August 23, 2016 by
In our latest formal submission to the US Copyright Office on August 18th, the NWU and two other writers’ organizations provided an overview of the “new normal” for writers seeking to earn a living in the digital age. We also discussed how copyright policies designed for publisher-centric business models and old media serve to deprive writers of our fair share of revenue from emerging digital markets.
Publishers have long been required to submit two copies of the “best edition” of each printed “work” to the Library of Congress’ collection. But should a similar “mandatory deposit” rule apply to the contents of
—e-books
—downloadable files
—email newsletters
—blogs
—websites
—Facebook
—social media postings
—text in mobile apps/electronic games
—other digital formats?
What types of “e-books” or “online serials” should be included in that requirement? How would it work? Or would it work at all?
Another important question to ask is what effect would a mandatory deposit requirement for everything we distribute online have on writers’ ability to engage in normal commercial exploitation of our written work? That’s the legal test established by the Berne Conventionand other international copyright treaties.
The Copyright Office has begun demanding that publishers of some “electronic serials”—periodicals published only online or in electronic formats—deposit copies with the Library of Congress on a trial basis under an “interim rule” adopted in 2010 following public notice and comment. Last year, the Library began making these deposited copies available for viewing and free copying (!) on terminals at the Library of Congress. Now the Copyright Office hasproposed to expand that interim rule for digital periodicals to e-books. Any user of the Library of Congress would be able to make one free, complete printed copy of any e-book deposited with the Library.
The Copyright Office has again asked for feedback from stakeholders and members of the public. So we’ve told themwhat we think: Librarians mean well by trying to preserve the work we publish online. But they don’t realize the many ways that this and other current and proposed copyright laws and procedures interfere with emerging new business models for new media that can better serve the interests of both readers and writers.
In surveying the landscape of new business models for new media, we note several characteristic trends in writers’ income sources:
- Revenue from written work is increasingly derived from distribution and licensing in electronic rather than hardcopy (printed) formats.
- A growing percentage of writers’ revenues comes from “self-publishing” rather than through intermediaries such as traditional publishers. Most self-publishing is “under the radar” of either traditional publishers or librarians.
- Exploitation by freelance writers of rights to electronic distribution of our work is increasingly focused on the “long tail” of our personal backlists, rather than solely or primarily on the earnings from our newest writing. Digital self-publishing makes it possible for us to re-issue and earn money from older work that was out of print.
- Exploitation of written work through electronic distribution is increasingly “granular” and focused on the exploitation of shorter content elements. We can package individual articles, stories, poems, etc. as $0.99 digital downloads. We can also market them as short-form e-books or license them or generate advertising revenue from them as Web content.
- Electronic distribution is significantly and increasingly dynamic and personalized. Online, we don’t have to “fix” a work in a specific “edition.” Updates can be as frequent as we like, and each visitor to the same URL can receive — and often does — a uniquely customized page.
- Licenses for electronic distribution of written work are routinely time-limited, and the enforcement of these license time limits is crucial to licensing revenues.
Our comments go on to explain the implications of these trends for copyright law and policy, including the latest proposals from the Copyright Office
We were encouraged by our meeting last month with the Copyright Office on related issues, and we are hopeful that we are beginning to make the Copyright Office more aware of the implications for writers—and not just for traditional publishers—of their regulations and recommendations to Congress.
The comments submitted by the NWU were drafted by NWU Book Division co-chairsEdward Hasbrouck (San Francisco) and Susan E. Davis (New York), and were co-signed by the Western Writers of America and the American Society of Journalists and Authors. We welcome and thank our collaborators for joining us in this important advocacy work for writers’ rights and for public and government understanding of our livelihoods.
We look forward to continuing to work with other writers’ organizations and the Copyright Office to make sure that our rights are respected and protected.
Images from Creative Commons
ANNUAL CONFERENCE ON EUROPEAN COPYRIGHT LAW 2016
SEA Panamá 
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