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Re: [d@DCC] Copyright, eBooks & Public Domain Sources

From: Russell McOrmond <russell _-at-_ c11.ca>
To: "General Copyright Discussions (questions, organizing, etc)" <discuss (at) list.digital-copyright.ca>
Date: Mon, 3 Oct 2016 18:36:56 -0300
References: <cff0bd43-b037-69bf-c04c-19071e9b3b12@psymon.com> <CAGUCw=n3qoxfn7AE_4mpwvq7Z=0Z2TFHyAD8Oa-T4NC7RuudQw@mail.gmail.com> <f9841591-5dc2-5066-86a0-a5e7f33d3b8e@psymon.com>

On Mon, Oct 3, 2016 at 12:30 PM, Ron Koster <ron@psymon.com> wrote:
>
> Now, does my making the merely occasional correction like that in a
> whole, long poem merit a declaration of "skill and judgement"? That I
> don't know -- I guess even if I think it does, that's still a judgement
> call on my part.
>

It is.  I have my own gut feeling on this, but it may not be your own.

I know you said you can't afford a lawyer, but if that is the case then
Copyright can't help you.  All copyright grants you is the right to sue
someone for doing an activity that you believe infringes on your rights.
If you never plan to exercise that right by hiring a lawyer, then you need
to ensure your business will work without that right.


That example actually came up on that other forum. The assertion there
> was that a film version of a book is "dramatically" different than
> merely revising or correcting a written work. If anything, there's been
> a quite adamant assertion by pretty much everyone else on that forum
> that my merely making "corrections" -- never mind improving formatting
> or any other design aspect -- just simply doesn't merit copyright at all
> for my efforts. :/
>

  I separated your question into two parts -- the question of whether or
not your contribution merits copyright on its own is separate from the
question of whether you can make a copyrighted work built upon the public
domain.  There are many who believe there really has been nothing else but
creativity that builds on the past, and that even having language to
express the new thing is itself building on the past.



That makes sense to me -- if anything, it seems ridiculously obvious. An
> analogy might be that if Porsche came out with some totally new,
> high-performance engine, that also gave great mileage, too, any other
> manufacturer can simply get their mechanics and engineers to "look under
> the hood" and easily figure out how they did it -- but that doesn't mean
> they have the right to steal that new invention for their own.


> Not to say that my ebooks are "patentable" in any similar way as that
> kind of product,



  You really don't want to try to mix concepts from patent law and
copyright law together.  Many of us reject the term "intellectual property"
partly because of the confusion between these quite different areas of law
that this language causes. That and the fact most people misunderstand what
is owned, and the impact of infringement on what is owned.



> but others over on that other forum seem to feel that
> if I make an ebook out of public domain material, then it's a veritable
> free-for-all if anyone else wants to come along, "steal" all my source
> code,


  Avoid the word "steal" if you want to understand the behaviour, and the
potential impact on your business.

  First - if there is no copyright granted for the new work, there is
nothing to own (and it is the copyright that is owned, not the work).

  Secondly, the best analogy between infringement of copyright and
something relating to tangible real estate property is trespass, not
theft.  You still possess and own what you did before (the copyright), but
someone "trespassed" upon what you owned without permission.  Whether that
trespass has any negative impact on you, or even if it has a positive
impact on you, is very specific to the scenario.  You might be offended,
but it is unlike "theft" where there is also a likelihood you were harmed.

  The relationship between copyright law and creativity is quite complex,
and if you get too tied up in the "property" language you end up harming
your own interests in being so focused on excluding others that there is no
incentive for those others to ever compensate you for your creativity.

  Most of the people I hear using the "theft" language around copyright are
people deliberately making business, legal and policy decisions that are to
the detriment of their own livelihoods.

  I realize that you weren't necessarily adopting that mindset yourself,
but I saw it so often when talking with fellow authors during the last
round of copyright consultations that I considered it to be the greatest
threat to the livelihoods of authors.



> and then go out and publish their own book under their own
> publisher's logo (and even charge money for something that I was happy
> to give away for free).
>


Given you can undercut their business, and if you are quite public in the
right communities at launch, how does that help them or harm you?  If
anything it would be an embarrassment to that publisher to be seen to be
stealing your thunder.

If you have already decided you don't have the money to take people to a
legal court, then plan early to win every case in the court of public
opinion.  Which, if you build a loyal customer base and reputation, will be
far more powerful than a legal court anyway.


I found that stance a bit infuriating, actually, that these people
> seemed to actually be advocating "theft" of others' efforts, rather than
> taking a stand in favour of protecting them. :/
>

  You seem to be assuming that copyright always "protects" authors and
other creative people.  As an independent author, primarily of software,
that has not been my observation.  Many of the recent changes to copyright
law, most notable "technological protection measures" (TPM), "protects"
specific businesses practices which are harmful to the interests of
authors. Specific technology companies have made false claims about what
their technology does and who it serves, and far too many authors have
fallen for it and have effectively given up control of their own creative
processes as well as business and delivery model options.

  They may also be suggesting that you be careful what you ask for.  Is
your business built on ever stronger copyright, or is your business
actually built upon the limitations and exceptions to copyright?  Will you
be enhancing and delivering other works derived from the public domain?  If
copyright were "stronger" and only required "sweat of the brow", would the
source material that you are trying to derive from even be accessible for
you to build upon?

  What if those calling for a replacement of copyright with an access right
ever win?  Then the access right plus contract law would wipe out all the
limits and exceptions to copyright your business is built upon.

  There were a huge number of "access right" evangelists during the
copyright consultations, and they felt the "access control" aspects of the
TPM section of C-11 was their foot in the door.  This was a major change
from the requirements of the WIPO treaty which only discussed
copyright-tied "use control" technological measures.

  The new access right in C-11 currently only applies to encrypted digital
works, but for those works it is effectively a replacement of copyright
with accessright+contract.

  If the access rights folks win, in a few generations a business like
yours could never exist.  You either work for the few large AccessRight
firms or have no legal way to build on the past and participate in culture.


> If it is helpful, I wrote a blog article on a partly related topic:
> > http://mcormond.blogspot.ca/2013/06/why-is-license-
> required-for-canadiana.html
>
> Interesting to read your thoughts there. Indeed, it was suggested in
> that other forum that I give my book a Creative Commons license,


  That wasn't the part I suggested was similar.

  It was how Canadiana as an entity needs to encourage people to sign up to
access works which are in the public domain in order to fund our
operations. Some believe that copyright is required for an online business
like this to exist, but we don't agree.  Not only are we not trying to
advocate that the photographing of public domain material  (which does
require skill and judgement, just not artistic skill and judgement -- it is
a technical process that from an originality perspective is more like sweat
of the brow), but we are clarifying even to those who believe this type of
work should be copyrighted that it is as a minimum in a creative common
license.

  For our customer base, the lack of exclusivity will make them more likely
to want to pay us -- not less.

  That is a matter of understanding your business and your customer base,
rather than blankly believing that copyright will protect you (rather than
protect someone else from you), or that more and stronger copyright will
somehow translate to better compensation for creators.


And so now I basically just do it for free, give my books away for free,
> and do it simply for the love of doing it, just to be creative. And
> that, for me, is I suppose the greatest satisfaction that I get from
> doing this. :)
>

  Were you going through a reseller, or doing this on your own?  Careful
with some of the resellers, as many ebook resellers will add restrictions
to the ebooks that lower the value of the book and make it less likely
people will compensate.

  Read some of the writings by successful authors like Cory Doctorow when
they talk about epublishers, and specifically about the real impact of DRM
on the ebook marketplace (hint -- it does nothing to reduce copyright
infringement, and most evidence suggests it lowers the value of the work
while providing incentives to infringe).


> Be a business person, not a copyright evangelist, and you'll likely make
> > far more money.
>
> Good advice, too -- it HAS been somewhat exasperating having these, uh,
> "discussions" over on that other forum, trying to assert that I should
> get credit for my efforts. But I guess I can see that it's really quite
> a difficult thing to "prove," that one has rights (copyright) over a
> public domain text, even if that work has been corrected and emended.
>

  You appear to be assuming that copyright is what gets you credit for your
contribution.  This is why I'm suggesting you stop focusing on copyright,
and instead focus on reputation.   Reputation and a loyal fan/customer base
is far more powerful for independent creators than copyright, especially
for those whose business is enhancements of the public domain.


amounted to being a lifetime of acquired "skill and judgement." Even
> that probably doesn't amount to much, if such corrections were only few
> and far between in any particular text. :/
>

  The question of originality is an artistic one.  If your skill is in
understanding history, then copyright may not be the best tool for you to
be focused on.

Much to my surprise, after doing a little searching on the subject, it
> would seem that the famous 1925 film of the same name (starring Lon
> Chaney) is now in the public domain -- my surprise about that is because
> I would have thought that surely MGM would have renewed their copyright
> on that film. As far as I can tell, this doesn't seem to be the case.
>

  Remember that you live in Canada, not the United States.   Much of that
conversation about renewal/etc only applies to pre-Berne US copyright.
Please look at http://www.digital-copyright.ca/chronology for some of the
history of Canadian copyright law.  You'll note that Canada was under the
Berne convention even before we had our own Copyright law separate from UK
law.

  The term of copyright is also different in Canada than the USA, and we
are currently under the more common Berne standard of 50 years after death
of creator (which for corporations means a fixed 50, as they don't "die").


I have a whole slew of nice, high-resolution production stills, etc.
> from that film, which were given out as promotional material back when
> the film came out, and which would be wonderful to use as illustrations
> in my book. Can you imagine any reason why I might have any issues
> regarding copyright in just going ahead and using those in my book
> (without having to go through the palava of first seeking permission
> from MGM -- which, I can easily imagine, might be a request that they
> might just simply ignore and not respond to)?
>

  Offering access to stills of a public domain work.  It's ground that my
workplace believes is extremely solid, so I can't see you having any issue
:-)

  Again, I'm not a lawyer.  Berne convention (and Canada kept that, last I
looked into it) lists a fixed 50 years for cinematographic works, but some
have tried to debate that the death of directors, producers, etc should be
taken into consideration for the term for aspects of the work.

-- 
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>

Please help us tell the Canadian Parliament to protect our property rights
as owners of Information Technology. Sign the petition! http://l.c11.ca/ict/

"The government, lobbied by legacy copyright holders and hardware
manufacturers, can pry my camcorder, computer, home theatre, or portable
media player from my cold dead hands!" http://c11.ca/own
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