The eBook Copyright Page Is Broken

The eBook Copyright Page Is Broken

E.S. Hellman*

Cite as E.S. Hellman, The eBook Copyright Page is Broken, N.Y. L. Sch. L. Rev. (Apr. 24, 2013),
https://nylssites.wpengine.com/nylslawreview/the-ebook-copyright-page-is-broken/.

The process of digitizing a printed book involves much more than the conversion of ink on paper to bits in a file. Functional aspects of the book must be mapped to digital equivalents. Thus we have tables of contents and indices that turn into hyperlinks and spine files, and page numbers that turn into location anchors and progress indicators. One aspect of the printed book that has not received careful study is the copyright page. A cursory review of copyright pages reveals that almost nothing has been done to make them functional in the digital environment. The ink turns into text, but it’s dead text that quickly rots and may produce a stink.

In a printed book, the copyright page serves a number of purposes. Mostly, it presents metadata about the book. There is descriptive metadata—the title, the author’s name, the publisher’s name, the date, and the place of publication. There is cataloguing metadata, intended to help libraries process the book into their collection. There are ISBNs and call numbers. There is even an odd set of numbers denoting the printing history, laid out in a format designed around the limitations of movable metal type. And there is a copyright statement.

This essay will focus on the copyright statement, but it is hard to pass by the somewhat comical observation that digital books being published and sold today kowtow to the requirements of metal type!

The traditional copyright statement is thoroughly and fundamentally broken. Consider the simplest possible case of a single copyright holder:

© Eric S. Hellman, 2013. All Rights Reserved.

This is broken in the following ways:

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.

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?

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.

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.

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.

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.

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.

When a publisher attempts to attach a license, such as those published by Creative Commons,[1] to an ebook, the resulting copyright page is almost guaranteed to be ugly at best. For example, Lawrence Lessig’s book Free Culture ironically has a copyright page from hell.[2] It features this friendly statement:

Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.

The scanning, uploading, and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage electronic piracy of copyrighted materials. Your support of the author’s rights is appreciated.[3]

At the same time a page has been inserted at the front of the PDF version stating,

This PDF version of Free Culture is licensed under a Creative Commons license. This license permits non-commercial use of this work, so long as attribution is given. For more information about the license, click the icon above, or visit http://creativecommons.org/licenses/by-nc/1.0/. [4]

So which copyright statement governs? There’s no way for a user to tell which of the contradictory statements is correct.

Similarly, Peter Suber’s book Open Access, was originally published by MIT Press with contradictory statements on the copyright page.[5] Subsequent “printings” had a corrected page, reproduced here:

© 2012 The MIT Press. All rights reserved. Subject to the Creative Commons licenses noted below, no part of this book may be reproduced, transmitted, or displayed by any electronic or mechanical means without permission from The MIT Press or as permitted by law.

This book incorporates certain materials previously published under a CC-BY license and copyright in those underlying materials is owned by SPARC.

Effective June 15, 2013, this book will itself be subject to a CC-BY-NC license.

For information about special quantity discounts, please email special_sales@mitpress.mit.edu.

Library of Congress Cataloging-in-Publication Data

Suber, Peter.

Open access / Peter Suber.

   p. cm. — (MIT Press essential knowledge)

Includes bibliographical references and index.

ISBN 978-0-262-51763-8 (pbk.: alk. paper)

ISBN 978-0-262-30098-8 (retail e-book)

1. Open access publishing. I. Title.

Z286.O63S83 2012

070.5’7973—dc23

2011038297[6]

The “corrected” page is more useful for the determination of licensing status than the first, but there is no telling which parts of the book are under a CC BY-NC and which parts are already under a CC BY. The practical effect is to apply the NC restriction on the entire book, in violation of at least the spirit of the CC BY license.

Creative Commons licenses aim to enable more use by the consumer and, thus, place a larger burden on the copyright page. There are no standards[7], no long-accepted practices, and no recommended best practices for how they should be applied to books. Publishers frequently have embedded publishing processes that are not sufficiently flexible to accommodate the variations that might be sensibly applied for CC licensed books. It is not surprising that these “copyright pages from hell” are so common.

If the consumer or organization wishes to reuse or redistribute a Creative Commons licensed book, they often need robust assurances that a Creative Commons license has been properly conveyed. The modern publishing environment features frequent mergers and acquisitions, spotty record-keeping, automated DMCA takedowns, and copyright trolls.

Suppose copyright to a work becomes the property of a “troll” that wants to extract money from people and institutions that have used a work in good faith with the understanding that it has been Creative Commons licensed. Although CC licenses are irrevocable, copyright trollery can still happen. The troll will first send DMCA takedown notices to websites making the work available on the Internet. In the current legal environment, few websites are willing to resist takedown notices from the legitimate owner of a copyrighted work. The troll may then issue demand letters to the users of the copyrighted work. In most cases, the user will not have kept careful records of the copyright conveyance and, even if they have, they may be unwilling to bear the expense of defending against an infringement claim in court. How does a user defend a CC-licensed use against such an attack?

This might seem farfetched, but it seems to happen. Dan Heller, a writer about the photography business, described on his blog an incident of “gaming” CC licensed photographs. Even if the incident he describes were fictional, the fear of it happening has a dampening effect on individuals and institutions that seek to avoid litigation.

In this respect, today’s copyright page fails as a license declaration.

The low-tech way to address this failure is to engage an intermediary that can attest to the proper conveyance of a license. The intermediary maintains a registry of CC license conveyance and is available to provide evidence of the conveyance should a CC-enabled use be challenged. The author’s company, Gluejar, Inc., performs this service.

A high-tech approach is also possible. Digital signing technology is now common and easy to implement. The EPUB3 standard for ebooks includes a specification for a “signature file” for use in this sort of application. The rights holder can sign the licensed content together with the license and a public key, enabling anyone to verify securely, without reference to a content registry, that the content has been CC-licensed by the rights holding entity.

Despite the availability of these potential fixes to the copyright page, community agreement is needed to make it work well. Beyond the copyright and licensing area, there are many other opportunities to migrate the functionality of the printed copyright page into the digital realm. Now is a good time for the digital publishing community to start fixing the copyright page.

 


 

* President, Gluejar Inc., Montclair, New Jersey.

[1] The Creative Commons licenses are published at http://creativecommons.org/licenses/.

[2] The PDF version of Lessig’s Free Culture can be downloaded from the Internet Archive at http://www.archive.org/details/FreeCultureHowBigMediaUsestechnologyAndTheLawToLockDownCultureAnd

[3] Lawrence Lessig, Free Culture (2004).

[4] Id.

[5] A copy of the original copyright page is available at http://go-to-hellman.blogspot.com/2012/10/oa-cc-by-mit-wtf.html; the revised copyright page is referenced at http://cyber.law.harvard.edu/hoap/Open_Access_(the_book).

[6] Id.

[7] There is, however, a W3C submission for “ccREL”, a vocabulary and set of recommendations for expressing and embedding the licensing options used in the CC Licenses. These recommendations are currently in conflict with the EPUB 3 standard for ebooks, which may explain why they appear to have no adoption by the book publishing industry. Even the PDF book, Code V2, used as an example is not being distributed with the recommended metadata. ccREL is nonetheless a fine starting point.