William Styron may have been one of the leading literary lions of recent decades, but his books are not selling much these days. Now his family has a plan to lure digital-age readers with e-book versions of titles like “Sophie’s Choice,” “The Confessions of Nat Turner” and Mr. Styron’s memoir of depression, “Darkness Visible.”

But the question of exactly who owns the electronic rights to such older titles is in dispute, making it a rising source of conflict in one of the publishing industry’s last remaining areas of growth.

via Authors and Publishers Argue Over Digital Rights to Older Books — NYTimes.com.

While the dispute is, in many respects, not really new, I still think its interesting that the courts so far seem to be on the side of authors (but remember, this is really about individual contract interpretations, not really about broad categories of disputants, although broad cases could influence future decisions):

In 2002, Random House sued RosettaBooks, an e-book publisher, for copyright infringement when Rosetta signed contracts with authors — including Mr. Styron — to release digital versions of previously published novels.

In its suit, Random House relied on wording in its contracts that granted it all rights to publish the works “in book form.” In its letter to agents on Friday, Random House invoked the same wording to defend its right to publish e-books of backlist titles.

In 2002, a federal judge in Manhattan denied Random House’s request for a preliminary injunction against RosettaBooks, ruling that “in book form” did not automatically include e-books. An appellate court similarly denied Random House’s request.

What I find most telling in this is the argument that authors and their estates are seeking alternatives to traditional publishers because those publishers are not offering a very competitive royalty rate on digital editions. After all, they argue, digital works costs less to produce and distribute — so publishers, who do less work, deserve a smaller slice of the pie.

Obviously traditional publishers do not like this, since it cuts into their potential profits — and backlist titles account for a significant amount of steady income for publishers.

Still, if the market can support paying authors more — isn’t that the “natural” path the book industry will take in the future? The Web certainly can support non-traditional publishing avenues, and while these leave off many of the benefits publishers provide (marketing and editing, especially), why couldn’t electronic editions find a different way to market? (This is especially true when the editing has already been paid for through earlier, hard-copy sales. And are publishers really pushing backlist publications enough to justify their payout?)

Can traditional publishers fend off this move through litigation and forceful contract negotiations? Or will we see increasing alternatives to traditional publishers in the e-book realm?

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Randy Picker responds by saying:

We should review how the public domain works. The public domain is sold every day. Every time you buy a copy of Hamlet you are paying for a public domain work. I do H.G. Wells’s The War of the Worlds in my copyright class on this starting with Project Gutenberg — free, of course — and then heading to Barnes & Noble and Amazon, where the prices range from $2.50 to $13.95 see slides 3 to 13. That is precisely the nature of the public domain: anyone can use it for whatever they want, including selling it. The AP is fully within its rights to sell public domain content just as Amazon does every day.

via The University of Chicago Law School Faculty Blog: The Associated Press: Selling the Public Domain?

To restate: there is absolutely nothing legally wrong with the AP licensing or selling public-domain content. To paraphrase concepts from the open source world, public-domain content is free (as in speech, “libre”) not free as in beer.

As Picker puts it, “Public domain content is outside the copyright system. Again that is its nature.”

You have no right to access of public-domain materials (perhaps unfortunately). You have no right to get them without paying. Instead, such materials are free for anyone to use in any way they wish. The AP can sell the material. You can sell the content. Anyone can do with it what they wish.

(A side note: a license by the AP to such content may be invalid, in the sense that once you have it, you can do with it as you wish — although potentially you may still breach a contract you have with the licensor. Picker, for example, writes, “Ordinary rules regarding contracts and licenses should apply to circumstances under which someone is given access to public domain content.” I can envision counterarguments. In other words: it’s complicated. Thus the existence of lawyers.)

Bizarre? Unfair? Strange? Perhaps. But consider that the protections of copyright are a modern addition to the world. Pre-18th century (to grossly simplify things), if you sold your manuscript, you sold the “copyright” as well. All intellectual creations were, in a sense, in the public domain (although the concept didn’t quite exist — without modern copyright, there is no concept of “public domain” either — there is simply one state, not too).

Modern copyright changed this, and arguably encouraged creation — but it also locks up works in various ways as well. Thus the need for a balance, I believe, between the protections of intellectual property (which is not quite like ordinary property, which is why you only “infringe” IP) and the dizzying freedoms of the public domain.

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Ed Kohler points us to a long, but fascinating blog post, by Stuart Shieber, a CS professor at Harvard, discussing the somewhat ridiculous copyright situation that many academics deal with in trying to promote their own works. I’ve heard similar stories from other professors I know, but this one is worth reading. Shieber points out the importance of academics getting their research published in journals, but how annoying it is that most journals require those academics to give up all sorts of rights — including the right to distribute their own research on their websites. However, he notes that most published academics simply ignore this rule, and you end up with a “don’t ask, don’t tell” policy. Even though they’re legally prevented from putting up a PDF of their work on their website, they do so anyway, and journals just look the other way.

via The Ridiculous Copyright Situation Faced By Academics Who Want To Promote Their Own Research | Techdirt.

Traditional journals and publishers make this deal required for authors, especially in the sciences. In medical journals, the NIH open-access mandate has opened up this to some extent, since it requires authors to get consent to put their article in PubMed Central. The restriction is understandable, though, given publisher’s old business models. But the world is changing, and journals — scientific and otherwise — are having to adapt.

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