Re: [h2o-discuss] Re: Electronic publishing

[Eric Eldred <eldred@mediaone.net>]

John Kwasnik wrote:
> 
>  [From "Jon Garfunkel" <garf@look.boston.ma.us>:]
> 
> >Come to think of it, another key point of publishing is that you can get a
> >person/company to notarize that you wrote a manuscript at a certain point in
> >time. I assume Fatbrain can do this now.
> 
>         This could also be really relevant far in the future, in determining
> when the work falls into the public domain.
> 
>         I was discussing just this with other folk/traditional music freaks.
> There is the question of what qualifies as "public domain".  We have (more
> than we need) resources that advocate for what content is copyrighted:  the
> original authors, their assignees, their publishers, their rights agents,
> etc.  And most intellectual property suits are between parties who both
> claim the rights to a particular content.  But who is advocating for the
> Public Domain?  As of this writing, we don't have court-appointed Public
> Domain Defenders in the U.S.
> 
>         So folks brought up that the only CLEAR proof, at least concerning
> music, would be to show that the work in question was published at some time
> that makes it clearly public domain (presuming that the published copy will
> be accepted as authentic).
> 
>         So Fatbrain could help here ... but you would have to rely on
> someone archiving its content, in the event they go out of business before
> the 22nd century.

there has been a similar discussion on two
mailing lists i belong to, other than this.

there seems to be some agreement that there
are two appropriate choices to preserve
free access to a work.

one is to assert at the beginning of each
copy that the work is declared in the public
domain, as of a certain date.  (failure to
make this assertion would mean that under
current copyright law the work is assumed
by default to be copyrighted, not go into
the public domain as with previous copyright
laws.)  then copies including this assertion
are distributed on the Internet, with 
datestamps.  (it seems that there are
volunteers to help in this process for
public domain books--i don't know about
music.) if anyone contests the public
domain assertion in court, the defendant
still has to appear in court, but can
produce this evidence.  it might not be more
significant as evidence to be able to prove
that the work was registered with one of the
online companies that is now charging for a
datestamp service.

the other choice is to copyright the
work.  many works would fall into this state
simply because the author neglected to make
the public domain declaration.  many others
could be copyrighted even if there is lack
of clear original creative work, since 
copyright does not require that creativity
be proved, as in the case of a patent.  (in
the case of Berne Convention countries as
in Europe, and possibly soon in the U.S.
if the database protection bill passes, it
will not even be necessary to prove that
the work was an original creative work
in order to defend the copyright in court.)
still others might be copyrighted because
of editorial additions such as notes, links,
photos, digitalization, and so on, which
might amount to new derivative works.

the copyright need not be registered, unless
one wanted to collect damages and attorney
fees in court from infringers.  in this case,
it would be all right if the judge declared
the copyright void, since then it would 
generally fall into the public domain instead
of having the other copyright claimant prevail.
one advantage of declaring copyright is to
warn potential abusers away from stealing the
work and trying to exercise exclusive control.
in this sense, the attorney for the defendant
is being paid to defend the public domain, but
perhaps a few of these cases will resolve the
issues for the rest of us.

it is important that any claims of copyright
infringement be defended in court, in order
to prevent the work from moving from the
public domain, or from a copyleft state,
into copyright, and thus users be prevented
from free access to it.  this is the case
also when the work is declared in the public
domain.  however, the Free Software people
state that it is easier to prevent this from
happening if one copyrights and then licenses
the work, rather than simply declaring it
in the public domain.  (as a non-lawyer, i
can't confirm this point, but it seems to me
there must be a lack of case law to base any
predictions on.)

if one does copyright the work, then one has
a choice of licenses to attach to allow for
free access.  most of these licenses have been
worked out for software and not enough thought
has been given to the special problems of books
and music and other digital media.

of course there are still differences between
copyleft and the public domain, such as the
right to copy only part of the work, or the
right to create derivative works.  these don't
arise so much in software so more discussion
needs to happen here about these matters.

incidentally, all this discussion about fatbrain
seems to me extraneous to h2o-discuss.  as the
slashdot discussion pointed out, fatbrain offers
no advantage over self-publishing--they do not
provide any marketing, the most important part
of getting readers, and their model of publishing
seems to me a first-generation electronic model,
simply duplicating the printed page in PDF, not
using computers in any innovative way.  it is
only in collecting the money that they excel,
and here they are charging far too much.

there will come a time when companies such as
fatbrain will attract customers, but they will
have to provide more services, and they will
have to be more exclusive, so as to build a
brand name of reliable titles.  i predict this
will happen first in certain specialty markets
such as romance novels, science fiction,
instruction manuals, and so on.

and in the future we can look forward to more
self-publishing such as mine on the internet,
even commercial varieties.  i see amazon.com
as a temporary resting place in the development
of electronic publishing.  not only can the
distributor be disappeared, but also the
publisher as we know it.

and in the meantime, there will arise another
market, for on-demand publishing, a sort of
hybrid electronic publishing process that takes
advantage of the internet for distribution to
local copy shops that can produce perfectbound
books in one-copy runs, cheaper than most
trade paperbacks (unless they are quite successful
and enjoy huge runs).  this process is still at
the chicken-or-egg stage, lacking enough content
to print.  but authors whose works fall out of
print will be attracted to the economics of
self-publishing this way.  there will also emerge
markets for specialists in book marketing separate
from the publishers.

i don't mind this on-demand publishing process
so much as the fatbrain process.  the print work can
be resold in bookstores and lent by libraries,
and a copy eventually falls into the public domain
when the term expires.  none of those things seem
possible with the other type of electronic pub
such as fatbrain.  (on-demand has been retarded
by the kinko experience, but that was different
in that they tried to assemble books of extracts
from copyrighted books, not print whole books by
permission of the copyright owners.)

and the fatbrain discussion overlooks that
some electronic publishing on the internet
has been commercially successful.  here is one:
http://www.tale.com/
in particular, i suggest this story:
http://www.tale.com/titles-free.phtml?title_id=39
and the wall street journal electronic edition
has been around for years now and makes a
profit (though not from me).

-- 
"Eric"    Eric Eldred      Eldritch Press
mailto:EricEldred@usa.net  http://eldred.ne.mediaone.net/
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