Showing posts with label Intellectual Property and Copyright. Show all posts
Showing posts with label Intellectual Property and Copyright. Show all posts

Wednesday, March 24, 2010

Cut and Paste Culture

If you’ve landed on this entry because of searching a particular phrase, you might want to move on and read this link instead, a thought-provoking article from 21 March New York Times, "Texts without Context" by Michiko Kakutani, as my comments, ironically, are perhaps part of the very problem. Also, ironical is that while this article is about the Internet, it was published in a major traditional newspaper, and itself incorporates the ideas of eight books on the general topic (and subtitle of the article): “The Internet Mashes Up Everything We Know About Culture.”

So, at the risk of being part of “the problem” here are some highlights from Kakutani’s article:

* intellectual property and plagiarism that have become prominent in a world in which the Internet makes copying and recycling as simple as pressing a couple of buttons

* Web 2.0 is creating a “digital forest of mediocrity” and substituting ill-informed speculation for genuine expertise

* the Web have been accelerating certain trends already percolating through our culture — including the blurring of news and entertainment

* [we’ve become] a culture addicted to speed, drowning in data and overstimulated to the point where only sensationalism and willful hyperbole grab people’s attention.

* More people are impatient to cut to the chase, and they’re increasingly willing to take the imperfect but immediately available product over a more thoughtfully analyzed, carefully created one.

* technology is also turning us into a global water-cooler culture, with millions of people sending each other (via e-mail, text messages, tweets, YouTube links) gossip, rumors and the sort of amusing-entertaining-weird anecdotes and photographs they might once have shared with pals over a coffee break.

* the Internet’s nurturing of niche cultures is contributing to what Cass Sunstein calls “cyberbalkanization.” Individuals can design feeds and alerts from their favorite Web sites so that they get only the news they want, and with more and more opinion sites and specialized sites, it becomes easier and easier…for people “to avoid general-interest newspapers and magazines and to make choices that reflect their own predispositions.”

This cut and paste mentality has migrated to mass media as well, with reality TV shows replacing shows that have to be written from scratch, perfect “water cooler” fodder, and retread movies and Broadway shows becoming more prevalent. We’ve become a mass culture addicted to gossip, voyeurism, and extremist or conspiratorial views, abetted by the Internet

Ironically, the plethora of views that can be found on the Internet can lead to a self-fulfilling confirmation bias, reinforcing preconceived views and gathering momentum to the point where some need to proselytize their views. The cut and paste approach requires no thought other than to send broadcast emails to friends, and friends’ friends ad nauseum attaching, the conspiracy or the impending Armageddon theory du jour.

I have asked friends not to forward me such stuff responding to their first missive with my standard letter along the following lines: “As much as I enjoy hearing from you, I don't want my email address used for any broadcast emails, no matter what the subject or the degree of importance. On the other hand, I welcome personal emails and you know I will always respond in kind. Thanks for your understanding.” Usually, that’s it. Most such “friends” normally do not write personal emails.

Nonetheless, we have gone from a society where information was controlled by the few to the explosive democratization of information, where anyone can produce what passes for such and anyone can consume it as one wants. Beware of prophets bearing informational gifts for the self-delusional.

Spammer at Work

Thursday, February 11, 2010

Publishers in the Crosshairs

Maybe it’s because I’ve been on the periphery of the industry for a while, the salad days of my publishing career behind me, but being a firm believer that information, especially vetted information, has value, publishers seem to be having a chicken-little moment at this stage of technology evolution. I can’t help but hark back to the 1960’s when publishers and libraries were fearing that Ultrafiche, a microfiche that holds up to 1,000 pages per 4x6" sheet of film, would make the printed book redundant. So fast-forward to the brave new world of the 21st century.

No doubt today’s technology is a form of creative destruction that Ultrafiche was not. But the operative word here is creative and publishers bring something valuable to the table, gathering and authenticating information at the higher end of the information pyramid and editing, designing, promoting and distributing trade books at the lower end. I’ve always thought of publishing as an information pyramid, the top of which is “must have information” – mostly scientific and professional – and at the bottom, the kind of publishing which is mostly the mass market stuff competing with movies, magazines, and other leisure-time activities. In the information pyramid there are various categories in between, such as educational publishing, serious trade publishing, etc. The higher in the pyramid, the less price sensitive and visa versa. To a great extent, this applies to electronic distribution as well.

Monday’s Financial Times presented an interesting analysis of the publishing industry’s present predicament, eye opening because it made clear that Amazon, to build market share and ward off the rapid encroachment of Apple and Google, was selling their $9.99 eBooks at a loss. Macmillan’s move to delay eBook editions of new titles by six months was to “force” Amazon to charge more, which Amazon capitulated on, not because of one publisher’s demands but because the announcement of Apple’s iPad threw down the gauntlet of real competition for the Kindle. I thought competition was supposed to drive down prices. Otherwise, the whole matter suggests a form of price fixing.

While publishers might find a $9.99 electronic book unsustainable (if that is their own list price) as, after all, the vast majority of the costs are those incurred in creating the first copy (paper, printing, and binding being a minor part of the expense in publishing), Amazon’s selling at that price is another matter. How long can Amazon sustain pricing that is less than publishers’ charge Amazon, particularly as Apple and Google enter the competitive fray? Aren’t publishers playing a dangerous collusion game “forcing” resellers to charge a particular price? Publishers need to set their list prices for printed and electronic editions, establish a sensible discount schedule to resellers (both price and discount dependent on where the book/information stands in the information pyramid), and then let the marketplace work. Their control of copyright allows them to have this power. It’s not a matter of “negotiating” prices with resellers, but, instead, ensuring they (publishers) don’t fall into the same trap as the music industry, taking safeguards with distributors to guard against unlicensed replication of eBook editions.

According to Mike Shatzkin (quoted in the FT article), “Legacy publishers still want bookstores to last as long as possible. Their business model is built on their expertise in navigating that industry.” No doubt that is true; even though that legacy system is fraught with its own economic problems such as allowing “returns” of unsold copies for up to a year, an archaic business practice that bookstores and publishers seem to be addicted to. However, be it legacy publishing, electronic, or forms yet to be discovered, it is the publishing industry’s need to adapt, not to retard progress. Otherwise, “their failure to recognize that their industry’s economics is of no concern to the marketplace [will be] another nail in their coffin.”

Perhaps the trade book publishing industry needs to be led out of the woods by more innovative independent publishers, with important, influential authors seeking those venues, deserting the present publishing oligarchy that imagines it can control how the resellers should price their publications. Instead, control the timeliness, presentation, and relevance and accuracy of content, bringing together the author and the reader, in any form the marketplace needs.

Of course it is a more complicated matter, within an even larger picture if you take into account the desirable survival of the independent bookstore, the strategic deployment of on-demand publishing by publishers, and how authors, particularly the best-selling authors, look at the eBook – is it a subsidiary right of which they require a larger piece of the action, such as they receive from the sale of movie rights, or even hold the right to themselves to negotiate their own deals with Amazon, Apple, etc.?

Independent bookstores could be compensated for eBook downloads in their own Wifi hotspots – provided publishers and electronic distributors cooperate and agree to give up a little of the pie, as sellers do to Google for eyeballs that lead to sales. It is in the best interests of the industry to ensure the independents’ survival and they can have a role.

Publishers could more often deploy on-demand printing, especially for the so-called mid-trade edition, or do shorter edition runs and then opt for on demand subsequent editions if warranted. This strategy would reduce part of the publisher’s risk.

Authors have to realize that having a multiplicity of publishers and distributors is in their best long-term interests. Reserving eBook rights for themselves to negotiate with electronic distributors will have an impact on publishers’ ability to produce and promote printed editions. Are we, as a society, better off without legacy publishing in any form?

One of my friends and mentors, the late Len Shatzkin (Mike Shatzkin’s father) said it best in his book In Cold Type; Overcoming the Book Crisis (published in 1982 – the industry has always been in crisis!): “Any misfortune for book publishing is a misfortune for all Americans. Books are too important to our lives; we cannot be indifferent, or even casual, about what happens to the industry that produces them.”

Saturday, December 13, 2008

Copyright in the Internet Era

It is remarkable to witness the revolutionary changes in information dissemination, just during my working lifetime as a publisher, from the Gutenberg era to the Internet era over the course of only a few decades. I remember attending a conference at the New York Public Library in 1965 about the urgent need to use permanent durable, acid-free paper in all new publications. The NYPL’s collection was rapidly deteriorating, particularly those books and periodicals that were printed on groundwood pulp paper, the same as used in newspapers, and the library was beginning to spend as much on preservation as it was on acquisitions. Microfilm and microfiche (particularly “ultrafiche”) as well as mainframe computers, were being cited as possible solutions to preserving information. At the same time photocopying was becoming ubiquitous and libraries looked upon that as a possible method of disseminating information through library systems.

Today’s ambitious projects – basically Google’s objective to digitize just about everything (more than 7 million books scanned thus far) – makes the related copyright issues I was concerned with at the time, particularly The Williams and Wilkins Supreme Court decision ( look like a trivial warm-up act. I wrote an essay for a special 1974 issue of Confrontation – The Great Copyright Debate on that case (below). Focused on the then relatively “new” technology of photocopying, it seems antiquated, but the fundamental issues of fair use and the extent to which the rights of individuals or corporate authors, the creators of the information, can be usurped by the informational needs of the majority are even more alive in today’s Internet world. One only needs to check out Google’s ambitious project to understand the far-reaching impact the digital world is having on how we access information as well as who “owns” the information.

A Publisher's Viewpoint

By Robert Hagelstein

Nothing stirs the emotions of the educational and publishing communities more today then the copyright issue. For decades a tacit agreement between librarians and publishers (the "Gentlemen's Agreement" of 1939) had successfully governed photocopying by libraries of copyrighted materials. But that agreement was established before the advent of widespread use of relatively inexpensive electrostatic copying equipment and audio-visual duplicating equipment. It also preceded exponential information growth, increasingly expensive research materials, and higher education for the masses.

These factors have resulted in the large-scale copying of copyrighted audio visual and printed works by libraries, with the approval of the courts to the dismay and general disapproval of publishers and authors. Congress will ultimately decide whether such copying will continue.

On February 16, 1972, the United States Court of Claims found that the federal government was liable for infringement of copyrights held by Williams and Wilkins, a medical publisher. For years the National Library of Medicine had systematically copied, upon the request of researchers connected with those institutions, parts of periodicals (in some cases, complete articles) published by Williams and Wilkins.

On November 27, 1973, the Court of Claims reversed its historic opinion. The Williams and Wilkins Company appealed the reversal to the Supreme Court. Recently, the Supreme Court decided to review the case.

The Supreme Court's decision will undoubtedly influence the copyright revision bill, which for years has been under consideration by Congress. As the Court of Claims stated in its reversal decision, "the truth is that this is now preeminently a problem for Congress: to decide the extent photocopying should be allowed, the questions of a compulsory license and the payments (if any) to the copyright owners, the system for collecting those payments (lump-sum, clearinghouse, etc.), the special status (if any) of scientific and educational needs."

The issue has divided publishers and librarians, creating an adversary position where traditionally there has been one of cooperation. Publishers feel that the Williams and Wilkins reversal demands that they oppose almost any kind of library photocopying, while librarians are reportedly considering the decision as a green light to proceed with wholesale copying.

Robert Wedgeworth, Executive Director of the American Library Association, referred in the May 1974 issue of American Libraries to the Williams and Wilkins reversal as one "of our most impressive triumphs of the century." A letter from a librarian to Library Journal (February 15, 1973) states that "publishers and librarians are in adversary positions ... No amount of discussion will bridge that gap ... If you think you are on the winning side, why offer to compromise?" Publishers have been equally vocal and adamant concerning their position.

Though rights have been aired, there has been little discussion of the need to find a compromise solution-such as a rule for the use of copying equipment, and a means of compensating authors and publishers.

The rhetoric has also obscured recognition of the dissemination of knowledge as a common goal shared by all serious publishers and librarians. This recognition cannot be achieved without understanding of each group's respective roles, and the implications of what the lack of a compromise solution means.

The librarian's role is fairly clear. However, the inside workings of a library-acquisition, cataloging, and circulation of library materials-are complex. One can fully appreciate why--especially in a large academic library-the idea of keeping track of photocopies for the purpose of paying royalties is abhorrent.

Publishers of materials normally acquired by academic libraries must have highly specialized knowledge and formidable financial resources. Making information available in a structured manner so that it can be easily used is not a simple task. To ensure the participation of private industry in such an endeavor, the potential for a reasonable profit must be evident.

The burgeoning costs of research materials may prompt some to question why private industry is needed to publish information and to produce information systems. The Government Printing Office in Washington is capable of handling this responsibility, and libraries, as protectors and purveyors of information, can also be publishers.

The preservation of a truly free society, however, requires a diversity of information sources and opinions. Uncontrolled copying of information without proper compensation to authors and publishers would ultimately reduce the sources of information. Conceivably, more and more publishing would, out of necessity, be taken over by the federal government. Hence, the Government Printing Office, already one of the world's largest publishers, would be encouraged to support and control all kinds of research and writing. Government control of the dissemination of information is not in the best interest of librarians, publishers, authors, or of the public.

To prevent such a trend, a copyright law is needed which protects the rights of authors and publishers as well as librarians, providing for a method of compensation for photocopying copyrighted materials.

If the Court of Claims reversal were upheld and backed by Congress, not all publications and publishers would be equally affected. It is important to make a distinction here between trade publishing and information publishing. Trade publishing is the publication of books intended for a general market of readers, usually reached through bookstore distribution. The product of information publishing, however, is highly specialized and is destined for a relatively limited audience, especially libraries. Included in this category are scholarly and professional journals, information banks on microfilm or computer tape, scientific, technical, professional, and scholarly monographs, and proceedings and symposiums.

Since information materials are exclusively published for educational or research uses, commercial information publishers depend mostly on the education market for financial support. Trade publishers generally derive much of their income from other sources such as the sale of book club, paperback or movie rights. Therefore, any attempt to justify unlimited library photocopying as "fair use" because it is for "educational purposes only" would deprive the information publisher of its sole potential income source.

Although some forms of trade publications may be subjected to photocopying, it is unlikely, even if photocopying were condoned, that a novel or a general historical work would be systematically photocopied. Most libraries want to buy original editions for their collections, anticipating heavy use. Bound printed copies generally last longer than photocopies, bound or unbound. Because trade works are printed in much larger quantities for broader audiences, an original copy would probably be far less expensive than a photocopy. Furthermore, this kind of book is meant to be read in its entirety and does not lend itself to being photocopied in part only.

The converse is true of the information publication, which is especially structured so that it can be used in part. Because the audience for such a product is comparatively limited, unit costs and retail prices are higher; a photocopy, therefore, may indeed be far less expensive than an original copy.

Although the journal that you are reading is not an "information" publication per se, it can be grouped here because it is intended for a limited literary audience. Any kind of publication has certain fixed costs such as typesetting and overhead which are unaffected by the number of copies printed and sold. Confrontation may have cost $10 per page to typeset, yet you or your library may have paid only a few cents per page for it. If Confrontation were to become a casualty of uncontrolled photocopying with a resulting fifty percent circulation drop, that $10 per page would have to be absorbed by half the number of copies. Hence, the price would have to be raised. Photocopies would become less expensive in relationship to the escalating retail price. One can see why certain kinds of publications could become obsolete or prohibitively expensive.

An upholding of the Williams and Wilkins reversal by the Supreme Court and Congress could also indirectly encourage the growth of the cooperative library movement and photocopying of interlibrary loan material. The cooperative library system is a necessary means of dealing with information growth, and interlibrary loans by mail give wider access to little used materials. With photocopying equipment, however, one library could become a duplicator or a "publisher" of materials for another. Cooperative libraries could become publishing centers.

In 1949 ten universities formed a cooperative, which has grown to include seventy-eight institutions in a nationwide system called Center for Research Libraries. Two years ago the Center for Research Libraries received a $450,000 five-year grant from the Carnegie Corporation of New York to develop a national lending library of journals. If copying without restriction is allowed to persist, it is not impossible to imagine that someday the Center could be handling the publisher's traditional printing and distribution functions, purchasing the only copy of each journal issued by each publisher. Of course, the cost of each single copy to the Center would be the publisher's typesetting and overhead costs with a fair royalty for the author, plus a profit margin for the commercial publisher.

Another major cooperative was announced by the Research Libraries Group, which includes the New York Public Library, Columbia University, Yale University, and Harvard University. Joseph Rosenthal, who did the feasibility study on the group, although stating that he thought that publisher's sales loss would be "insignificant," did admit that publications that are "marginally economic will die out," and that those remaining would be more expensive should uncontrolled photocopying be allowed. The April 15, 1974 issue of Publishers Weekly states that "it has been widely reported that the consortium is taking the Court of Claims decision in that photocopying case as a go-ahead signal for wholesale copying."

Obviously, that is not to argue against cooperative library systems. They perform valuable services for smaller institutions, which would otherwise be deprived of access to library collections that only the largest universities can afford. However, by photocopying original materials instead of acquiring them, a library cooperative could compete with a private publisher, reprinting that publisher's materials. To discourage such activity and to compensate the creator of the information, publishers and authors should be in a position to grant reproduction rights and to collect royalties.

There is no simple solution to the problem; the endless discussion on copyright revision in Congress during these past few years attests to that fact. One criteria has frequently been applied to photocopying and possible copyright infringement: if photocopying saves the researcher the trouble of transcribing by hand, there should be no need for him to seek the copyright owner's permission (if such copying is not done for publication purposes). Copying should be prohibited, however, if it is done to enable the user to avoid purchasing the work. The former is an example of "fair use," the latter is not.

In 1968 the National Library of Medicine made 120,000 copies of journal articles, which amounted to about 1,200,000 pages. In 1970 the National Institute of Health made 86,000 copies from medical and scientific journals totaling 930,000 pages. This is what the United States Court of Claims had condoned.

Chief Judge Cowen stated in his dissenting opinion in the Williams and Wilkins reversal that "what we have before us is a case of wholesale, machine copying and distribution of copyrighted material by defendant's libraries on a scale so vast that it dwarfs the output of many small publishing companies… [the] defendant's photocopying ... meets none of the criteria for 'fair use…' While the library may look at the giving of a photocopy as a substitute for a loan, the user and would-be purchaser gets an exact copy of the original article which is a substitute for a purchased copy ... [they] are intended to be substitutes for, and serve the same purpose as the original articles; and serve to diminish plaintiffs potential market for the original articles ... "

A problem which has blocked a compromise solution --- one that has partially vindicated the libraries' position --- is the complex logistics of seeking permissions and processing payments for copying. It would be an overwhelming burden for each library to attempt to deal with each publisher's rights and permissions department. Also, keeping track of the exact number of copies and specific pages is a nearly impossible administrative task, especially when copying is done on a large scale.

It has been suggested that a central clearinghouse be established for processing permissions and payments for photocopying activities. This still could leave a complex bookkeeping function for libraries. Perhaps a more viable solution would be the establishment of an escalating pricing structure. There would be two prices for an order of the same book; the choice of price would be determined by the purchaser's option of photocopy rights. A lower price would be set for libraries and individuals who do not wish the right to photoduplicate the purchased book; a higher price would obtain for libraries which want the right to photocopy the work in whole or in part for their potential users. This latter price would be derived from a formula based on the number of potential users multiplied by the regular list price. (The number of potential users can be arrived at by using student enrollment if an academic library; library cardholders if a public library; or even the size of the library budget.) A cooperative library system would have to consider the multiple institutions it serves.

Representatives of the major library and publishing associations should be able to work out a fair and equitable formula. There is some precedent for such a system. One publisher has sold indexes to certain periodicals, basing the price on the number of periodicals held in the purchaser's collection, or on the library's periodicals budget.

Publishers and libraries must seek compromise solutions and make appropriate recommendations to Congress. If inflationary pressures continue to mount and orders for materials being copied remain static or begin to wane, the retail prices of these publications will undoubtedly rise. Those which are marginal will come under even greater pressure as prices rise. Even a slight loss of orders could condemn a host of journals, symposiums, and technical and reference works to extinction. As these information sources are smothered, pressures for government intercession would mount. Education would lose more than it gained.

The information explosion is indeed a reality. Modern techniques of storing and disseminating this information --- computers, microfilm, and photocopying equipment --- are necessary. Suitable copyright protection and appropriate licensing arrangements would ensure an adequate supply of information for a free society with growing information needs.