As a means of giving this some context, I have been wanting to share this chapter for a while, but copying and pasting is a lot of work. I hesitated to share it at all because I thought maybe, this chapter that was removed from my thesis, would be worthy of being published in a journal. But, I think it would take a bit of updating, and I really just don’t have the time to put into it.
This was written a few years ago, so some content might be out of date, Lord help us all with Brexit (this was written pre-Brexit), so do keep that in mind as you read. I hope there’s still some useful stuff here for you.
Who owns the book and digitally social content?
In this article, I will be specifically looking into the questions of who owns the book and socially created content. Beginning with a brief overview of copyright law (focussed on the UK and EU Member States where necessary), I will go into more depth on the exhaustion of copyright, the place of copyright in eBooks, licensing agreements, Digital Rights Management Systems, open access copyright, and the issues raised around power dynamics in copyright. The discussion of digital rights will serve as a background and starting point for exploring the relationship between digital rights and user generated content in a social network and how that user generated material can be used in a published product.
Copyright
Before the rise of the digital technology there were, arguably, more simplified rules of thumb for dealing with copyright and sales of printed products. Copyright laws in the United Kingdom hold that the copyright of a work usually remains with the author of the work and prevents any unauthorised copying, distributing or making public, secondary infringement[1], or infringement of the moral rights of the copyright holder. According to the directives of the Berne Convention (1886, most recently revised in 1979), which deals with copyright in EU member states, the term of copyright lasts for the life of the author plus fifty years; however, in the United Kingdom the term is life plus seventy years, a policy that is in line with the US standard. The UK also grants works without authors copyright for seventy years from the point the work is made, or made available to the public (UKGOV, 1995).
Though copyright protects works, it should be noted that it “only protect[s] the expression of ideas, not ideas themselves” (Stokes, 2014, pp 05), leaving copyright law somewhat open to interpretation, especially considering that the UK does not have a general ‘fair use’ policy, and instead recommends “carving out specific exceptions” (D’Agostino, 2008, pp 338). These exceptions include research, criticism/review, and reporting, and in 2013, they were updated to include better digital adaptability for software and databases.
In order to publish a book by the traditional author – agent – publisher model, an author enters into a contract with a publisher, granting the publisher the right to create, market, and sell specific formats of their work in return for remuneration, which is dependent on the specifics of their contract. Publishers can go on to sell the rights to publish a work across borders, in translation, and in other ways. Once the physical book has been published and sold, the exhaustion of copyright, or “first sale doctrine” comes into effect, and the copyright holder can no longer control the future distribution of those copies.
Copyright Exhaustion or First Sale Doctrine
Copyright exhaustion “emerged in the early twentieth century” (Rub, 2015, pp 745) based on the US court case Bobbs-Merrill Co. v Strauss where the publisher sold wholesale copies of The Castaway, a novel by an American diplomat’s wife, Hallie Erminie Rivers, to R. H. Macy & Co. with the printed internal notice that “The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright” (JUSTIA, n.d.). Macy’s went on to sell the novel for below the one-dollar price, spurring Bobbs-Merrill Co. to charge them with copyright infringement. The US court decided in favour of R. H. Macy & Co. citing the fact that the price-lock was not part of a contractual agreement between publishers and vendor, and therefore could not be enforced as copyright infringement. This case led the courts to implement the notion of copyright exhaustion.
In the pre-digital days, copyright exhaustion was a more straightforward piece of legislation that meant that after first purchase of a work, the buyer could keep, gift, destroy, or sell a book on without needing to seek permission from the copyright holder. Countries such as the US have international copyright exhaustion, while others implement national or regional exhaustion rights according to their trade agreements.
It is worth noting that the Agreement of Trade Related Aspects of Intellectual Property Rights (TRIPS), an agreement organised by the World Intellectual Property Organisation (WIPO) to better harmonise international Intellectual Property (IP) Rights, does not enforce an overarching copyright exhaustion agreement between member nations. Instead the WIPO states that IP exhaustion has “different implications depending on whether the country of importation, for reasons of law or policy, applies the concept of national, regional or international exhaustion” (WIPO, No Date), and “agreed that each WTO Member would be entitled to adopt its own exhaustion policy and rules” (Ghosh, 2013, pp v). Both the UK, in Section 18 (3)(a) of the 1998 Copyright, Designs and Patents Act, and the EU, in the Directive 2001/29/EC of the European Parliament and of the Council – broadened to include software in 2009/24/EC – have codified regional European Economic Area (EEA) exhaustion of copyright to best balance the interest between IP protection and free trade. A book bought in the EEA will trigger copyright exhaustion throughout the EEA member nations, meaning that purchasing a book in Spain to resell in England is not an infringement of copyright, as exhaustion has already been triggered.
When products such as books, films, and music became digitised, where files are easily uploaded, transferred across the Web, and copied with relative ease, the dynamics of exhaustion of copyright changed. Questions arose over ownership and transfers of digital works, with the most well-known cases, such as the music industry’s A&M Records, Inc. v Napster, Inc. (2001) and the film industry’s MGM Studios, Inc. v Grokster, Ltd. (2005) (both US-based cases) being fought out in the court systems, ultimately deciding that peer to peer sharing without appropriate licensing made the companies (or individuals) liable to copyright infringement and in violation of the right of distribution (Wiens, 2001). Though “There is no such thing as an ‘international copyright’”, and “Copyright is a national right…It is clear law on both sides of the Atlantic that a person who directly copies a digitised work or communicates it to the public without the permission of the copyright owner will infringe copyright” (Stokes, 2014, pp 08 & 163).
The issues surrounding digital and traditional copyright get more complex when taking into account how easy it is to digitally cross international boundaries. As an example, consider Sue, who lives in London and uses her American bank account to purchase an eBook from a small, South Korean publisher. She downloads the book file to her computer, before transferring it to her e-reader to take on holiday in Spain. In transferring, she now has more than one copy of the book file. Is this copyright infringement? If so, what country would have jurisdiction?
In the UK there is no digital exhaustion of copyrights, and the Information Society Directive Document 2009/24/EC clarified that where a work is transmitted over the Internet (such as a download or streamed work) then copyright exhaustion also does not apply. In his seminal text Digital Copyright: Law and Practice, Stokes lists seven challenges to digital copyright that all play a role in how digital copyright exhaustion works. These challenges include:
- Ease of replication
- Ease of transmission and multiple use
- Plasticity of digital media
- Equivalence of works in digital form
- Compactness of works in digital form
- New search and link capabilities
- No human author (sometimes) (2014, pp 11-12)
Stokes doesn’t advocate specific ways to overcome these challenges and instead focuses on the facts of the law and its application, while other scholars, such as Rub, believe that “copyright exhaustion should not be extended to digital works. Because digital files can typically be easily and indefinitely transferred” (2015, pp 747), which could, in turn, harm the competitive market.
Villasenor contends that though it “seems reasonable, therefore, to contemplate some expansion” (2013, pp 13) to apply “wholesale expansion” (2013, pp 13) of digital copyright exhaustion would be a mistake. Similarly, Asay argues that laws should resolve “these issues in a manner that preserves first-sale rights rather than eviscerates them” (2013, pp 18).
I agree that to overly simplify the issues of digital copyright exhaustion by allowing for the doctrine of digital first sale to apply internationally in one swoop would have potentially negative consequences. But, this is a rapidly changing area of technology and the copyright laws that surround it need to catch up, including re-working the complicated licensing laws that will be discussed later in this section.
In the area of digital copyright exhaustion, I align myself with scholars such as Reis, who suggests that “Customers should be allowed to resell or transfer purchased digital content” (2015, pp 206), and Horan who looks closely at the important US case of Capital Records LLC c ReDigi Inc. (2012) and calls for a fresh look at digital copyright exhaustion and the technology developing around the issue.
ReDigi is a company that allows for resale of digital music. Users register, upload their music, and can receive payments for the sale. ReDigi goes a step beyond bricks and mortar stores in that it also gives a portion of the profits to the original copyright holder. The US court ruled against ReDigi, as their early software required a copy of the digital item to be made when it was uploaded and did not guarantee that a user deleted their original file. Since the case closed, ReDigi has redeveloped their software so that it transfers without copying and warns users to delete their original copy. Though this case is specific to the music industry, it should be noted that large eBook sellers such as Apple and Amazon, “were both recently rewarded patents that would allow them to use technology remarkably similar to ReDigi’s to open up their own secondary digital marketplaces” (Horan, 2014, pp 1858). With a growing demand for secondhand digital goods, the publishing industry needs to re-examine the boundaries between ownership and licensing of digital products such as eBooks.
Licensing Agreements and DRM
When a consumer buys a physical book it is theirs to do what they will with; this is the principle of exhaustion of copyright discussed above. But, when a consumer purchases a digital book or app, they are not usually aware that purchasing the item does not give them ownership rights over the digital files. When buying digital products from online retailers such as Apple or Amazon a consumer is only receiving a license to use that content in the ways specified by the terms of service, which often imposes strict limits on the ways digital files and the accompanying hardware (Kindle, iPad, etc) can be used. Unapproved uses include transferring it to another device, selling, leasing, loaning, or distributing the software or content of digital files, and may result in the consumer losing access to the file and their account.
Language used by digital booksellers such as Amazon’s Kindle can confuse a user, as many of them use the term “purchasing” when in fact, further in the Terms of Service specifications, they specifically state that “Content is licensed, not sold, to you by the Content Provider” (Amazon, 2015, section 1). Other retailers such as Apple, have made it clearer in their terminology that products “are licensed, not sold, to you” (Apple, 2015). Licensers are able to change the usage rules and even revoke access to a purchased product. This usually happens when the licenser (Apple, Amazon, B&N, etc.) receives take down notices for digital content that users have already ‘purchased’; sometimes the user receives a refund if their ‘purchased’ items have been removed from their devices.
Where the music and motion picture industries are better able to capitalise on additional revenue streams (tours, merchandise, etc.), publishers often do not have these beyond the original sale, as many readers tend to keep books they plan to re-read and digital books stay in the reader’s archive. In fact, since releasing iTunes, Apple has moved to offering their music choices as Digital Rights Management System (DRMS) free, but they still impose rather strict DRMS on their licensed eBooks. By licensing a digital product, instead of selling it outright, the publishers hope to remove what Lipton, in his work on digital copyright, calls the “threats to digital publishing from unbridled copying and distribution”, which he says “are arguably greater than the threats to other digitized industries” (2014, pp 595).
Publishers are able to better control the piracy of eBooks through their licensing agreements which restrict how licensees/readers can access the books. To ensure that their product cannot be tampered with, publishers include DRMS clauses in their terms of service that restrict the platforms on which the books can be viewed, and, in the case of Apple, on how many devices the book can be read on. The major players in the eBook marketplace have DRMS in place, many “publishers insist on DRM encryptions in order to discourage copyright infringement” (Trivedi, 2010, pp 926), but Amazon is one of the few marketplaces that made allowances for publishers to choose their own options and levels of DRMS.
For a consumer to breach a DRMS on an eBook is in direct violation of the contract (terms of Service) that they agreed to when accessing the marketplace. Amazon, Apple and others make use of Click Wrap licenses that require users to read through the terms of service and agree by clicking an icon or box before they can continue to purchase the item; but, as Reis notes, “Many people do not take time to read the terms of use” (2015, pp 181). Several scholars have explored the reasons for this in detail (see Eisenberg, 1995 & Donthu & Garcia, 1999). Once such possibility is that user Terms of Service agreements are too long and wordy and are not easily accessible for a general user. Law scholar Looijen estimates that if a user were to read the terms of service, that are liable to change without notice to the user, of four of the major websites[2] every day to keep up, they would “need to interpret 37,373 words of convoluted legalese per day to keep appraised of the legal obligations” (2010, pp 559), which no general user has the time or energy to do.
Other factors include social and cognitive reasons that rely on the user focussing on important terms and ignoring the finer print (Hillman & Rachlinski, 2002, pp 452). This can be down to the mix of marketing and contract often found within the click-wraps; the use of casually sounding pronouns to describe ‘you’ and ‘us’ instead of licensee and licensor, respectively, can be disarming. Users of social platforms have also been considered more impatient and have “become accustomed to speed and instant gratification” (Hillman & Rachlinski, 2002, pp 479), and therefore often consider that whatever clauses in the contract might become a problem later would be overturned by a court if it came down to it.
If a user had carefully read the Terms of Service, then they would know that beyond the restrictions placed by the DRMS, there are also criminal repercussions should a user remove any notices or “bypass, modify, defeat, or circumvent security features that protect the Kindle [and other providers’] Content” (Kindle, 2015). This applies even if a user is simply trying to read a book they ‘purchased’ through Amazon on their iPad without the appropriate Amazon-approved app.
A further concern over DRMS is the potential loss of privacy, explored in detail by Bygrave in his article on “Digital Rights Management and Privacy in the EU”, who highlights that intermediaries, such as publishers, often push “DRMS with the potential to facilitate an unprecedented degree of surveillance of consumers’ reading, listening, viewing and browsing habits” (2003, pp 418). This can provide fantastic reader data that allows companies to track which books are being read, how quickly and if readers finish the book. In addition, some DRMS, such as Apple’s overarching DRMS, work together with third party providers to access analytics, which seems to be an invasion of a user’s privacy. A recent example of new technology gathering user data is Amazon’s policy of paying author royalties per page read in their Kindle Unlimited programme (2015) – which is governed by the terms and conditions of the Kindle Store, wherein a user agrees to the stipulations of the license, including the DRMS, which allows for data to be gathered.
But large corporations are not the only ones seeking to employ such data-gathering technology to enhance the reading experience. 2014 startup The Pigeonhole combine eBooks and gamification to suggest books to readers and to closely monitor and congratulate their reading habits. At east step, they offer social sharing opportunities and will send readers friendly prompts and reminders if they stop reading. Contacting readers about their reading habits is only a slight extension of what larger corporations do, in that The Pigeonhole will use their knowledge of a reader’s place in the book to encourage them to keep going, that the scary/sad/etc. section they are in only lasts x number of pages more. Of course, data gathering works both ways and a company can sell information back to the publishers to feed back to the authors, or on to advertisers who want to target specific demographics.
Unless the current models of publishing alter to accommodate the changing way readers buy, use, and re-gift digital books, it will remain in the publisher’s best interest, financially, to maintain a strict DRMS. In doing so, a tension is created between readers who expect their digital books to have the same potential of sociality as their print books, and the publishers who wish to restrict the free movement of digital books across buyers, technologies, and platforms. The underlying power struggle inherent in the potential sociality of digital books informs the way we must approach the discourse of the book as it relates to DRMS and the push for books to become social.
Overcoming DRMS Issues and Digital First Sales
Implementing DRMS on eBooks means that a “User could not invoke the first sale doctrine as a defense to reselling [or, indeed, gifting] the software” (Reiss, 2015, pp 183). As early as 2005, groups such as the Electronic Frontier Foundation (EFF), headed by outspoken proponent of freedom of speech and digital privacy Cory Doctorow, were speaking out against DRMS in eBooks, claiming that DRMS retards innovation, stifles research and free speech, allows DRMS to override local copyright laws, prevents the re-sale of goods and information, and cannot be self-sustaining as it requires anti-circumvention laws to be in place in order to enforce the DRMS (EFF, 2005). Phillips states that, “It is possible that some short-term gains can be made in the battle against piracy and illegal downloads, but sever controls are not likely to last long” (2014, pp 51), and breaking ‘impossible DRM’ systems is like candy to a hacker. With this in mind, the EFF goes so far as to suggest the abolition of DRMS and advocate the uptake of open licensing and business models that do not potentially criminalize the customer.
Shepard goes even further in his proposals to change the digital marketplace of eBooks, by suggesting a reshaping the laws of copyright themselves, necessarily altering the subsequent position of DRMS. He proposes that authors should be able to “more quickly reclaim rights they have temporarily granted to third parties, such as publishers, during the term of copyright”. He further suggests that laws should “reduce copyright duration for certain kinds of works, including books” (2104, pp 737) and cites the sharp decline in sales over time for the vast majority of printed books as supporting this alteration. Not only would such policy change be difficult to implement in each country, it has the potential to discourage authors from creating new works with the fear that they could quickly be available in the public domain, and no longer generating a profit or royalties. In addition, this would have further implications for publishers and booksellers who rely on revenues generated by backlists and the long tail.
It would alter the power dynamic between publishers, authors, booksellers, and readers by taking the power from the authors and certain publishers and shifting it to the booksellers and publishers who can best provide versions of out of copyright works to the market. However, the reader, could find themselves with more options for obtaining both digital and print copies of work at staggered price-levels that are dependent on the specific item at hand, paying more for limited editions and less/nothing for pdf downloads. Publishers could also tip the power scale in their favour by creating publishing models that offer bespoke versions of out of copyright works in a variety of formats. In the call for drastically reducing the copyright period, it is inevitable that large organisations such as Amazon and Google Books will gain an even greater influence over the market.
Reiss (2015), Horan (2014), and Lipton (2014) take more of a middle ground approach by suggesting that there should be more transparency in digital eBookstore terms of service, which should include more clear explanations of the penalties for breaching copyright laws and what exactly that means in terms of the digital environment. While I agree with this general rule of thumb, I would push further, as Horan does, in calling for a re-evaluation of copyright exhaustion in the digital environment. Unlike Shepard, I would not advocate reducing the term of copyright from seventy years from author’s death to the 1790 (US law) provisions of a renewable fourteen year term (Shepard, 2014, pp761). As can be seen in the examples of ReDigi, Apple, and Amazon patents, the technology now exists to be able to ensure that digital copies can be sold, traded, and moved about without infringing copyright. As such, in order to keep up with the advances in technology, digital copyright law in the UK and EU should be altered to include an exhaustion of copyright with provisions that the authors receive fractional remuneration for further sales. This would allow publishers and authors to continue to generate a profit on items that do not deteriorate with time. The cheaper purchase prices of ‘second hand’ digital books could also entice readers to delve further into a publisher’s brand, authors, and characters, creating brand and author commitment and new revenue streams.
One way to achieve adherence across the board and to better enforce digital copyright law is for the publishing industry to adopt a single working standard of eBook programming, much as the music industry has done in adopting the MP3. The International Digital Publishing Forum is currently working as the global trade and standards organisation for ePublishing and have developed EPUB, which formats and packages enhanced web content and is used by Apple and Barnes & Noble, among others. But, instead of all eBook publishers adopting this standard, publishing has several in use: Mobi, ePub, AZW, and PDF, which vary across platforms, making works in one format sometimes incompatible on other devices or only compatible through a specific app. In order for publishing and copyright to advance apace with technology, the industry needs to pull together and implement a single, standard format, or, at the very least agree on DRMS that allow each platform to deliver the book to readers. However, since the largest eBook seller, Amazon, uses Mobi, a single format for all eBooks may be years away.
Copyleft, Open Access, and Creative Commons
Though the previous sections discuss the ways that copyright is locked up and protected by DRMS, it is not all doom and gloom. Authors do have the choice of how they present their intellectual property and are not entirely trapped in a system of copyright that has trouble moving forward in the digital age. For instance, the concept of ‘copyleft’ was first introduced in the 1980s. It is a broad term that implies a “general method for making a program (or other work) free, and requiting all modified and extended versions o the program to be free as well” (GNU, cited in Stokes, 2014, pp xix). Usually Copyleft is implemented with a specific license, the most common of which is the GNU General Public License, which “protect your rights with two steps: (1) assert copyright on the software, and (2) offer you this License giving you legal permission to copy, distribute and/or modify it” (GPL, 2007, Preamble). For those authors writing a fictional work within a piece of software, such as a interactive story-game, the GPL may be the best license, but for general written works, Creative Commons are often a better fit.
Creative Commons “is promoting the use of various ‘Creative Commons’ licenses that apply some of the principles of open source software licensing to non-software content: text, images, videos, etc, in order to allow users to retain certain rights but also create a space, a ‘creative commons’ for others to make use of their work” (Stokes, 2014, pp240). For authors and publishers who choose to work within the Creative Common licenses, there is an abundance of choice that can either place the work completely in the public domain or fully lock it up in copyright. The Finch Report helpfully gives an overview of Creative Commons licenses and breaks them down into four types that can be mixed and matched according to specific needs: Attribution (BY), Non-commercial (NC), No Derivative Works (ND), and Share-alike (SA) (2012, pp 119).
Open access has altered the academic journals industry (see Bhaskar, 2013; Mukherjee, 2010; Blair, 2014; Schmidt, 2010) and has certainly changed the way images have been used and shared in the digital age. Comparatively, it has had a more muted effect on fiction publishing, in the traditional sense. In her research on Creative Commons licenses in publishing Kim compares the concepts of private property and Creative Commons and that found Creative Commons “assumes that creative works build on the past” (2008, pp 202) and its proponents accept and embrace this aspect of building on others’ works, echoing McLuhan’s concept of looking at new media through a lens of older media. Her further findings indicate that using one form of copyright may not “solve the conflict” (pp 203) between IP privacy and open access Creative Commons, but I believe it is a useful tool to have for those authors who write for the love of writing and have no expectations of financial remuneration. However, traditional publishers often feel they need the protection of more restrictive copyright laws in order for a work to maintain its commercial viability, something Dan Gillmor, the scholar and author of Mediactive, discovered when searching for a traditional publisher who would publish his book under a non-restrictive Creative Commons license (Gillmor, 2010 pp 177). Gillmor eventually self-published his book to preserve his Creative Commons ideal, even after showing that his previous book, We the Media, still pays royalties, even though it too was published online for free at the same time it went into print.
As early as 2006 UK publishers were dabbling with Creative Commons licenses and well-known authors such as Cory Doctorow, Eric S. Raymond, and Lawrence Lessig have published works using the license, but the list of books published with Creative Commons by UK publishing companies is still quite small. This is due to commercial publishing models being unconvinced that “giving free access to content can be a viable future publishing model” (Michel qtd in Bury, 2006). I agree that this is true, however, there are other means of monetising fiction, including staggered delivery dates on chapters, such as author Ray Connelly did in 2010 with his novel The Sandman. Here he delivered chapters week by week requiring those who want to read the last chapters to purchase the completed work on Amazon. There are also film and subsidiary rights (Pride and Prejudice and Zombies, Atonement, Fifty Shades of Grey, etc.) and author events (book festivals, openings, public appearances, etc.) that could boost sales and deliver effective marketing strategies, bringing in revenue. In fact, Gillmor argues that it is precisely the fact that he published We the Media online under a CC license at the same time that it went into print that it became so widespread and people wanted to have a printed copy for themselves.
Though it has been ten years since Creative Commons was set up in the UK, there is still a lot to be learned about the ways it can be used by publishers in maintaining a viable business model. The Creative Commons website offers a set of frequently asked questions for publishers wishing to use Creative Commons licenses in their business models. One question goes directly to the heart of the matter: making money using Creative Commons licenses. Creative Commons suggests publishers make use of the Non-Commercial licenses to maintain control over the distribution of their work, where they can still sell the product on, and sometimes use a freemium model. In 2011, the organisation published a document called The Power of Open, which features case-studies of artists, businesses, and organisations who use Creative Commons to tip the power dynamic within their industry in their favour (FAQ, 2015).
The Power of Copyright
If we look at the totality of copyright, its role in protecting intellectual property within powerful countries, and trade agreements, we can begin to see ways that countries leverage copyright in their treaties as a means of manipulating power relations. In addition to TRIPS, several countries bring into play bilateral and regional trade agreements and plurilateral intellectual property, trade, and investment agreements (Yu, 2015, pp 85). These add additional conditions on top of TRIPS, known as TRIPS-plus and TRIPS-extra. In the immediate sense, copyright exhaustion advised under different agreements allows brick and mortar used bookstores to exist and for the general user to buy and gift second-hand books at their discretion. In a wider sense, such trade agreements, “because of the power asymmetry in the international trading system […] could create perverse incentives for the more powerful parties to ‘advance self-interested agendas’” (Yu, 2015, pp 93), which could, in turn, hinder or exploit the creators which copyright laws were originally intended to protect.
An example of potential power play has come to the fore in recent years where WIPO has facilitated the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVT). This treaty would allow for easier access to books for the visual impaired, allowing books to cross borders, lowering costs and getting more books to the blind of many countries. Like all WIPO treaties, MVT doesn’t make a treaty a law; it sets out minimum standards that each member nation must then sign into law. Though many member states have signed the treaty (including the US, EU, and UK), only ten of the required twenty countries have since ratified it into their national laws[3]. This is due in no small part to the lobbying of organisations that rely on copyright for commercial trade. Groups in the US, such as the Publishers Association of America and the Motion Picture Association of America, have campaigned hard against some of the clauses, many of which revolve around ‘fair use’. Likewise in the UK and EU, groups have banded together to block the EU’s ratification of the MVT on the basis of what Richard Mollet, CEO of the UK Publisher’s Association explains as a situation:
where you take an edifice like copyright law, with all its complexities and all its layers, and you start unpicking it for the very good purpose and the absolutely right purpose of the visually impaired, one has to be careful that you don’t make changes which people who do have, I’m afraid, nefarious motives would try and exploit. (2013, 16:00)
In 2003, former US Trade Representative Robert Zoellick stated that the US was a country that would not wait for all other countries to fall in line and would “move towards free trade [including IP] with can-do countries” (2003, para. 12). Scholars, such as Dinwoodie use this ‘can-do’ attitude a means of discussing how countries with economic power use that power to finesse copyright legislation into place and can “enact laws that have an international dimension or motivation” (Dinwoodie, 2007, pp 359) of a commerce-based clause. Karayanidi, on the other hand, suggests that the power complex inherent in drafting IP trade agreements between developed and developing countries doesn’t leave the developing countries powerless. Instead, she argues that they can form coalitions against the stronger nations or use what she calls the “paradox of weakness” where the developing country uses its supposed weaknesses (lack of technology, being the most notable in this instance) as a bargaining strength (2011).
In an increasingly global village, the complexities of power will only become more saturating, but looking at the genealogy of power in copyright law – from the trade agreements and the economic value publishers bring to a country, right down to publishing houses and readers – we can better understand the relationships between the discourses of the book, the publishing industry, and copyright. As a way of moving forward, such an exploration must involve the study of digital copyright, power relations within copyright, and the place of social media platforms within the wider discourse of publishing.
Social Media and Digital Copyright
As early as 2009, Penguin Books published Twitterature: The World’s Greatest Books Retold Through Twitter, and in 2014, Facebook began publishing articles directly to the platform in their reader’s newsfeed[4]. Social media platforms have always been a place to push the medium of writing and publishing, and as they’ve become more popular, writers have embraced them as platforms on which to tell stories. Each genre of book, including photo-based coffee-table books, poetry, and children’s books, have social media platforms that work best with them.
The Platforms and their Terms of Service
Pursuant to the laws of digital copyright in the US and UK, Facebook has a clause in their Terms of Service which specifically states that “You own all of the content and information you post” (Facebook, 2015). Likewise, Twitter and Wattpad also provides clear statements that “You retain your rights to any Content you submit, post or display on or through the Services” (Twitter, 2015), and that users maintain “ownership rights in your User Submissions” (Wattpad, 2015).
What this means for publishers is that they can seek out publishable fiction on social media platforms, as long as the user’s settings are public, and that they can then contact the user to arrange contracts and details. They can do this by using specific search mechanisms with hashtags they specifically develop for the purpose, or that are already associated with fiction such as Twitter’s #Twitterfiction. Facebook also allows for hashtag sorting. Wattpad, on the other hand, lends itself more to a traditional publishing method, with the whole site acting as a slush pile that publishers can sift through with the goal of creating a traditional print/eBook version.
Wattpad has become the one of the world’s largest slush piles. It has over forty million monthly unique users, and has already made an impact on the publishing industry. In the Philippines, for example, “Wattpad writers are celebrities” (Gardner, 2016) and large publishing house Summit Media regularly buys the rights for Wattpad content to repackage into print and eBook editions, with many Wattpad stories also being translated into film and television. Closer to home, Wattpad provides a Q&A section in their website that helps their writers to navigate the potential for being contacted by a publisher. On this page they provide a list of “trusted publishers who have worked with Wattpad and Wattpad writers” (Wattpad, 2016), including the big names in publishing such as: Penguin Random House, HarperCollins, Simon & Schuster, Macmillan, and more. Wattpad also provides a forum with peer-to-peer resources on your Wattpad publishing journey.
The negative aspects of using socially generated content
A negative aspect to seeking out fiction on social platforms is that most platforms’ Terms of Service include clauses that state “When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others)” (Facebook, 2015). Twitter has a similar clause and Wattpad retains a copy of a user’s content even after it has been removed or deleted.
One way to overcome published content being given away for free on a social media platform is for publisher to include in their author’s contract a clause that requires the author to remove the original content from their social media feed. While this would clear the writing from the open web, it would stay within the cache of Facebook and Twitter, and would not be removed if it was shared onto others’ feeds. A second way for a publisher to handle the issue of traditionally publishing content that has already been published on a social platform is to develop a marketing strategy that incorporates the social platform and persona of the author to drive interest and potential sales. This second method may prove to be the most productive. There has been much research on the ways that social media marketing for books and publishers has developed and is being used (see Criswell and Canty, 2014; Botelho and Opidee, 2012; and Kinsman, 2011).
For most writers who work on a digital forum, there is the adage of ‘never read the comments’. This is both true and not true in relation to publishing fiction written within social media. On all three platforms, users can comment on the posts of other users, and even reply directly to those comments beneath the original post. On the one hand, reading the comments will give publishers an insight into what their potential market thinks about a Tweet, update, or chapter in Wattpad. On the other hand, these comments help develop a system of “social reading” as a way to “encompass a variety of methods for using digital platforms to expand the reading experience” (Wassom, 2015, pp 217). Often social reading is a means of incorporating the users’ experience with the text, allowing them to make notes, like the comments on Wattpad and Facebook, and in quoted Tweets and Retweets on Twitter. Wassom claims that “By default, then, the readers who create notes on a text own those notes” (pp 219), and digital copyright law supports this.
If that is the case, can the original text within a social media platform be quickly and simply divorced from the comments that are made on them? In short, I believe, the answer is yes. However, unless the original work written within the social platform is deleted, those quotes and Retweets (and potential screen shots) will remain attached to the author’s written work. Furthermore, they may also be used according the sites’ Terms and Conditions, and can potentially remain in the database and cached pages.
Power in Copyright and Social Platforms
One thing Twitter, Facebook, and Wattpad’s Terms of Service have in common is how they manipulate their licensing agreements to allow them to make use of a user’s content, usually for marketing purposes. Twitter states that:
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). (2015)
Similarly, Facebook’s Terms of Service, Clause 2 indicates that:
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. (2015)
Likewise, Wattpad allows themselves “a worldwide, non-exclusive, royalty-free, transferable license to use, reproduce, distribute, display, and perform the User Submissions in connection with the Wattpad.com Website” (2015).
This could give the social media platforms the advantage if they ever choose to become a publishing entity. It would inevitably change the power dynamic between publishers, writers, and social media platforms, as authors who write on social media could potentially be agreeing to allow the platform to “use any IP content” posted. If this is the case, then traditional publishers could be locked out of contracting new and interesting content via social media, and would be resigned to entering in to contract with media giants, forced to secure a contract with authors before the social platform does, or simply use social media only for audience building purposes.
A close look at Facebook and Wattpad shows that they have clauses in their Terms of Service allowing them to remove any content or information posted that doesn’t fit in with their terms, effectively censoring some forms of work and creating a unique power dynamic between users and the sites. Jeffrey Rosen, a George Washington University law professor, states in article in the New York Times that “Facebook has more power in determining who can speak and who can be heard around the globe than any Supreme Court justice, any king or any president” (Qtd by Helft, 2010).
If Facebook deems something to be in violation, then the offensive content is removed and sometimes the user’s account is terminated, leading users to practice caution to avoid publishing any “content that: is hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence” of infringement of copyright (Facebook, 2015). Similarly, on Wattpad, the company reserves the right to remove offensive material, and uniquely, works that are of excessive length. Generally speaking, censorship on large-scale social networking sites, where people often do not have a full understanding of privacy settings (See Litt, 2013; Sadeh, et.al., 2013 and Breslawski, 2013) lends itself to “subjective and unpredictable censorship of literature, art, and political discussion” (Heins, 2014, pp 326).
For authors using social media sites to write works of fiction that deal with graphic scenes or sensitive topics, there will always be a worry that the platform they’ve chosen to write on will remove their posts, and potentially red-flag or terminate their accounts. This could lead to authors censoring themselves and their work as a trade off for being able to utilise the platform as a creative outlet with a ready-made audience of social connections. While this form of front end prevention by Facebook and other sites exists to protect their users, generally, it is somewhat ironic that “Facebook has a First Amendment right to censor whatever it wants in order to maintain the kind of social space it wants” (Heins, 2014, pp 326).
However, on Twitter this clause is not needed as its Terms and Service states that it is not liable for any offending content a user may come across on the site. Twitter, like Facebook and Wattpad, does take a stance against infringement of copyright, and has policies in place to report infringement. On Facebook, for instance, the person reporting the infringement is not required to have an account. In the case of a report of copyright infringement, social media platforms will remove the offending content and allow the ‘offender’ to appeal the removal.
In most cases, users are not well-enough informed on the rules of copyright and will freely take and share an image or quote without asking the creator or attributing the work, without meaning any harm or making commercial gains. While this is copyright infringement, for the most part, it goes unnoticed unless an image goes viral or is sold on to be used for commercial means. I agree with Zimmerman who says, “the problem of non-commercial infringement on the Internet will simply prove too costly to solve by law” (2014, pp 283), but I do not share her opinion that the way to address this issue is to exercise a “surcharge on Internet connections” much like private copyright levies in Europe. This potential solution raises many questions regarding the rates of fees, who will levy them, and who will benefit from them, leaving this a questionable option for solving a widespread problem. Instead, we need to look to technology to implement Content ID as a way to filter infringing content as it is being posted, a system YouTube is well-known for employing. “[B]ecause the filtering is automatic, it is prone to significant errors” (Zimmerman, 2014, pp 273), but it could offer a better solution for non-commercial copyright infringement on social media platforms by detecting potentially infringing posts and sending the user a pop-up explaining the bones of digital copyright law and the potential costs for ignoring them. While this should not prevent a user from posting content, it will make them aware of their actions and act as a deterrent while still privileging free speech.
Conclusion
In order to fully understand the IP rights that are involved in using social media platforms as content generators for traditionally published products, there must be an understanding of digital copyright and how that relates to exhaustion of copyright, licensing agreements, and DRMS. I suggest that the laws catch up with the technology and implement a digital exhaustion of copyright that allows the author to receive a monetary compensation for each digital resale.
Simply speaking, Facebook, Twitter, and Wattpad all state that a user’s written posts and works are their own. But, all three sites retain the rights to keep version in cache, and to manipulate user content as they see fit until a user terminates their account, and in the case of Wattpad, well after.
In looking at the power play of digital copyright, it becomes obvious through the work of Yu, Dinwoodie, and Kayanidi that copyright and IP rights have a subtle way to manipulate power both within each country and on an international scale. Similar power plays are brought into effect in the relationship between a user and social media platforms. I argue that the Terms of Service of social sites Facebook and Wattpad could potentially censor authors who want to create fiction using these platforms. Unlike Zimmerman, I do not believe the answer is to levy a surcharge on Internet usage and instead advocate implementing technology that can scan posts and inform users, briefly, about copyright laws and the consequences of breaking them before they post an update where infringing content was detected.
When the discourse of traditional publishing comes into contact with those of social media and user generated content, the power dynamics will change. Several new models of publishing will be tested. Publishers are in continual competition with social networks for the time and eyes of users. By allowing social platforms to become a place where traditionally published content is created, publishers can use this to drive interest in reading and writing, find the next big-author, and reach a new market. If the publishing industry does not adapt to include social platforms beyond the scope of marketing they may well find that are in a position where they must form partnerships with the social platforms to create and share works of fiction. Or, they could be even worse off, where, the social platforms become traditional publishers themselves.
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[1] Secondary infringement, according to the Copyright, Designs, and Patents act of 1988, consists of importing infringed works, possessing or dealing with infringing copy, providing means of making infringing copies, or permitting performance of an infringed work.
[2] Google, Apple, Yahoo, Facebook
[3] As of 08 October 2015.
[4] See details in section 1: What is a book?