Peter Pan and Copyright

The Value of a Publishing House

Slipping into the New York Times the day after New Year’s was an op-ed by Jonathan Galassi, president of FSG, which begins with the question, “What is an ebook?” and ends (or nearly ends) with this observation: “A publisher — and I write as one — does far more than print and sell a book. It selects, nurtures, positions and promotes the writer’s work.”

In between the opening question and the conclusion is a gap roughly the size and consistency of the La Brea tar pits.

To the first point – “Are e-books a new frontier in publishing, a fresh version of the author’s work? Or are they simply the latest editions of the books produced by publishers…?” – the answer is, of course, “It depends.”

If an ebook is simply a digital reproduction of a print book, the answer leans towards being “the latest editions” – and frankly, in the case of a lot of ebooks, it’s less of a reproduction than a travesty of formatting and a sort-of approximation of what the print book was supposed to offer.

If an ebook contains new information/illustrations, is presented in a variety of formats and fonts, and possibly contains video, or an author interview, or other material…it’s probably “a fresh version of the author’s work” which has been curated by the ebook publisher in a different way than the print publisher did. (And which is what Open Road is saying they’re all about.)

But is it solely the author’s work that forms the basis of that ebook? Galassi argues, in the case of William Styron, “An e-book version of Mr. Styron’s “The Confessions of Nat Turner” will contain more than the author’s original words. It will also comprise Mr. Loomis’s editing, as well as all the labor of copy editing, designing and producing, not to mention marketing and sales, that went into making it a desirable candidate for e-book distribution. Mr. Styron’s books took the form they have, are what they are today, not only because of his remarkable genius but also, as he himself acknowledged, because of the dedicated work of those at Random House.”

All true!

But then the trouble starts. Galassi states: “An e-book distributor is not a publisher, but rather a purveyor of work that has already been created. In this way, e-books are no different from large-print or paperback or audio versions. They are simply the latest link in an unbroken editorial chain, the newest format for one of man’s greatest inventions: the constantly evolving, imperishable book — given its definitive form by a publisher.”

And here is where I strongly disagree. It’s those words “definitive form” – which presume that the hardcover first-run is the “real” book, while everything that follows is somehow derivative. As our work with StartwithXML has demonstrated, this view of the “editorial chain” is rapidly evolving into a model where there is NO “definitive form”.

It is true that an ebook distributor is not a publisher, in the same sense that a physical book distributor (Ingram, Baker & Taylor) is not a publisher. And many physical distributors are also ebook distributors.

But an ebook PUBLISHER is a publisher. And this is where I think Mr. Galassi gets it wrong. Because nowhere in this essay does he even discuss ebook publication, or regard ebooks as anything other than a digital version of a print book.

Let’s have a look at audiobooks as a parallel. Audio versions of books have to be read by someone – either a professional reader such as Jim Dale, or a famous/semi-famous actor, or a voiceover artist. That person must modulate his voice, decide what to emphasize, re-create the work aurally. A simple reproduction of the book so that you can hear it is more along the lines of what DAISY does for the visually-impaired, where you get a computerized voice reading rapidly and without inflection, spelling the words it doesn’t recognize.

Audio divisions of publishing houses – and independent audiobook publishers such as Brilliance – determine abridgement, voice quality, and a host of other factors in producing these “books”. And I would argue that the level of nurturing, curation and editorial is as meticulous as it is for that hardcover book. Audiobook publishers are not simply distributors – and to call them this is a disservice to what they provide.

As we fully explore the potential of ebooks (as Open Road is doing) we’ll find opportunities for precisely the sort of care-taking and curation that Mr. Galassi values so highly - just as we have for audiobooks. The “traditional” publishing process will not be replaced or diminished by ebooks – it will be amplified.

So yes, there will still be publishing, as Galassi himself concludes. “Even if someday, God forbid, books are no longer printed, they will still need the thought and care and dedication that Mr. Loomis and his colleagues put into producing William Styron’s work for nearly 60 years. Some things never change.”

Which kind of leaves me ultimately shrugging at this article. So what was your point?

The truth is, Galassi’s point is largely unspoken – and you have to have been in publishing a little while to glean what he’s really talking about. It’s very clear that he wants some form of credit for what traditional hardcover publishers do. In publishing, the form of credit that is most widely recognized is, of course, rights.

It’s interesting that Galassi brings up Random House in this particular example – because initially, Styron’s publisher was Bobbs-Merrill (as a correction notes at the end of the piece). In early December, of course, the CEO of Random House issued a memo asserting that Random House retained the digital rights to all its titles - shortly after Open Road announced that it would be mining publishers' backlists for ebook material. Galassi seems to be lining up on the side of Dohle – that publishers, when they acquire a book from an author, are allowed to publish that book however they want, whenever they want.

And if those rights were not explicitly granted in contracts (because of course many contracts pre-dated any existence of ebooks), and if the courts do not uphold Random House’s position, it appears that what Galassi is not-so-implicitly saying is that publishers nevertheless deserve a portion of whatever profit is made from those digital books.

This gets even more interesting, of course – Galassi is essentially saying, “You wouldn’t even have a product if it weren’t for what we’ve done, so we should get some compensation beyond what we’ve earned from the production of this hardcover book. Those rights are implicitly granted in the contract with the author."

Which is basically an invitation to a large and long party attended by contracts and IP lawyers.

Practically speaking, however, the question then becomes, “How are you going to figure out what the hardcover publisher's compensation should be?” Because in order to carve out that compensation, a monetary value has to be placed on each component of the publishing house: editorial, marketing, sales, production, etc. And no traditional publishing house I’m aware of actually tracks these functions the way they would need to be tracked to create useful algorithms. Is Galassi saying they’re going to start?

There are other issues, of course. Not every author is a Styron – you’re not going to want to invest all that caring and tending in every single author. (And not every editor is Gordon Lish or Max Perkins, tenderly re-shaping, or in some cases gutting and renovating, what the author brings him.) When I worked in publishing 20 years ago, 80% of what my editors acquired went directly to copy-editing – no nurturing, no sitting down with the author…no reading. So I honestly have to question how much value is inherent in that 80% – obviously, the copy-editing process has value, of course, but what if the editor took a manuscript (as increasingly happens) from an agent that had already been edited, packaged, otherwise made publication-ready?

Authors have traditionally complained that their publishers aren’t doing such a great job marketing and selling their books; the explosion of self-publishing ventures and digital marketing consultancies (ahem), as well as the influx of new marketing-department hires at traditional houses, are evidence that these authors may in fact have a point. If an author can demonstrate an increase in sales after moving to a self-publishing model (as Steven Covey appears to be doing) or hiring a marketing consultant, what value is the publisher actually bringing? (I AM excited about publishing's new digital marketing hires - many of them are very clued-in and will contribute a great deal of value - if they are allowed to do the things that need to be done.)

As for production, typesetting, paper selection – these are very important for print products, obviously, but ebooks use entirely different formatting and thus a great deal of print production is irrelevant to ebook creation.

I’d argue that we can’t take for granted that a traditional publishing house – simply by virtue of being a publishing house – adds value. The value a publishing house adds really depends on the editor, the author, the culture of the publishing house, and the book itself.

Whatever a “book” is. Wanna go there?

US Register of Copyrights on GBS

Marybeth Peters, the US Register of Copyrights, testified before the House Judiciary Committee today regarding the Copyright Office's view of the Google Book Settlement. I've read her testimony - it's a good summary of the problems with the settlement.

Some excerpts:

When the parties announced last fall that they had reached a settlement in what was becoming a long and protracted litigation, our initial reaction was that this was a positive development.  But as we met with the parties, conversed with lawyers, scholars
and other experts, and began to absorb the many terms and conditions of the settlement—a process that took several months due to the length and complexity of the documents— we grew increasingly concerned.  We realized that the settlement was not really a
settlement at all, in as much as settlements resolve acts that have happened in the past and were at issue in the underlying infringement suits.  Instead, the so-called settlement would create mechanisms by which Google could continue to scan with impunity, well into the future, and to our great surprise, create yet additional commercial products without the prior consent of rights holders. For example, the settlement allows Google to reproduce, display and distribute the books of copyright owners without prior consent,
provided Google and the plaintiffs deem the works to be “out-of-print” through a definition negotiated by them for purposes of the settlement documents.  Although Google is a commercial entity, acting for a primary purpose of commercial gain, the
settlement absolves Google of the need to search for the rights holders or obtain their prior consent and provides a complete release from liability.  In contrast to the scanning and snippets originally at issue, none of these new acts could be reasonably alleged to be
fair use.

 

She goes on to compare Google's scanning to services provided by cable companies and the like - "compulsory licenses":

At very least, a compulsory license for the systematic scanning of books on a mass scale is an interesting proposition that might merit Congressional consideration.  As stated above, various compulsory licenses have been carefully crafted over the years after extensive deliberation and consideration of the viewpoints of all affected stakeholders, though none apply to books or text.  Among the issues Congress would want to consider are the pros and cons of allowing copyright users, rather than copyright owners, to initiate the digitization of copyrighted works; the rate of compensation that should be paid to copyright owners; and whether the same license terms should apply to mass digitization activities undertaken for the public interest by non profit organizations such as libraries, and for profit purposes by commercial actors.  Congress also would want to consider whether all books merit the same attention, or whether differences can be drawn from the date of publication, the type of publication, or such facts as whether the rights holder is likely to be alive or deceased. 

Here, she explains that "out of print" is not the same as "out of copyright":

The activities that prompted the plaintiffs to file suit against Google – the wholesale scanning of  books, electronic indexing and snippet display – are activities as to which reasonable minds might differ when considering whether such activities are acts of infringement or are, for example, fair use.  However, the same cannot be said of the new uses that the settlement agreement permits Google to make of out-of-print works.  We do not believe that even Google has asserted that, in the absence of this class action settlement, it would be fair use to undertake the new activities that Google would enjoy risk-free as a result of the settlement.  In essence, the proposed settlement would give Google a license to infringe first and ask questions later, under the imprimatur of the court. 

Also, "orphan works" are not the same as "out of print":

As a side note, the Copyright Office would like to underscore for the Committee that out-of-print works and orphan works are not coextensive.  Orphan works are works that are protected by copyright but for which a potential user cannot identify or locate the copyright owner for the purpose of securing permission.  They do not include works that are in the public domain; works for which a copyright owner is findable but refuses permission; or works for which no permission is necessary, i.e. the use is within the parameters of an exception or limitation such as fair use.  Many out-of-print works have rights holders who are both identifiable and locatable through a search.  In fact, the U.S. works covered by the proposed settlement would all be searchable, at a minimum, through Copyright Office records because the settlement includes U.S. works only if they are registered. 

Problems the BRR cannot solve:

The Office also notes that while the BRR might well provide a place for rights owners to come forward with contact information, it is also likely to have the unfortunate effect of creating a false database of orphan works, because in practice any work that is not claimed will be deemed an orphan.  Many rights holders of out-of-print books may fail or refuse to register with the BRR for very good reasons, whether due to lack of notice, disagreement with the Registry’s mission or operations, fear (e.g. privacy concerns) or confusion.  The fact that the rights holder is missing from the BRR may also mean that he has no interest in licensing his work.

And...the French (and everybody else outside the US):

We are troubled by the fact that the proposed settlement implicates so many foreign works even when they have not taken steps to enter the United States market.  While it would be appropriate to allow foreign nationals to participate voluntarily in licensing programs that may be developed by the BRR or other collectives, they should not be automatically included in the terms of the settlement.  Moreover, we are aware that some foreign governments have noted the possible impact of the proposed settlement on the exclusive rights of their citizens.  Indeed, many foreign works have been digitized by Google and swept into the settlement because one copy was in an academic research library in the United States.  As a matter of policy, foreign rights holders should not be swept into a class action settlement unknowingly, and they should retain exclusive control of their U.S. markets.  

Read it!

Because They're French!

The project, to be unveiled at the [Paris Book] fair, will offer more than 60,000 digitised works from the Bibliothèque Nationale de France (BNF) and 2,000 from about 50 publishers, some of whom received subsidies for the purpose. The BNF plans to add another 40,000 books imminently, with those copyrighted books supplied by publishers expected to quickly exceed 10,000.

Peter Brantley on Google

NYT: New Media is complicated

Screenwriters argue that their labors generally create programming that has very high value — value that would seem to multiply as it spread over more platforms.

Media companies have a story to tell as well: If they are about to make jillions on new media, the markets don’t seem to think so....Writers, still smarting from giving away the store in terms of video and DVD before the true value of those businesses became apparent, are not about to cave in. Producers, who have yet to find a revenue model for digital content, do not want to be hamstrung by a costly deal with writers while they try to figure it out.

"Exaggerating" Copyright?

The Times is chock-full of book-industry stories today (were they saving them all up?) and of course in the business section there was the article about Yahoo, Microsoft and Google - in the guise of their trade association, CCIA - filing an FTC complaint against the NFL, Major League Baseball, NBC, Harcourt and Penguin, stating that these companies

display copyright warnings that are a “systematic misrepresentation of consumers’ rights to use legally acquired content.”

The complaint alleges that the warnings may intimidate consumers from making legal use of copyrighted material, like photocopying a page from a book to use in class.

“It is an attempt to convince Americans that they don’t have rights that they do in fact have,” said Ed Black, the association’s president and chief executive. “This is part of the larger context of what should be and what are proper rules for copyright in an Internet age.”

Legal blog urges poaching of BISAC codes

I ran across a weird little post today on the legal blog Slaw, a Canadian site devoted to "Canadian legal research and IT":

If you're working on a simple taxonomy of legal topics, you might take a look at the Book Industry Standards and Communications (BISAC) subject headings for law....I imagine, not being a copyright maven, that this sort of list is in a grey area, keeping company with compilations and tables of contents. I understand from some personal experience that it takes effort and creativity to elect a set of terms within a discipline and to order them. You'd be hard pressed, though, to prove that with a few twists here and there a list wasn't arrived at independently — and, more to the point, perhaps, these are such broad terms and so basic to legal work and promulgation no one should be able to stand in the way of their free use. Which is why I think the routine overreaching of copyright notices like this one are silly and maybe harmful: "No part of the attached documents may be… reproduced in any manner whatsoever…"

Well, if this guy had sat in on the meetings during which these subject lists are composed, along with all the publishers, booksellers, librarians, and others who fly to New York once a month and bust their butts on this, perhaps he wouldn't see the copyright notice as being particularly "overreaching". 

Kakutani Gets Advance Copy of HP7, Reveals Nothing

God bless her.

For several moments, I was afraid my pre-order for Saturday morning was in peril. 

Spoilers Go Viral

Following on the heels of yesterday's release of HP7, painstakingly photographed page by page, over BitTorrent, spoilers have strafed across the web faster than Stealth fighter jets. Scholastic is vigorously sandbagging leak sources, a phalanx of Bloomsbury lawyers have swung into action, and those who want the full Potter reading experience are hunkered down in basements without internet access, wearing blindfolds and noise-reduction headphones.

Or so the media would have everyone believe.

Defense Against the Dark Arts of...Photobucket?

The Times reports that Photobucket.com (a subsidiary of Murdoch's News Corp) has been asked to provide certain web pages to Scholastic that may violate HP7's copyright. Additionally, Scholastic has subpoena'd Gaiaonline.com for the name of an individual who posted pictures of the pages of HP7. Scholastic has said there are at least 3 different copies (or partial copies) of the book online with what they call "conflicting content".

It's kind of like watching a plague of mosquitos attack a bear.

Bloomsbury Lawyers Unplug TorrentFreak

New York magazine reports that the website streaming the new Harry Potter book prior to publication has been, uh, zapped with Petrificus Totalus. See for yourself here.

Meanwhile, they warn to "click carefully" for the next few days. They don't call 'em spoilers for nothin'. 

Harry Potter hits BitTorrent

Digitization for the Disabled

Google/CIC contract gets legs

The terms of the CIC deal reflect a growing change in Google's attitude toward the publishing industry. Mark Sandler, CIC director and former collection development officer at the University of Michigan University Library, pointed out that the CIC deal differs not only from Google's deal with Michigan, but from its other library partnerships as well. "I think there's just been a lot of discussion over the last two years," he said. Sandler said he didn't disagree with some of observations by fellow librarians concerning the deal, but said that, without the funds, time and staff to undertake their own major scanning efforts, CIC libraries are satisfied to have Google provide some measure of access.

Brantley Calls Out Google

And that to me is potentially the saddest loss, should such an arrangement come to be realized. Because in real terms, across this vitally important collection of humanity’s literature and thought, of all the ways of thinking about books and working with ideas on the Web, we might be left with only one way.

Google Keeps Reelin' 'Em In

Windows Live Search is...Live

The Big Picture - DRM is Not Copyright; Copyright is not DRM: A Primer (Part II )

S&S Responds to Author's Guild

Perpetually in-print: one author's view

Google Books Asia

And in Google news...

YouTube to go to the Revenue-Sharing

Participating user-partners will be treated as other content partners and will have the ability to control the monetization of the videos they create. Once they’ve selected a video to be monetized, we’ll place advertising adjacent to their content so participating user-partners can reap the rewards from their work.

Google's going to keep on keeping on

Google’s court filing gives few new details of its legal thinking, which relies heavily on the so-called “safe harbor” provisions of the Digital Millennium Copyright Act, enacted in 1998. Those provisions generally hold that Web sites’ owners are not liable for copyright material uploaded by others to their site as long as they promptly remove the material when asked to do so by the copyright owner.

The Big Picture - DRM is Not Copyright; Copyright is not DRM: A Primer (Part I)

DRM is not copyright; copyright is not DRM

Valenti gone - DMCA to follow?

EU to the rescue

The group recommended that digital copies of orphan works—for whom no copyright holder can be identified—be made available for noncommercial purposes after a thorough search for copyright holders is completed, according to a European Commission press release.

For materials that are out of print but still under copyright, the group proposed that libraries be granted a license that bestows nonexclusive and nontransferable rights to digitize and make their holdings available to users on a closed network of other European libraries, museums, and archives.

Digital books