Intellectual Property And Your Work: Protection

ipaypThe Congress shall have power .. to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” -US Constitution, Article 1, Section 8, Clause 8

To fulfill this charge, Congress has been securing rights to authors for more than two centuries. But our Founding Fathers couldn’t have imagined how current technology would threaten this whole scheme.

If you think I mean the photocopier, wake up and smell the toner: The greatest challenge to authors’ copyrights is the rapid growth of networked computers–and publishers’ alarmist responses to this new technology.

In short, beware of PCs, the Internet, and your friendly neighborhood publisher.

But all is not lost … at least not yet. While these new technologies present specific challenges to writers, they also offer up intriguing possibilities. And as a writer in the digital age, you must learn how to protect yourself and your work.

Upsides/Downsides

The digital age–in particular, the increasing ability to communicate between intelligent computer processors anywhere on the planet–offers benefits to everyone. Plugged-in writers have quick access to current information on virtually any topic, which should increase accuracy and reduce research time enormously. And not only can writers pull information in, they can send it out.

Indeed, the Internet is the greatest self-publishing tool in writing history–not just for Ziff-Davis and HotWired, but for small publishers and individual authors.

Unfortunately, the risks are almost as great as the rewards.

One risk, to both writers and publishers, is illustrated by domestic and international attacks on Internet pornography: Laws on obscenity differ greatly, among countries, even among US regions. A work with sexual or violent content that is acceptable on the East or West coasts may shock readers in the rural South and be unquestionably criminal abroad.

Similar problems can arise when it comes to defamation. What our First Amendment considers to be protected speech in the US may be actionable libel elsewhere. And as Salman Rushdie learned, what raises eyebrows in the West may be a capital offense in the Middle East. In an online world, writers and publishers must worry over their potential liability when works meant for one audience find their way to audiences with different moral, religious and legal systems.

The Copyright Challenge

Still, the bigger threat to writers is that once their work is digitized, pixel-perfect copies can be delivered in the blink of an eye to millions of sites around the globe, where the work can be read, printed, edited, adapted and otherwise exploited–all without the permission, or even the awareness, of or payment to the author,

To appreciate how lethal this can be, You must understand that under US copyright law authors have a broad range of legal protections, including:

* the exclusive rights to copy, adapt, publicly perform, publicly display and sell their work

* the right to sue infringers in federal court (after registering the work, which can occur anytime during the term of copyright–in most cases, the author’s life plus 50 years)

* the right to recover their losses and the infringer’s profits, or (for infringements occurring after registration) “statutory damages” up to $100,000 plus attorneys’ fees. (For a more complete discussion of copyrights, see my “Questions and Answers About Copyright” in last month’s WD.)

These copyright benefits, which enable authors to control and profit from their works, are threatened by the reach and immediacy of cyberspace.

Of course, not everyone believes in copyrights. Some have recently argued that copyright should be abolished and all Internet content be made free. Others claim that copyright is useless, though writers should be compensated not by relying on threats and lawsuits, but by relying on embedded codes, metering devices and “cybercash” systems. Still others believe that the copyright regime is fine, though occasional fine-tuning will be needed to keep it effective on the information superhighway: hence, the Administration’s recent Green Paper, White Paper and proposed minor improvements to the Copyright Act.

Regardless, until a new body of law develops, or technology’s ability to protect written works overtakes its ability to transmit and distort them, Writers have little choice but to rely on the existing legal framework, principally copyright and contract law. But before I suggest ways to do so, let me describe a final hurdle.

The Publisher Challenge

The most immediate challenge to writers’ wallets is posed by publishers’ responses to the digital communications revolution.

In the good old days, magazine publishers usually purchased one-time publication rights, or first publication and reprint rights. Although most book publishers wanted more, they generally left the “exotic” subsidiary rights–motion picture and other performance rights, and rights in new technologies–with the author.

These days most book publishers demand everything, though they may settle for time-limited subsidiary rights and will generally leave “ownership” and more exotic rights with the author (especially if the author has an agent). Even magazine publishers have gotten greedy. Some demand all rights, often under “work-made-for-hire” contracts or so-called copyright “releases.” Increasing numbers of magazines demand unlimited electronic rights, and often “new technologies” rights as well, though only a few will pay for these rights. Indeed, last year, The New York Times was trashed by the writing community for demanding that most freelancers assign the Times all rights to their works, including electronic rights, without additional compensation.

To be fair to publishers, they are caught on the horns of an electronic age dilemma: to meet competition and appear online, they need the right to distribute their writers’ works electronically; but because most are uncertain how to profit from these new technologies, they can’t determine what, if anything, this right is worth. (For example, in January The Wall Street Journal reported that hyperhyped HotWired, a World-Wide Web cyberzine reporting 500,000 “hits” a month, was still not making money.)

But to be equally fair to writers–whose struggle is even more severe–it is unfair to be asked to surrender additional rights, lucrative markets and potential income, gratis … whether or not publishers’ make money.

Are there ways to balance publishers’ and writers’ contrasting interests? I believe there are writers who recognize publishers’ needs and concerns, who understand what options exist, and who are willing to advocate for their interests and negotiate with their editors to find “win-win” compromises that respect the interests of both.

Protecting Your Copyrights

Let me suggest four basic measures you should use to protect your copyrights in cyberspace.

* Use copyright notices. There are both legal and practical benefits to including a copyright notice on your works. A proper notice includes the word “Copyright” or the copyright symbol (or both), your name and the date of first publication

* Register copyrights in your important works. US law allows writers better remedies if their works are registered before the infringement occurs. Of course, registration takes time and money: You must complete a form, pay a $20 fee, and deposit one copy of your work (if unpublished) or two “best” copies (if published). Therefore, unless you have an unlimited budget, only register copyrights in your works with longterm or substantial value.

* Sign up with licensing societies. Writers’ groups have begun to organize registries to monitor uses, enforce cop rights and collect royalties respecting members’ works. For example, the National Writers Union is rolling out the Publication Rights Clearinghouse, licensing agency similar to ASCAP and BMI in the music industry. The Authors Guild, with the American Society o Journalists and Authors (ASJA) and others, offers the Author’s Registry, which combines a database of rights holders with a compensation agency. Investigate these opportunities.

* Prey on readers’ sympathies. Don’t underestimate the value of veiled threats and appeals to guilt. For example, you could introduce important online transmissions as follows:

The following article was written

by an author who earns his living

writing. Copying, retransmission or

unauthorized reuse of this work

not only violates federal copyright

law, punishable by civil and criminal

sanctions, but is outright theft

and harms this author’s livelihood.

Please don’t do it.

Dealing with Publishers

The more difficult problem for most writers is keeping a slice of the electronic pie when dealing with publishers. Imagine, therefore, that you face what every author both prays for and dreads: A publisher who wants your work “Hooray!” and all rights to it “Boo!”. What can you do?

First, don’t sign “work-made-for-hire” or “all rights” agreements. Unless you are getting paid inordinately well, the work is insignificant, or the publisher and market are of strategic importance, you should not give up all rights to your work. Of course, your refusal need not be a simple “No, thank you.” Instead, consider replying to the editor, as appropriate, with the following approaches:

* Carefully define the electronic rights granted. Ask your editor how the publisher intends to use your work electronically, then write an agreement accordingly. This may enable you to impose the following limits.

* Limit the publisher’s use to electronic formatting. Offer the publisher the right to deliver electronically only your full text, in original sequence, without images or sounds. This allows the publisher to use electronic media as a delivery system for your work, but not to create a multimedia product. (Besides, permitting your publisher to create multimedia works could conflict with performance rights in your work.)

* Limit the use to specified formats and media. Similarly, if its intended uses are well defined, your publisher may agree that its electronic rights are limited to distribution via specified formats (such as CD-ROM), in specified markets (such as inclusion in a medical database) or over designated online services (such as America Online). Rights to all other formats and media remain with you. For example, a writer might include this clause in a letter agreement:

You are granted first North American

print publication rights, for

publication within six months of

today’s date, and nonexclusive onetime

print publication rights thereafter.

You may also distribute all or

a portion of my text electronically

by including it in a database of medical

information available from

your World-Wide Web site and to

subscribers of your STM database

services. These rights expire three

years from this date. You agree not

to adapt, distribute or use my work

in any other manner.

* Offer short-term electronic rights. Try time-limited rights (say, three to five years), or a “use it or lose it” approach: If your publisher fails to exploit electronic rights within one to three years (and pay you minimum royalties), these rights revert to you.

* Grant nonexclusive electronic rights. For magazine pieces (and often even for books) publishers need exclusive rights only for a short time. In the old days, most magazine publishers allowed writers to reuse their work soon after initial publication. Suggest to your publisher that after your article is published, you and the publisher each have nonexclusive rights to reuse it electronically.

* Require approval. If you want to control the use and presentation of your work, ask the publisher for a right to approve electronic uses.

* Seek an indemnity. If you worry that your publisher’s intended online use may deliver your work to locations where it could be deemed indecent, defamatory or otherwise cause you problems, insist that your publisher indemnify you from that risk.

* Get paid! At a minimum, make sure you are compensated for electronic or other subsidiary rights. Some publishers already offer payment for electronic rights. As I write this, Harper’s and Publishers Weekly have announced that they will split past and future new-media and online revenues with authors.

For publishers without established policies, request a reasonable royalty. Although royalties require bookkeeping–often a royal pain for both sides–they enable publishers to pay little when they aren’t making money, while allowing writers to share the bounty if their work does well. Propose a 75/25 or 50/50 split of sales for electronic full-text distribution. (Both the National Writers Union and ASJA suggest 50%). However, if your publisher is licensing your work for use by a third party in creating an electronic product, many would argue that your publisher is simply playing agent and should be paid accordingly: It keeps 10-20% of the license fees attributable to your work, you receive 80-90%.

If all else fails, suggest as a compromise that if the publisher decides to reproduce your work in an electronic format, you and the publisher will agree on appropriate compensation based on then-current industry standards. Try to be as specific as possible in defining the “industry”: scientific journals, computer industry trade press, etc. Also, because there may be no standard, propose a minimum: “but in no case less than 5% of the publisher’s gross revenues from such uses.” This approach lets you demand some payment and negotiate for more.

The online world offers opportunities for everyone: publishers, writers and consumers of content. For writers to benefit from these opportunities, they will need to stay informed and involved and learn how to deal with copyright issues and panicky publishers. If they can do this, their potential for gain is as broad as cyberspace.

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