Copyright Could Save Your Life

Posted filed under Resource.
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Books aren’t sold by weight. Creative work is intangible – it doesn’t have real mass – and society deals with that problem with the concept of copyright. It’s a common word, but most people misunderstand what that means. Reading this article, I want you to stop for a moment and consider what you have created, and what you actually own.

Lemma: Read’s Impossible Pencil

In 1958, Leonard E. Read wrote an essay on pencils. It’s called I, Pencil. If that doesn’t sound a promising start, please read it – it truly is fascinating. Read’s point in short is that “not one person on the face of this earth knows how to make a pencil”. There are just too many processes involved – too many disparate skills, even to make something so mundane.

From Mr Read to Mr Wright. Craig Wright (of Bitcoin fame) took up this challenge as a hobby, and spent 12 years learning all the skills involved to make a pencil from trees and rocks – from forestry and mining to steel work and graphite making. And so, after more than a decade of effort, he had these three things that he didn’t have before:

  1. A Pencil.
  2. A Great Story.
  3. Accrued Knowledge and Skill.

But of these, the only thing he truly owned was the pencil.

Tangible and intangible

How do you write? What medium do you use? Pens, spell checkers, keyboards, and touch screens are all extrapolations of Read’s Pencil. Before you even write a word, you have purchased Read’s pencil. In one sense or another it is sharp and perfect, and you can now start to put in effort of your own.

Just as much skill goes into producing written works as pencils. Books take editing, publishing, designing. Software needs to be spec’d, written, compiled. Illustrations need to be illustrated – and all that isn’t half of it. At the end of that effort, what will you own? In the simple case that you’ve written a book, just like Mr Wright you’ll have three new things:

  1. Books.
  2. A Great Story.
  3. Accrued Knowledge and Skill.

And, just like Mr Wright, you (and/or your publisher) own the physical goods (we’ll talk about the intangibles later). Your books themselves will ship to all good book stores with a respectable RRP and, like the pencil you started with, they’ll be bought with cold cash and consumed. Easy.

Unlike Mr Wright, it’s not just a great story to tell: you have expressed your story from an idea into something recognisable, by writing it down. Congratulations! You have developed your own intellectual property. Although the books sell for cash, it’s the IP that really counts. People will buy your book and they’ll own the pages and ink. They’ll be able to enjoy the ink and the misprints, but that won’t give them any rights to the text itself. They get the tangible, but the intangible remains yours alone.

From thin air

The difference between your story and Mr Wright’s is that you have expressed it in words of your own. Nobody can own an idea in the abstract. The law says, though, that if you pin down that butterfly, it is yours to own. No matter who thought it up first: it’s the person who acted on their idea that owns it.

It may seem harsh that even the greatest ideas derive no protection, and it has some unexpected downstream effects. Your grandfather’s recipe for parsnip pie is protected in the sense that the written words are protected, but the substance of the recipe itself – the information and its presentation – could be re-used without problem. Another example: software. There is no copyright in the way a computer program works: the protection extends to copyright in the source code. Effectively this means that someone else can see your software, code their own to function exactly the same, and release it with impunity. This is not unqualified (some computerised inventions can be patented, and the copier will need to be careful to change the User Interface, avoid trade marks and to paraphrase away from any text he finds), but it is not inaccurate either.

Occasionally one hears about cases that overstep that boundary, such as the copyright dispute between Nancy Stouffer and J. K. Rowling, and the various challenges asserting that Who Wants To Be A Millionaire copied the format of other games and shows. These are sad stories, which are usually motivated by righteous feeling but are still wrong. Hopefully, the rule rings true when you consider the third point in the lists above: although nobody can take away your knowledge and skill, the knowledge itself is not yours to own. If you express it in a particular way, though (textbook, diagram, video tutorial or recipe), you own the rights to that product, and all is well for that.

Put another way, until you have defined the scope of your idea by actually doing it, it’s not just nebulous: it does not exist. Creativity is not just a general concept: to be creative, you need to literally create a thing from nothing.

Binary situation

Mr Read’s pencil is a physical object, and ownership is simple. Mr Wright’s Bitcoin (he is thought to be one of Bitcoin’s inventors) is a complete change in how stuff can be owned – neither cash in your pocket nor credit card accounting. This is an example that moving from the physical case to the digital case is non-trivial; it takes insight and some mental gymnastics to make things work.

The same exists in the publishing industry. I’ve shown above that the copyright exists separately from a book itself (buy the book, don’t get any rights to the text). But while the same principle applies in the digital world, the economics are flipped on their head.

When you buy an eBook or a software download, there is no actual ownership. Nothing virtual, and nothing physical.

What you get is a licence. Whether you “own” a licence is a matter of semantics, but a licence in this case is just a contract giving you permission to keep a copy of the text on your machine. It comes with obligations on your part and subject to all sorts of conditions and terms. “Buy now” is a misnomer: digital sales are neither buying nor borrowing.

So it is the opposite of the physical book: you get no ownership; all you get is permission to use the copyright. And there is nothing wrong with that, except that it can be surprising to a society that’s used to using cash you can scratch a window with. We don’t even have a satisfactory vocabulary for it, other than prepending “e” to words we’re used to.

Your digital works are an ePencil.

How to do “copyrighting”

You can’t. There is no verb “to copyright”. At least in most countries, copyright is automatic, so you don’t need to do anything to own it other than keep on creating in the same way you are doing already. All that is required is that your work must be:

  1. Reduced to a Material Form.
  2. Original.
  3. The result of the authors’ Skill and Effort.

Or to paraphrase: it must exist; it must be creative; and it must be all your own work.

Happily, in the digital age a ‘material form’ doesn’t need to be penned with quill and ink: your typed manuscript counts just as well. And these criteria This includes collaborative efforts – most publications are collaborative in some way, deriving creative input from a multitude of skilled people, all of whom can own copyright jointly. Since copyright protects literary works, source code, dramatic works, artwork and music, very many things will be mixed efforts especially when crossing into to the digital domain. (Often, when works that are done as smaller parts of larger creative effort, the main author will get the copyright assigned to them, but only if they remember to.)

Other specific rights exist that fall under the copyright umbrella. These are the “related rights”, giving exclusivity in various bits of the text. Publishers, for example, get specific recognition in the form of the Publication Right (for the first publisher of works that are out of copyright) and rights in their typographical arrangements. Both last 25 years from publication.

There are also four “moral rights” specifically to protect authors. These are the right to be identified as author; the right to object to false attribution; the right of integrity; and the right to privacy. The first two are self-explanatory. The right of integrity allows an author to object to modifications to a work that are ‘derogatory’, ie. that would distort the work or damage the author’s reputation. The right of privacy simply provides that private photographs or film should not be published without consent.

Self-preservation

What do do with copyright? Keep it, or sell it! You will own your own copyright unless you assign it to someone else, which is usual for literary works only when they are ghost-written, done as commissions, or specific rights (e.g. film rights) are sold. Depending on contractual terms, if copyright is assigned that will usually mean money goes to the author, as a separate matter to any publication contract, royalty deal or advance. Alternatively, the author might just licence the rights in those situations, and derive a royalty.

You can also give it away. In the EU and most other countries, copyright lasts your entire life time, and survives you by 70 years (in other countries, the period varies between 50 and 95 years). That’s long enough to provide you an income, and go on to provide a benefit for your children and their children. By the time your copyright expires, your first editions will be antiques. Next time you read a copyright clause in your contract, think about the long game.

Because the clock doesn’t begin to run until after you die, perhaps the most self-interested thing you could do with your valuable copyright is assign it. The recipient will then have a financial motivation to keep you alive (the opposite of a life insurance policy). Imagine publishers and movie studios of the future running comfortable retirement homes for their most valuable authors.

Tristan Sherliker is an intellectual property solicitor with EIP Legal. He advises on protecting and making use of copyright, patents and trade marks, as well as defending them in litigation. Tristan welcomes email at tsherliker[at]eip.com

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