The U. S. Patent and Trademark Office (USPTO) recently held a public meeting on “Facilitating the Development of the Online Licensing Environment for Copyrighted Works.” The Science Fiction and Fantasy Writers of America, the National Writers Union, and the American Society of Journalists and Authors submitted a paper for consideration listing what, in our estimation, are the points that any online licensing system must recognize if it is to be effective.
“Discoverability” is a key component of any such system, which requires not only that works must have unambiguous identifiers, but that the identifiers point unambiguously to the authors of the works rather than to publishers. Any such system must also recognize that the author is the best, and in many cases only, source of information about the ownership of rights. More and more books are self-published; publishing companies aren’t involved at all, and any system that relies on them will be incomplete. A publisher-centric system will also assign rights incorrectly, especially considering that publishers have begun to claim ebook rights for works even though the contracts for those works do not mention them.
SFWA has been interested in developing a way to find authors for a long time. The failed Google Books Settlement and subsequent developments call into question what an orphan work is. If a defining characteristic is that the author can’t be found, clearly, then, a system that facilitates finding authors is necessary before works can definitively be declared orphans.
SFWA has made recommendations concerning orphan works to the Copyright Office several times now, focusing on the creation of a national Author Information Directory (AID), a database that would function as the source of unambiguous identifiers for authors as well as provide contact information for negotiations about licensing rights. SFWA feels that creating this database should be left to government rather than for-profit entities, and that a database that allows direct updates from the authors themselves would be well within the Copyright Office’s capabilities.
As nice as it would be to let Google and Amazon worry about providing discoverability for works and then the authors of those works, it’s clearly not part of their business plans. Amazon in particular has shown no enthusiasm for adopting the ISBN as a standard, and its proprietary identifier is unlikely to be used by other book distributors. Tellingly, there were no Amazon representatives at the USPTO meeting.
Right now, the primary international database of author identifiers is the International Standard Name Identifier (ISNI), about which Writer Beware has blogged before, and the primary book identifier is the International Standard Book Number (ISBN). There is also the Digital Object Identifier (DOI), which theoretically could be used as an identifier for short stories, blog posts, and other text not covered by ISBNs.
While these databases are theoretically expandable to be the comprehensive system of databases that would “facilitate the development of an online licensing environment,” none of them incorporate author contact information to the degree necessary to unambiguously identify specific rightsholders; and each has problems that discourage authors, especially self-published authors, from participating. Most obvious is cost. ISBNs, for example, are quite expensive when purchased in the quantity needed by many self-published authors. And while many traditionally published authors have been automatically included in the ISNI database, those who have not–including almost all solely self-published authors–are required to pay a fee. It is obvious to us that any system that requires authors to pay a fee for an unnecessary service will fail. At the very least, we feel that authors’ groups such as SFWA, ASJA, and NWU can act to facilitate author participation and greatly reduce or entirely eliminate those fees.
Our groups will continue to represent authors at meetings of this kind, where it often seems thta authors’ and other creators’ concerns are treated as an afterthought.
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AUTHORS MUST BE INVOLVED IN ANY SYSTEM OF STANDARD IDENTIFIERS AND RIGHTS DATABASES
Submission of American Society of Journalists and Authors, National Writers Union, and Science Fiction and Fantasy Writers of America to USPTO’s public meeting,“Facilitating the Development of the Online Licensing Environment for Copyrighted Works,” April 1, 2015.
All rights ultimately derive from the author of a work.
1. The author is the best source of bibliographic metadata about his or her works.
2. The author is the best, and in many cases only, source of rights-related metadata about his or her works. In many cases, publishers do not know what rights have been assigned where or may be interpreting their contracted rights too broadly, especially concerning electronic rights.
3. Any database of identifiers and/or rights must allow the input of the authors or it will be inadequate and contain many errors and omissions.
4. An identifiers/rights database that charges authors a fee for inclusion is counterproductive, and will not include the majority of self-published works.
5. Because an ISBN identifies an edition, not a work, the status or availability of the ISBN says nothing about the status of the work in other editions. Many works are out of print in the original paper editions with ISBNs, but available in non-ISBN self-published digital editions. A consistent system for identifying works, not editions, is needed.
6. A growing percentage of e-book licensing transactions (often erroneously referred to as “sales”) and e-book “best-sellers” (ditto) are not only self-published but also self-distributed. Only the authors can report information about these licenses.
7. In the U.S., the current systems for creating identifiers for works and authors (ISBN and ISNI) charge fees. In the case of ISBN, the fee can be quite substantial. As a result, many new books, especially self-published e-books, are not included.
8. In many other countries, the cost of creating ISBNs and ISNIs is borne by the government, and that should also be the case in the U.S. In Canada, by comparison, ISBNs are free for Canadian citizens.
9. The cost of creating an Internet-based database that allows authors to register their works and provide metadata would be relatively small. The result would be a considerable improvement over the current system. Such a database would help in the search for the authors of potentially orphaned works, among its many other benefits.
10. Science Fiction and Fantasy Writers of America (SFWA) has proposed the structure for an Author Information Directory (AID) as part of its Orphan Works White Paper that could serve as a template for such a database. (The white paper can be viewed here; the AID is discussed starting on page 4.) Rights-related data fields could easily be added to the AID.
10. Writers’ groups can not only act as intermediaries with such a system for their members, but already maintain lists of contact information for their members, and in some cases, contact information for the estates of authors in their genre. Groups such as SFWA, National Writers Union, and American Society of Journalists and Authors stand ready to assist in any effort to formalized the identifier/rights databases proposed here. A large number of creator organizations can be contacted via the Authors Coalition of America.
Theft definitely happens in the magazine world. I once went into shock on opening a magazine I *wrote for regularly* and discovering an article of mine that *the same magazine had published* a year earlier, *word for word, over 2,000 words* under *another writer's name.* This was not a typo. The other person simply copied and submitted my article to the magazine (which had recently changed ownership, so maybe the new editor didn't know). (And furthermore, this person continued for several years to closely paraphrase numerous articles I had published elsewhere and submit them to yet another magazine.) Yes, I pursued the issue.
But what we need to worry about most is large corporations that seize massive numbers of works for their own benefit, wait to get sued, and assume they can win by their ability to outspend anyone who sues them.
Copyright ownership is very easy to prove–regardless of when or if a work is published–simply by retaining dated drafts, research notes, correspondence, submission notes, and the like. If you're really worried, you can register US copyright for your unpublished work, which unequivocably establishes ownership–but Writer Beware doesn't recommend that, not only because it isn't necessary but because you might need to re-register if the work was later published in much-changed form.
As for theft…while many authors fear it, it's really very rare in the book world, at least at the submission stage. A good agent or publisher will want to work with you, rather than going to all the trouble and risk of stealing your work and pretending it belongs to someone else; a bad agent or publisher is probably not interested in your work at all, only in your money.
Copyright automatically comes into forcer as soon as you write something. The real difficulty comes in proving original authorship prior to any other claimants, basically when written and of course the cost of litigation.
Publication with an ISBN or any other registration provides a date, but work is written prior to this date, often a long time before, so a registration database for written work, prior to publication, would be required to prevent the problem of submitting a manuscript and having the story taken, given minor changes and then published under someone else's name.
Thanks for volunteering, Lawrence. If we move beyond this preliminary stage of making recommendations, we'll keep you in mind.
Frances, I'm not sure where you got the idea that this is proposing an opt-out system. Admittedly, that's the scenario envisioned by many of the parties at the USPTO meeting, and I think that if an opt-out system comes into being, it should still be author- rather than publisher-centric. If you look at SFWA's orphan works proposal, you'll see that the proposed database would not be considered definitive but only be the first place to start to search for an author. Not being listed in the database could not be taken as being evidence of orphanhood. I think that, to some degree, ISNI has the right idea, seeding their database from public domain sources and allowing authors to correct their information. Unfortunately, ISNI isn't designed to link directly to authors, although they will include a link to an authors database on request, which is a beginning.
Let's step back a minute. US copyright law says that if the work is under copyright and you can't get permission to use it (except in certain rather narrowly legally defined ways), then you can't use it in except in those narrowly defined ways. Not getting permission to use the work any way you want includes situations where you can't get permission because you can't find the copyright owner's current contact data. Search engines have made it much easier to locate at least someone associated with the work (the publisher or distributor, for example), who can refer the person seeking permission to the copyright holder. Yes, sometimes the copyright holder can't be located, but so what? Google and others are attempting to reinterpret copyright law as, if you can't find the copyright holder you can do whatever you want with the work. But US law has not been rewritten and should not be. Basically, if someone wants to use a work and can't get permission, hard cheese. It's not the authors' job to keep databases updated every time they move, change their email address or their publisher, or inherit a copyright. We really don't want an "opt-out" system like the one Google tried to force on us and we don't have to play on their terms. I am aware that the SFWA truly has authors' best interests at heart, but this proposal is a mistake.
Regarding "9. The cost of creating an Internet-based database that allows authors to register their works and provide metadata would be relatively small. The result would be a considerable improvement over the current system. Such a database would help in the search for the authors of potentially orphaned works, among its many other benefits."
I would happily help create and contribute to a crowdfunding effort to develop such a database, and I believe the same may well be true for many other authors.
An index for short stories and blogs would be useful (I'd even like one for short films as one I saw back in the VHS days seems quite the orphan like a book my mother read in 1950 nd would like to reread. And yeah, as much as I love google and Amazon for their strengths, I don't think they should shepherd a replacement/expansion of the ISBN.I suspect it would be better if a single story had a number instead of every edition, maybe a suffix for editions. I can't say I'm happy about books published without ISBNs as that tacitly admites it will never be sold in bookstores or collected in a public library.