Journal Interrobang's Journal: Some Things Copyright Is Good For
Awhile ago, either in one of my posts, or somewhere in my journal, I said that there were some instances where copyright was useful, and some when copyright was just no damn good. Looks like Thomas C. Greene at The Register beat me to it today, with his thoughtful article, "Some Truth About Copyright."
Helpfully, he makes the case against overwhelming copy protection (which is not even the same thing as copyright, and many of the arguments pro copy protection are not really related to copyright protection*), then goes on in the latter half of the article to describe what, exactly, copyright is good for:
The problem is that Eldred simply doesn't understand how publishing works. He's obviously never written a book. He doesn't understand how much time and money goes into producing a book; he doesn't know how authors' rights work; and he doesn't know, or care, that print-on-demand books earn nothing for the author. Essentially, he doesn't know how little money an author would make if it weren't for a nice, long copyright in his [or her! --ed] name. Indeed, most authors earn precious little as it is. If it weren't for the incentives the copyright law provides, far fewer people with good ideas would venture into publishing and our lives would be even poorer than they are.
Yes. Speaking as someone who freelances in the publishing industry, and has worked 9-5 producing writing as a work for hire (which means that even though I wrote the majority of the copy, I do not retain copyright, and therefore have to seek permission from the "hirer" to even put the work in my portfolio!), I know how copyright benefits me.
As Greene mentions (and I've explained elsewhere in one of my posts), "copyright" isn't one monolithic RIGHT, it's a bundle of rights that you (the author) or your agent sell on a one-off or some-off basis, usually by contract. Let's look at some examples.
Say the editor of "Northstars," a (fictitious) Canadian science fiction magazine, reads my Slashjournal entry "The Most Improved District". She likes the story, and sends me a letter advising me that "Northstars" will buy the First Canadian Serial Rights to "The Most Improved District" for, say 1.5 cents per word. I sell. They print the story. Then, the editor for (the fictional) "Ellison's," a big, large-circulation US SF magazine, reads my story in "Northstars," and decides he wants to print it in "Ellison's." He sends me a letter. Can I sell?
Yes, of course I can. What I've sold to "Northstars" is the right to print the story for the first time in Canada, so "Northstars" does not have the right to prevent another periodical from printing the story for the first time in a US publication.
If you're wondering where copyright comes into this, copyright in this case simply makes me the assignee and exerciser of all these different rights. Were I, for instance, to sell my (entire) copyright to "Ellison's," for instance, as SF writers used to (be compelled to?) do 40 or 50 years or so ago, then I would no longer be able to sell off the individual rights (First North American Serial Rights, First Canadian Reprint Rights, etc.)...
...and all the rights, the power to exercise them, and all the profits would go to "Ellison's," in this case, the entity to whom I sold my copyright. (In other words, if you sell your copyright, instead of the limited-term "sub-rights" such as I've mentioned, all your IP are belong to them, and there's nothing you can do about it. You are, in that case, 0wN3d!)
A Musical Aside: Where record-industry contracts are so damaging is in these fine details, really only understood by those of us with a first-hand grasp on how Intellectual Property Works For Us. See, musicians do not own the copyrights of the works they've produced (in the sense of performed, recorded). Under record-industry standard contracts, the label owns the copyright, which is the sum total of all those other smaller rights combined. Worse, under a standard music industry contract, the label can dictate to the artist what is good enough (or not good enough) to be released, and not release the artist from his or her contract until they have produced enough "bankable" material (in the label's opinion) to fulfill it. Worse, the artist does not even own the physical masters to the work he or she produces -- even the "unreleased" stuff the label sits on (until, sometimes, there's deemed to be a market for it, and then it comes out in a super-expensive box set -- remember those "lost" Beatles recordings?), possibly forever, depending on what the label judges to be the demand for it (quite a separate issue from what the public may actually want). Which is why record industry contracts, strictly in terms of copyright, rights ownership, and executive power, are little better than indentured servitude.
Fortunately the book & print media industry isn't quite so bad. For instance, even after you sign a book publishing contract, you still own the manuscript(s). Also (as Greene mentions), usually literary rights revert to the author after a certain period of time (and often merit what's called a "kill fee," which is compensation paid to the author by the publisher for not exercising the purchased rights within the set length of time) -- which record contracts don't do, and don't allow. So record industry gripes are specific record industry gripes, and not germane to any other industry in specific (as literary industry gripes are probably not germane to the comic book, fine arts, or movie scoring businesses).
Now Back To The Books: Where the book industry falls down is in the scenario Green doesn't show you -- a problem I wrote about in an article of mine called "Speculative Futures on the Literary Commodities Market," which is to say, the Vanishing Mid-List, and the Publishers' Law of Diminishing Returns.
Here's Norman Spinrad on the subject:
"Mid-list" being defined as anyone not a "marque" writer with a record as a best-seller or at least a consistent 20,000 hardcover sales over the past several books. I was also told at one point, entirely erroneously, that no one publisher can kill a writer's career.
Wrong.
It's easy.
Here's how:
For years and years, it's been noised about that publishers have been consulting major chain buyers on the sly before making print run or sales goal decisions, even before deciding whether or not to publish a manuscript.
Now it's out in the open.
They do it. They admit they do it. They even admit that there are times when they give the chain buyers a look at manuscripts under submission for their thumbs up or thumbs down. ...
Here's how they make their decisions: Let's say a publisher is thinking of publishing HE WALKED AMONG US by Norman Spinrad. They consult the major chain buyers. "If we buy this book, how many will you order?" The chain buyer consults his computer. ... For the sake of easy math and argument, let's say the computer says they ordered 5000 copies
and sold about 2750 of the trade edition, a sell-through of 55%, the current industry average.
What does the chain buyer tell the publisher?
That they will order 2750 copies of that author's next book, max.
What does the publisher tell the author?
No sale.
Or, if by some miraculous happenstance, you think Norman Spinrad is a no-talent one-off (with that back catalogue?!), here's James Van Pelt from SFWA on the subject.
(By the way, pay no attention to the Spider Robinson link; he's got a contract with Tor now, and wants to let that immortal posting die, although I'm not allowed to quote him on that. However, he was firm on the point, and now I'm quite firm in my opinion that he's a sellout who whines about egalitarianism and talent being neglected by Tbe Art Business, and then is quite happy to become all Social Darwinist [as in the interview on The Space Channel] as soon as an opportunity comes along. Or at least that's how it looks from here, from the point of view of an ex-fan who was trying to do him a favour once...)
So with all that going on, and your chances of being a one-off in the publishing biz higher than ever, some form of copyright makes sense (I agree with Greene that print-on-demand books don't/won't make a cent for the authors.)...
...but to extend copyright from 75 years after the author's demise to practically for-freakin'-ever (to protect, may we suggest, the Holy Mouse) is simply ludicrous. To restrict fair use by enforcing copy protection (and calling it copyright protection) is beyond the pale. To deprive the commonweal of works that should have been long into the public domain is senseless, and culturally-depriving. (Wouldn't you like to see an annotated scholars' edition of Propaganda? Wish you could get your hands on some prints of those old Fleischer cartoons? I do!!!)
But on the other hand, I still like to get paid once in awhile, even for the stuff I do for fun.
* They like to tell you it's all about copyright protection, but it's mostly about control, and trying to wring more money out of the consumer. Oh, did you really think that all those artists get multiple cuts on consumer pay-per-use? If they do, I've yet to see evidence...
Helpfully, he makes the case against overwhelming copy protection (which is not even the same thing as copyright, and many of the arguments pro copy protection are not really related to copyright protection*), then goes on in the latter half of the article to describe what, exactly, copyright is good for:
The problem is that Eldred simply doesn't understand how publishing works. He's obviously never written a book. He doesn't understand how much time and money goes into producing a book; he doesn't know how authors' rights work; and he doesn't know, or care, that print-on-demand books earn nothing for the author. Essentially, he doesn't know how little money an author would make if it weren't for a nice, long copyright in his [or her! --ed] name. Indeed, most authors earn precious little as it is. If it weren't for the incentives the copyright law provides, far fewer people with good ideas would venture into publishing and our lives would be even poorer than they are.
Yes. Speaking as someone who freelances in the publishing industry, and has worked 9-5 producing writing as a work for hire (which means that even though I wrote the majority of the copy, I do not retain copyright, and therefore have to seek permission from the "hirer" to even put the work in my portfolio!), I know how copyright benefits me.
As Greene mentions (and I've explained elsewhere in one of my posts), "copyright" isn't one monolithic RIGHT, it's a bundle of rights that you (the author) or your agent sell on a one-off or some-off basis, usually by contract. Let's look at some examples.
Say the editor of "Northstars," a (fictitious) Canadian science fiction magazine, reads my Slashjournal entry "The Most Improved District". She likes the story, and sends me a letter advising me that "Northstars" will buy the First Canadian Serial Rights to "The Most Improved District" for, say 1.5 cents per word. I sell. They print the story. Then, the editor for (the fictional) "Ellison's," a big, large-circulation US SF magazine, reads my story in "Northstars," and decides he wants to print it in "Ellison's." He sends me a letter. Can I sell?
Yes, of course I can. What I've sold to "Northstars" is the right to print the story for the first time in Canada, so "Northstars" does not have the right to prevent another periodical from printing the story for the first time in a US publication.
If you're wondering where copyright comes into this, copyright in this case simply makes me the assignee and exerciser of all these different rights. Were I, for instance, to sell my (entire) copyright to "Ellison's," for instance, as SF writers used to (be compelled to?) do 40 or 50 years or so ago, then I would no longer be able to sell off the individual rights (First North American Serial Rights, First Canadian Reprint Rights, etc.)...
...and all the rights, the power to exercise them, and all the profits would go to "Ellison's," in this case, the entity to whom I sold my copyright. (In other words, if you sell your copyright, instead of the limited-term "sub-rights" such as I've mentioned, all your IP are belong to them, and there's nothing you can do about it. You are, in that case, 0wN3d!)
A Musical Aside: Where record-industry contracts are so damaging is in these fine details, really only understood by those of us with a first-hand grasp on how Intellectual Property Works For Us. See, musicians do not own the copyrights of the works they've produced (in the sense of performed, recorded). Under record-industry standard contracts, the label owns the copyright, which is the sum total of all those other smaller rights combined. Worse, under a standard music industry contract, the label can dictate to the artist what is good enough (or not good enough) to be released, and not release the artist from his or her contract until they have produced enough "bankable" material (in the label's opinion) to fulfill it. Worse, the artist does not even own the physical masters to the work he or she produces -- even the "unreleased" stuff the label sits on (until, sometimes, there's deemed to be a market for it, and then it comes out in a super-expensive box set -- remember those "lost" Beatles recordings?), possibly forever, depending on what the label judges to be the demand for it (quite a separate issue from what the public may actually want). Which is why record industry contracts, strictly in terms of copyright, rights ownership, and executive power, are little better than indentured servitude.
Fortunately the book & print media industry isn't quite so bad. For instance, even after you sign a book publishing contract, you still own the manuscript(s). Also (as Greene mentions), usually literary rights revert to the author after a certain period of time (and often merit what's called a "kill fee," which is compensation paid to the author by the publisher for not exercising the purchased rights within the set length of time) -- which record contracts don't do, and don't allow. So record industry gripes are specific record industry gripes, and not germane to any other industry in specific (as literary industry gripes are probably not germane to the comic book, fine arts, or movie scoring businesses).
Now Back To The Books: Where the book industry falls down is in the scenario Green doesn't show you -- a problem I wrote about in an article of mine called "Speculative Futures on the Literary Commodities Market," which is to say, the Vanishing Mid-List, and the Publishers' Law of Diminishing Returns.
Here's Norman Spinrad on the subject:
"Mid-list" being defined as anyone not a "marque" writer with a record as a best-seller or at least a consistent 20,000 hardcover sales over the past several books. I was also told at one point, entirely erroneously, that no one publisher can kill a writer's career.
Wrong.
It's easy.
Here's how:
For years and years, it's been noised about that publishers have been consulting major chain buyers on the sly before making print run or sales goal decisions, even before deciding whether or not to publish a manuscript.
Now it's out in the open.
They do it. They admit they do it. They even admit that there are times when they give the chain buyers a look at manuscripts under submission for their thumbs up or thumbs down.
Here's how they make their decisions: Let's say a publisher is thinking of publishing HE WALKED AMONG US by Norman Spinrad. They consult the major chain buyers. "If we buy this book, how many will you order?" The chain buyer consults his computer.
What does the chain buyer tell the publisher?
That they will order 2750 copies of that author's next book, max.
What does the publisher tell the author?
No sale.
Or, if by some miraculous happenstance, you think Norman Spinrad is a no-talent one-off (with that back catalogue?!), here's James Van Pelt from SFWA on the subject.
(By the way, pay no attention to the Spider Robinson link; he's got a contract with Tor now, and wants to let that immortal posting die, although I'm not allowed to quote him on that. However, he was firm on the point, and now I'm quite firm in my opinion that he's a sellout who whines about egalitarianism and talent being neglected by Tbe Art Business, and then is quite happy to become all Social Darwinist [as in the interview on The Space Channel] as soon as an opportunity comes along. Or at least that's how it looks from here, from the point of view of an ex-fan who was trying to do him a favour once...)
So with all that going on, and your chances of being a one-off in the publishing biz higher than ever, some form of copyright makes sense (I agree with Greene that print-on-demand books don't/won't make a cent for the authors.)...
But on the other hand, I still like to get paid once in awhile, even for the stuff I do for fun.
* They like to tell you it's all about copyright protection, but it's mostly about control, and trying to wring more money out of the consumer. Oh, did you really think that all those artists get multiple cuts on consumer pay-per-use? If they do, I've yet to see evidence...
