Monday, October 7, 2013

NYLSLR: The eBook Copyright Page is Broken

Somehow it slipped my mind that my article "The eBook Copyright Page is Broken" was published in the New York Law School Law Review in April. And I am still not a lawyer! Here's the meat of the article:
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.
In February, I wrote about ebook front matter and back matter and there's more work to be done in this vein.

The last footnote deserves some glossing. In it, I assert that the ccREL submission for marking Creative Commons status of web pages is currently in conflict with the EPUB 3 standard for ebooks. While that's technically true, it's a bit misleading. A better way to say it is that developments in HTML5 and EPUB3 have made ccREL's approach archaic. The metadata machinery in EPUB3 and HTML5 is fully up to the task of expressing and applying Creative Commons licenses. What's lacking is consensus around which of the available mechanisms to use. Since the RDFa vs. Microdata in HTML5 controversy has not yet fully shaken out, you can't really follow ccREL as written, so we'll need to have some patience.
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