Comment’s on Eric Hellman’s note on eBook Copyright Pages

Eric Hellman, founder of Unglue.it, has a note in the current issue of the New York Law School Review titled, “The eBook Copyright Page is Broken.” It is a quick read, and what I have to say is in response to it, so please read it in order to understand what I am commenting on.

Hellman is active in the area of eBook publishing, exploring new economic models for their distribution, and very interested in how eBooks are changing the conditions of what we call publishing. I support his general project and agree in general terms that the technological foundation of eBooks has implications for the way the book trade works. However, I think that in his note on eBook copyright pages, what Hellman has done is simply to notice the way that copyright pages are broken in general, in terms of print books as well as eBooks.

I am a publisher of print books that have e-versions in most cases, and I sign contracts with authors, contributors, translators, illustrators, designers, and other publishers, contracts that involve the trading of rights under copyright. So, I am familiar with some of the complexities behind copyright and its role in book publishing.

Hellman enumerates seven ways in which he says eBook copyright pages are broken. In almost each case, as I was reading I said to myself, “Well this applies equally to print books, and publishers know this, but the copyright page is not intended to communicate the full picture of rights ownership behind a book.”

Let me address each of Hellman’s discovered problems with eBook copyright pages.

1) “Since there currently are not any copyright formalities, the copyright symbol means nothing. The work is subject to copyright with or without the copyright symbol.”

This rather obviously applies to print as well as eBooks.

2) “The work may also not be subject to copyright, for example, if Eric S. Hellman is a government employee, a robot, or a non-creative compiler of factual information. In these cases there is no copyright even if there is a copyright symbol present. There is no legal duty for a publisher to put a copyright symbol only on a copyrightable work. How is the ebook user supposed to know the true copyright status of a digital work?”

This states that a copyright can be falsely indicated when a work cannot be copyrighted, and also that the copyright status of a work is not required to be stated. I understand this to mean mainly that copyright does not rest on a copyright page, and that is worth pointing out, but again, it is rather obviously true of print books as well as eBooks. (Not all of my points will be quite this obvious.)

3) “Eric S. Hellman” is an uncommon name. But suppose the author is named “John Smith.” What use, then, is the copyright statement? It does not specify which Eric S. Hellman or which John Smith is the author.

This again applies obviously to print books, but furthermore, it is a complaint that can be answered in general terms. The copyright page gives some indication of rights ownership even though it doesn’t not paint the full picture or give a lot of specificity. In terms of identifying the true author, if the author is the copyright holder, normally a person would use other available information to figure out which “John Smith” is indicated. If the copyright page has CIP information from the Library of Congress, then the LoC’s name authority information will be included in the cataloging (normally indicated by a year of birth). Sometimes, finding the identity of the rights holder could take additional work. But it doesn’t follow that the copyright statement, incomplete as it may be, is without value. At a minimum, it indicates whether the author or the publisher owns the copyright (even if, in terms of control of rights, it may provide misleading information given stipulations in a contract about transfers of rights limited to a certain number of years, etc.) So Hellman’s observation is of one of quite a few ways in which the copyright page of a book, regardless of format, leaves something to be desired as a complete statement regarding rights holders. I don’t think this means that the copyright page is “broken,” however; it simply relates to the fact that the copyright page is not intended to be a full statement of rights.

4) “The asserted name of the copyright holder can’t be relied on because text in a digital file can be altered without a trace. It’s simple to take a digital copy of Merchants of Culture and change its asserted copyright holder to “John Smith,” then redistribute it. This is a negligible problem in the print world.

This one is clearly about eBooks and not print books, as Hellman points out specifically in this case. However, what he is pointing out is not merely a problem for the copyright page. It is also a problem for the actual copyright status of an eBook. If an eBook is altered and redistributed, the alterations likely represent a copyrightable creative contribution that is not reflected in the copyright statement. Or is it? Why should we presume that if the book is altered the copyright statement is not also altered? Not to alter the copyright statement would simply mean not finishing the book responsibly and creating a product into which false information has been introduced. This means that the copyright page in this sense is only broken when someone breaks it. And this is only if we accept Hellman’s assumption that we should look at the copyright page as something that is intended to paint the full picture of the copyright status of a book.

5) “The asserted date of publication may be unrelated to the date of the underlying copyright. For purposes of copyright (for example, when a work is produced as a work-for-hire), re-publication of a book does not change the copyright expiration date of the underlying text.”

This is true of print books as well, and it may come as a surprise to some that it can be a problem with first editions of print books, given the time that it takes to bring a work to publication once it is complete. Aside from the fact that normally only the year is given on the copyright page of a book (as opposed to the date, and, why not, the time), it is often the case that a work that is completed in one year does not reach publication until the next. There is, unfortunately, no agreement as to whether the date given on the copyright page represents the date of completion of the work (the copyright date) or the date of publication. Sometimes the copyright page will be clear as to whether one or the other is indicated. At Litwin Books, we like to be specific and state both the year of copyright and the year of publication when the two are different, but most publishers do not do this. And it is something that is not generally considered in the book world. For example, the rules for a book award may state in one place that the book needs to have been published the previous year and in another that it needs to have been copyrighted in the previous year, or where, in considering books for an award, stated copyright dates are taken as evidence of publication dates or vice versa. Unlike some of the other problems with copyright pages that Hellman notes, this one affects people who don’t even have a need to know information about who owns the rights. But it would be mistaken to think that it is a problem that effects eBooks specifically.

6) “There is no specification of the work being copyrighted. In print there’s not much ambiguity, but digital books are composite objects (text and graphics are always separate entities in a digital book file) and are frequently distributed in pieces. Some ebooks even have front matter distributed as a pdf file completely separate from the chapters. In other cases, an ebook may be displayed on a website that has a separate set of copyright statements.”

Hellman is correct to point out that when a print book is pulled apart and no new copyright information is provided about the separate parts of the book, a new problem is introduced. However, there is a related problem that existed already, which is that the simple copyright page never represented the complex status of rights regarding the different parts of a print book. A preface may be a work for hire owned completely by a publisher, and illustrations may be owned by the illustrator (or another publisher) and used under license. That complex state of affairs regarding the rights behind a book is standard, but I have never heard of a publisher attempting to represent it fully on the copyright page of a book (or what would have to be a copyright section if they were to attempt to represent all of the information concerning rights). If a new problem is introduced with eBooks in this regard, it is in the fact that new discrete digital objects are sometimes produced that have no copyright information attached to them.

7) “If the digital book is legally on your ebook reader, then, somehow, the rights holder has granted you some rights, perhaps under the terms of an explicit license or with the license implicit in its availability on a website. Either way, “all rights” have not been reserved. Licenses are not needed for printed books, but they may be needed for ebooks.”

The license agreements between publishers and consumers of information in electronic form are the big area, in my opinion, where the situation regarding the book trade has changed, and which librarians especially need to pay attention to. Where “all rights reserved” appears on a copyright page, presumably it has been placed there prior to a license agreement. Also, we can presume that it refers not really to “all rights” but to “all rights that we own” (since, for example, it is never taken to be denial of first sale doctrine). I think Eric is correct that in an eBook environment, this statement has to be modified in order to most correct, and further I think it is an easy modification to make. It could simply be amended to say, “All rights reserved where not covered by license agreement,” or words to that affect. However, it could also be argued that the statement is intended to apply to the content prior to a license, which is the same as the situation with print books. Publishers grant licenses all the time that allow specific parties, usually other publishers, to make limited use of content controlled by that publisher (e.g. a chapter in a book where the publisher still controls the rights). In that sense, “All rights reserved” indicates that a license is required for a transfer of rights. We often don’t know where such licenses are already in effect. But that is a somewhat technical point, and I will agree that Hellman has identified an issue here.

I think that my main point–that the issues Hellman has raised regarding copyright pages apply to print books as well–is fairly obvious. So, I wonder why these issues seem salient regarding eBooks and not so much to print books? I think the reason is that eBooks are forcing us to pay focused attention to issues of rights that have become unstable and have entered into play in new ways with digital content, and that this focus has inspired Hellman to turn a critical eye to traditional copyright pages. Perhaps we need complete statements of the rights situation surrounding works in a way that we didn’t before eBooks. If that is the case, then I could agree with Hellman that the eBook copyright page is broken, but only in the sense that it does not address a new set of needs. Perhaps Hellman assumes that but doesn’t state it directly. In any case, I think it would not be an entirely correct assumption, because print books and eBooks don’t exist in separate legal spheres, and copyright issues that have recently become salient affect print books today in ways that they didn’t previously, even if the change is related to e-publishing.