles Over E-Book Rights to Older Books

That was my tipping point. Would you trust this industry to do right by you?   I wouldn’t.   Given the choice, I’m not willing to hand over my creative work to traditional publishing. Particularly since this same digital revolution gives me choice: technology has made self publishing a valid and viable option.

The arrogance of publishers to assert claims to ebook rights by default– simply because they’d published traditional physical paper version– is ludicrous.

At issue is who holds digital rights in older titles published before the advent of ebooks. Publishers argue that the ebook rights belong to them, and authors and agents respond that, if not specifically granted, the digital rights remain with the author.

–The Guardian: Publishers rage against Wylie’s ebook deal with Amazon

On Friday (June 23rd, 2010) the Wylie Agency shook the world

by taking a stand for authors and against the publishing houses. (And for themselves, never forget that. Wylie has launched a whole new business here; this may well be straying into anti-trust waters.)

This Literary Agency is setting up the Odessey Books imprint under which they will release older works as ebooks; specifically books whose digital rights have not been signed over to the physical publishers.

The publishers who believed themselves entitled to this copyright are of course greatly outraged that works they believed safely under their control has been snatched out from under them.

Odyssey certainly appears to already be a going concern, with a set of clean simple text based digital book covers for the classics they are releasing exclusively through Amazon’s Kindle for the first two years.

Good for Wylie, good for Odyssey.

From a consumer’s point of view I have reservations. I only looked at the pricing for one book, so the prices may vary, but I have to wonder how the ebook version of a books could cost more than the physical paperback version also sold through Amazon. Yes, the ebook version is sleek and lightweight, but the Kindle is after all a reader laden with DRM that I understand prevents copying for both format shifting and backups. In other words, the ten dollar ebook will be locked inside a brick if the Kindle breaks down or becomes obsolete. But that’s another story.

From an author’s point of view, there may be financial problems. Odyssey doesn’t seem to be offering authors such a great deal.

“Yes, there are costs of creating a digital version, but offering a 25, 30% royalty is insulting.”

~Kassia Krozser, Today in Publishing: A Skirmish

Although I don’t believe the Guardian’s assertion that Wylie’s Amazon deal brings the end of the publishing world nigh, I certainly do think this is a good thing.

It sounds to me that the Wylie Agency is stepping in and performing the service that that publishing houses should have performed for their clients. Adaptability is key to any business long term survival. The total control they have long held seems to have seduced the publishing industry in much the same way it has the recording and movie companies into believing that they deserve control of these copyrights.

this story can help start the copyright conversation

Technology has changed the world indescribably, and corporations have exerted untold amounts of pressure on lawmakers the world over to legislate anti-progress in the form of copyright laws and treaties.

@tonycurzonprice rt @tom_watson
DRM lobbyists are back in parliament. they want even more.

The changes being made to the world in the name of copyright are still largely unnoticed by most people. Demographically young computer savvy people are among the most knowledgeable sector of society about these issues, but they are a minority. And the fact remains that the whole world NEEDS to be part of the conversation. Allowing corporate interests to control the conversation is increasingly leading to greater and greater imbalance.

copyright and the public domain

I’ve never understood how anyone besides the creator is entitled to the proceeds from copyright. License the work to the publisher sure, but giving them copyright? No legal system should ever have allowed this. Copyright was meant to encourage creation for the good of culture.

In the beginning there was the commons. Ownership of the songs and stories of belonged to everyone. Story tellers preserved and shaped the culture, and in return society made sure they could make living at it. Minstrels telling a good tale or singing a good song were fed. The introduction of the printing press changed things in that the words of the writers could now be spread and shared through this artificial means. Copyright is an artificial right assumed by society in an effort to encourage creators to continue to create by controlling the monetization of their work for a finite period of time. When the term was up, the work went into the public domain so that all of society could get the benefit.

tweets from ORGcon

The UK Nonpartisan Open Rights Group, working to fight the UK’s ill advised hastily passed Digital Economy Act, today held #ORGCon. Cory Doctorow tweeted highlights. Copyright and the Public Domain were central to the convention, and much of what @doctorow and other attendees shared online, particularly comments by keynote speaker James Boyle provide some powerful background for this article:

James Boyle

tweeting at #orgcon
@doctorowsez:

rt @thepublicdomain
aka James Boyle keynote at #orgcon

• For the 1st time in human history, all the works produced by our contemporaries are inaccessible to us
• Paradox: absent Creative Commons etc, none of us will be able to share/use/mix anything made by our contemporaries in our lifetime
• Most works exhaust all commercial viability in 5 years
• Prior to 1978, 85% of works went into PD after 28 yrs b/c most authors didn’t think it was worth renewing copyright
• Of works in British Library > 28 yrs old, only 3-5% are commercially available
• Retrospective copyright extensions cut us off from our own culture to the benefit of no one
• If industry norms on copyright clearance were given as exam answers in law school, you’d flunk out
• Why not say “Hell with it. Copyright is dumb… ignore it.” Because culture’s viability shouldn’t be dependent on lawlessness
• Copyright maximalists have created a generation of lawbreakers, some guilty, some joyful. This is a great harm
• Prior to GOOGLE Book Search, books had been transformed into the least accessible place to put information

rt @owenblacker

Our educators’ understanding of copyright is akin to playground understanding of sex

rt @footage
Baby Boomers can legally share/use/mix much of their own history after 28 yrs. Generation X & Millennials can’t. Copyright discriminates.

rt @rob_jewitt:
The odds of copyright incentivising dead authors is pretty low

@elmyra tweets:

• Jennifer Jenkins: What used to be considered creativity is now thought of as theft.
• We’re the first generation in history to deny our own culture to ourselves.
• The Digital Economy Act was the result of the biggest lobbying operation @tom_watson (not speaking on behalf of his government) has seen in his political life.
• “An entire generation has given up the idea that breaking the law is wrong”~ James Boyle

For further first person #org coverage read:
Elmyra’s ORGcon 2010 Livejournal

rt @doctorow: Until the tenth Century a musicians just needed to play.
Until the 19th century musicians just needed to be literate.
In the twentieth century, musicians needed to be geeks,
But in 21st Century musicians need to be lawyers.

These laws will force all of us to be lawyers.

Everyone from professional media makers to children putting together school projects.

The United States has enacted the DMCA. The UK the DEAct. Canada has tabled Bill C-32, copyright legislation misleadingly titled “The Copyright Modernization Act”. And the secret international copyright treaty A.C.T.A. seeks to subjugate the copyright laws of the whole world.

Copyright is no longer simply an area of special interest to publishers and writers. Changes being made in the name of copyright effect culture and the the way we access culture in every country of the world.

We all need to be part of the conversation.

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Image Credits: spider web used under a CreativeCommons Attribution 2.0 Generic license (by) 2004 cybershotking
Fate of videotape (en:obsolence) © 2004 by Tomasz Sienicki used under a Creative Commons Attribution 2.5 Generic license
William Styron, Santiago, Chile, 1988 photo by Marcelo Montecino Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic
Wikipedia cropped cinema image of Peggy Lee, used under the public domain in the US and fair dealing in Canada

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