Sunday, May 10, 2015

Getting a grip on what copyright means to me

This is a long post - just warning you!

There are times when copyright feels to me like a slippery eel. One I can see but I can’t quite get my hands on what it really means. I’m a writer. I’ve negotiated a lot of my own contracts. Yet in today’s world it seems to me that more and more people are making copyright more and more like that eel. So I thought I would talk about copyright simply in terms of what it means to me, the implications and ramifications, and what I see as the worst case outlook.

Not that long ago, it was pretty clear. I signed a standard contract for my book, in which I retained copyright of the work (technically) but licenced it to the publisher. The clause in the contract that was my “out” was the termination clause. If the book went out of print, rights returned to me. From there, I might try to get a new publisher, I might publish it myself, I might not do anything. But because the copyright was mine, it meant I was still entitled to things like Public Lending Right money and Copyright Agency money.

Then came digital publishing, and suddenly the termination clause became a bit of an issue, because if a book could be kept “in print” forever via a digital file, when would I ever get my rights back? For some contracts I was able to negotiate a termination clause that still stipulated OOP (out of print) referred to print copies and so digital went with that. That is no longer the case. Now, if you licence a work to a publisher, they can keep the book in print via digital means forever.

I suspect this is where the rot has set in. Many publishers (and others – oh, the others) have worked on the principle that once you “sell” your work, the digital environment means it is no longer yours. It belongs to the publisher, forever and a day. It’s a work of words, easily copied, easily transmitted in a variety of ebook formats, and easily passed on to anyone who wants it for nothing.

I think the only reasons this hasn’t yet happened in the same way music and movies and TV shows have been pirated are twofold: one is that for many young people (the biggest percentage of illegal downloaders) books aren’t of much interest to them; the other possibly is that the perception of the starving writer is still pervasive enough that a small guilt factor comes into play. I also think the public and school library system means when people can get books for free by borrowing, they don’t bother as much with pirating. I know for myself, the easy availability of ebooks from my various libraries means my Kindle purchases have nosedived!

I’ve been reading this week about copyright issues, and how in the music industry, singers and bands with a profile can simply go back on the road and make their money from concerts. The “live” aspect can’t be duplicated, not really. But as one artist said, what about all the others in the industry – the sound engineers, the marketing guys, the producers – where do they earn their wages? Other areas of the arts have a similar advantage. Ballet, dance, theatre, visual arts – even good reproductions are nowhere near the same as the live event. Looking at paintings on my computer doesn’t compare to being at MOMA and seeing them for myself.

But films and TV shows and music and – I hate to say it – books? Easily reproducible with little loss of experience. So what the heck is a writer to do? Here comes that slippery eel again.
There are certain situations in which the words I write are already paid for and I lose copyright. I know these conditions in advance and decide whether or not to agree to them. Journalists and many magazine staff writers know that the work they produce as part of their job belongs to their employer. As a teacher at a university/TAFE, I know that class materials I write for my paid employment technically belong to my employer (which is why I write my own original materials first, which belong to me, and then write extracts and adaptive material for classes – because I know the conditions of employment). But for works I write myself, for my own purposes, the water is getting murkier.

When it comes to my contracted books that are out there in the bookshops and on sale online, if something is pirated, what recourse do I have? One. I can email the site owner/administrator and demand it be taken down. I’ve done this several times (as has my publisher) to no avail. Most of the sites I have found are operating out of South America or China.

As primarily a children’s writer, I do have the “live” option of school visits and library talks that I get paid for, but this is a small part of my income. (Some writers do many school visits and make a good living, by the way.) But mostly I have the works I produce, and I am in a marketplace that affects me in many different ways.

The first way is copyright territories. There has been much said about protecting Australian writers and their copyright. To a certain extent, I agree with this. Except the more we develop a digital environment where the consumer expects to be able to buy any book they want from anywhere in the world, I’m becoming more unsure as to how protecting Australian copyright benefits me. (But I will stay tuned and try to stay informed, all the same. Another eel swimming around me.)

To be completely honest, what I have found (now and in the past) is that Australian publishers demand world rights to my books, and very often cannot sell them. Meaning they publish my book in Australia and NZ, and try to sell it into the US, the UK and various other territories, and more often than not, don’t. It works the other way, too. I sold a novel to a US publisher, kept Aust/NZ rights but then nobody here wanted them because “world rights were no longer available”. The persistent (and probably true) perception that Australian rights provide a poor return on their own does and will continue to hamstring any Australian writer from developing their career beyond our shores. The other perception that e-rights will help to sell more copies of an Australian book is really only proving true for the best-sellers. I look at my royalty statements and e-books payments are minimal.

Too often, arguments about copyright territories are based on writers such as Tim Winton and Graeme Simsion and the like. Those very few who sell into multiple territories and win awards. They are such a small percentage of Australian writers that it makes me want to scream. While we parrot about copyright and what it “provides” for Australian writers, nobody seems to take a good hard look at what problems it raises TODAY. Not last year or last decade. NOW. The publishing industry, copyright issues and rights management is in turmoil, and everyone has their own perspective, and everyone wants to make money, but what happened to the music industry is acting like this tolling death bell and nobody is really talking about the ordinary writer.

He points to the key issue with copyright, which is more than just pirating and territories. It’s that if I create something – a book say – then it belongs to me. Forever. Unless I willingly and with full knowledge of the consequences (and you’d be surprised how many people don’t understand the consequences) sign the copyright over to someone else. Hopefully for a decent or large sum of money.

And the big, big, big point I want to make with this is – if I don’t create it, who will? Intrinsic to my copyright is my originality. My idea, my language, my choice of words, my voice, my hours and hours and hours of hard work to bring it to fruition. If it was that easy to produce a novel, why aren’t computers doing it? Why do best sellers happen? Any publisher will tell you they often have no idea. It is something about what the writer did that strikes an amazing chord with readers. It can’t be duplicated by others, and often it can’t be predicted. But that doesn’t and shouldn’t take away from all the other writers who are busting their guts to produce the absolute best original work they can. We are all very aware of the marketplace and that you only make money from what sells. That is not the issue.

From this comes my other big question. If writers don’t create original works (often for little or no reward), and their copyright and originality and use of words is not rewarded financially at least (because this is a capitalist society we live in), where will books in the future come from? Where will originality come from? Where will brilliant, life-changing books come from? Where will books that stir passions and cause uprisings and show us our own world in all its glory and horror come from?
Copyright is a slippery word these days, like I said. It’s being used to push a lot of different barrows by a lot of different people for a lot of different reasons. But I’d like to pull you right back to the basic question. If I, and writers like me, are not being financially recompensed (through our copyright – the one thing we own) for the work we do, why should we continue to produce books for everyone else’s benefit but our own?