Paperless Publishing-Colin Haynes - Chapter 9 Section 2

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much better defined responsibilities to sellers or buyers than publishing agents. The situation is made worse by the pressures put on agents by publishers not to rock the boat with nit-picking contract amendments in the current very tight and competitive market.

It behooves you, then, to be particularly careful when signing contracts, even when your agent has approved them, and not to hesitate to seek a second legal opinion.

 

Danger signs

Watch out for unacceptable restrictions on your work, not just the particular work specified in your contract, but on any restrictions put on your ability to use the expertise reflected in your book to create other intellectual properties for other media. You might find your professional ability to communicate severely compromised by the wording of some boilerplate contracts.

Bear in mind also that the rights staffs at publishing houses are themselves coming under increasing pressure to cope with a flood of complex requests to use intellectual properties in a variety of media and applications, particularly collections on CD-ROMs. Not only do they have problems coping with these requests, in some houses there is the tendency not to even process the more obscure and less lucrative requests that come in, nor to effectively police unauthorized publications and infringements of their own and the author's rights. This situation can cost you lost revenue, and might also deny opportunities for your work to be published in places where, even if the revenue is minute, the exposure can be beneficial.

Many print publishers have not even coped effectively with the rights issues created by the advent of photocopying, so they are even less equipped to deal with the far more complex issues raised by electronic publishing media, in which the intellectual property is used in a virtual reality form.

Literary agents spelled out some of these dangers in their 1993 position paper, but the Authors Guild and the American Society of Journalists subsequently took a much stronger stand on behalf of

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writers in their joint position paper. Get a copy of this, and any later such documents, if you are a member of either of these organizations. The paper includes suggested clauses to add to contracts that protect your electronic rights if the publisher's contract fails to do so.

Members of the Society of Authors in Britain, and other organizations for writers in other countries, offer contract-review services that members can consult on such issues. In general, experts advising writers rather than publishers recommend that, if you contract to assign your electronic rights, you should be compensated appropriately by advances and royalties, just as you are for printed works. You should also try to retain some control of the media, the form, and the content in which your work may be used if your publisher wants to grant licenses to third parties. Plus, of course, when your rights are sold to third parties, you should get a proper share of the spoils.

There are, among the new entrepreneurial entrants into electronic publishing, those with few scruples and no long-term sense of commitment who will see writers and other creative artists as "marks" ripe for the picking. There obviously will be large numbers of both winners and losers as a result of this new electronic publishing wave. You need even more savvy awareness of what is going to reduce the risk of being among the losers. Be careful, therefore, about any actual or implied contractual relationship that you enter into regarding your intellectual property rights. The warnings about publishers apply at least as much to agreements with electronic bookstores and similar on-line services.

 

Fears of plagiarism are a particular problem for scientists and academics. It is obviously much easier for intellectual thieves to clip other people's ideas and results from electronic documents and patch them directly into grant applications, papers, and project reports than it is to abstract them from printed journals. As paperless publishing enables so many longer papers to become available, on subjects that

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would not normally get into hardcopy, so the vein of intellectual effort to be mined by plagiarists gets richer, and offenses harder to detect.

You can add various types of identification coding to an electronic text that can help identify if it has been copied--the digital equivalents of watermarks on paper. There are no fully effective technological solutions to this plagiarism problem, however; it must be tackled as part of the overall issue of ethical behavior in the professions. The old trick of helping to establish copyright by mailing a hardcopy of your manuscript to yourself by recorded delivery in a sealed envelope can be a worthwhile protective measure before letting your research results or knowledge loose on the Internet.

If you want to keep abreast of what is happening in the field of intellectual rights, there is a wealth of material obtainable via Internet from the electronic conferences and back issues of the American Association for the Advancement of Science's Professional Ethics Report, and the newsletters of the Office of Research Integrity.

 

A particular point for you to consider is that your electronic works now become more likely to be incorporated into compilations or titles in ways that you cannot anticipate and in places far away, without your knowledge. The national boundaries defining markets in print publishing become far less significant with virtual publications that can move internationally so easily. Consequently, it is becoming less practical to have an agreement releasing, say, North American first rights only, and assume that you still have United Kingdom, Germany, or Japan clean and clear for other rights negotiations. Your e-book might have been widely distributed in Japan more quickly than it circulated in the U.S. or Canadian markets.

There is a particular hunger around the world for material to add production values and bulk to CD-ROM titles. Quite apart from monetary considerations, you might not want your words or pictures to be part of some of these works. You might already have signed away your rights to control these situations, which could prove to be

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more of a problem in North America than Europe. Intellectual property rights in Europe have always tended to give writers more in the way of "moral rights" over how and where their creative works are used than in the U.S., but this could change. There is a lot of variation among older contracts that did not anticipate the significance of intellectual property rights in electronic formats. The key is to check on old contracts, and carefully review new ones.

Some countries will pose particular copyright problems. These are easily identified because they also have rotten records for pirating books and software. Expect, for example, those Chinese with computers and access to on-line services to get hold of the increasing number of English texts available electronically, then to pirate them on disk and on paper. In Europe, too, if your works are pirated in, say, Italy, you have realistically much less chance of protecting your rights than in Germany, France, or the U.K.

 

If you supply works that are likely to be used in controlled corporate or institutional situations rather than by individuals, you might well be able to implement some kind of electronic metering system to ensure that you are paid royalties properly. The campaigns conducted by the Software Publishers Association and the Business Software Alliance have been quite effective in making organizations more conscious of the dangers of piracy. It is now routine for corporations to conduct audits of the software being used on networks and individual workstations, and to have procedures in place to ensure that proper licenses and royalty payments are processed. The Association of Shareware Professionals also has considerable expertise in corporate licensing situations, and is well worth joining for this, and its other activities to protect and guide those distributing software as shareware.

As the large software publishers have found out, you run comparatively little risk of your work being pirated if you supply an evaluation copy to a large organization or a responsible small business. If they want to carry on using your material, you will usually be able to strike a mutually acceptable licensing deal. Depending on the type of work and how it will be used, there might be a one-time

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fee, periodic payments possibly linked to technical support and the provision of updates, or an access royalty every time an employee or member uses your material.

 

Locks and keys

Hardware and software locks and keys are available to perform the required metering, but the cost and added complexity might outweigh any risk inherent in a straightforward, written agreement based largely on trust. If you are marketing some form of database, however, you might be able to borrow a monitoring technique used quite effectively by the renters of mailing lists.

Many address lists are now supplied in electronic formats, not preprinted labels as was usual in the past. Lists already digitized are far easier to copy if a renter wants to keep on using the list without making further payments. Most lists, therefore, include monitoring addresses to which the owner of the list has direct access and will be able to tell immediately if the list is being used without payment, or in some other unauthorized way. You might decide, in your nonfiction work, to supply an information resource or some other kind of contact that helps you monitor how your title is being used.

You have a built-in protection against theft and piracy if your work is physically substantial, comprising large files. There just might be no incentive or financial advantage for someone to try to download a 100,000-word book with a standard modem handling 2400 bits per second--the telephone and on-line charges could be more than the cost of purchase. This will not always be so, however, particularly as faster modems become more widely used, file compression improves, and optical cabling make very fast transfer rates practical.

 

Watch out for royalty snags with authoring and reader programs

It is impossible to give timeless advice on how to cope with all the licensing issues that could arise over the software that you might incorporate in your electronic publications. In most cases, the

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provider of your e-book authoring or compiling program will state very clearly the conditions under which you can distributes the "reader" program module.

Some of the shareware and commercial programs, typified by Writer's Dream and Common Ground, have adopted a policy of placing very few restrictions on their reader modules. If you are a registered user of the authoring program, they encourage you to distribute the reader without badgering you for additional contracts, permissions, and royalty payments. Others, like Adobe's Acrobat and IBM's BookManager are, at the time of writing, far more restrictive. Some software publishers say they will negotiate each case on its merits and not set clear guidelines, which poses real difficulties if you spend a lot of time compiling your e-book in a certain way, and then find that you are going to have to pay an inordinate amount in software royalties for every copy that you sell.

Multimedia publications present particular problems because it's much more difficult to recompile if you do your original production work in an authoring program that proves later to present practical or legal complications. You might even create a title with no intention of distributing it beyond the corporate environment for which you have licensed reader or viewer software available. Then new circumstances arise, you want to distribute more widely and generate sales revenue, and you run into problems. When selecting your authoring program, therefore, take very serious account of the policy and prices for the reader modules to ensure that they are as compatible as possible with your ultimate marketing and distribution objectives.

For example, the legal issues raised by Compton's NewMedia patents on search systems for multimedia CDs were not clear as this book went to press. Patent, trademark, and copyright disputes can drag on for years, as has the legal battle over "look and feel" graphical user interfaces. It might be best to select software that is less likely to create any difficulties, even if it is somewhat less powerful than the alternatives.

There were even some early legal skirmishes over rights to the very term electronic books. At one stage, Sony distributed material claiming the phrase as a trademark, but quickly pulled back from that

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position. Now it seems universally accepted that the term is a generic description of a type of publishing, and its use should pose no problems for you. However, if you create words for your titles--diskzine for a magazine on floppies is a good example--you might well find that someone else has established a prior right of use.

When registering marks or business names, or copyrighting material, you might want to strengthen your degree of protection by incorporating words such as Electronic Books along with your business name or publishing imprint.

 

Although this is all valid cautionary advice about some of the rights issues raised by electronic publishing, there is the danger of becoming so concerned about protecting your literary properties that you are unable to exploit properly the new opportunities being offered. I support the advice that Ted Husted, a distinguished pioneer in electronic publishing, gives authors that they should not be overly concerned about piracy. It does not happen as much as many people think, and you cannot do much to prevent it anyway.

The publishing world has come to accept multiple, nonpaying, readership of printed books and magazines, and will have to accept that many, if not most, of the readers of electronic publications will use copies for which they have not paid. You can, however, try to gain from this greater exposure by building incentives for further sales and revenue. Such an incentive is built into Ted Husted's authoring program Dart, which he distributes very liberally. As you become familiar with the program and learn more about it, you will find many good reasons for becoming a registered user and staying in touch with Ted Husted and his UserWare software publishing enterprise.

One of the most attractive incentives to register is that UserWare sponsors the Digital Co-op, which helps to coordinate authors' and publishers' cooperative marketing efforts. Compile your publication and send it on a disk to UserWare, or upload it to the Digital Publishing Association's bulletin board and notify UserWare, and they

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will place it for you on CompuServe's Electronic Publishing section. It's this sort of extra effort to help customers or readers that pays big dividends in the long run by building their loyalty.

Clifford Skoog, of El Cerrito, California is an example of how you can allow your intellectual property to be distributed and used freely as a way of attracting registered, paying subscribers, while protecting your rights at the same time. Clifford markets his PC-Shakespeare computerized Shakespeare concordance and study program by releasing a freeware sample comprising six of the plays. He requests a $5 donation if the sample is used in a course for academic credit, and this is credited against the $40 price for the full program.

Economical site licenses are available to encourage use of the program in schools, colleges, and other institutions. PC-Shakespeare demonstrates the wisdom of being prepared to give away a generous sampling of your title to ensure that it really demonstrates its value to potential users--but make very clear up front just what rights, if any, you are relinquishing.

Do not donate into the public domain any works that you want to protect in any way. Even if you do not solicit payments, you might still want to establish the right to control how your words are used. You need not give up anything, even the right later to impose charges, if you distribute a fully functioning and complete title on-line. Just state clearly in the opening screens exactly what rights you claim, and under what conditions you authorize the use of your creative efforts.

Shareware files can circulate for years, so it might be a very long time before your e-book gets to many of your prospective purchasers or subscribers. In these circumstances, when releasing a complete, fully functioning edition as shareware, make your registration pitch on the merits of purchasing the latest, much revised, edition.


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