O’Reilly’s Tools of Change site has an interesting essay by former Google Deputy General Counsel Alexander Macgillivray on copyright issues that need to be addressed for e-books and other digital media. The interesting thing is that many of the issues he brings up are not the ones commonly argued between copyrighters and copyfighters.
For instance, he touches on jurisdictional/licensing implications in region. While we already know about the big mess that regional licensing causes in being able to buy e-books from one country while in another, he wonders about issues caused by buying e-books while in one country and then taking them to another.
For example, if Amazon sells you an ebook in the US, can you then read it in France? What if Amazon only has a deal with the US publisher and not the French rightsholder?
Since reading e-books often involves making copies (copying the file from their server to your device; copying files from your computer to your reader), this means that the mere act of reading an e-book in France that you bought in America could technically be a copyright violation.
Of course, much as with breaking DRM in the privacy of your own home, it’s not a copyright violation that many people are likely to find out about. Still, Macgillivray worries it could become an issue at some point.
Macgillivray also touches on the matter of “associated rights” in orphan works—though Macgillivray is vague on just what “associated rights” refer to apart from “content not owned by the author even if it is hard to tell it is not owned by the author.” Some examples would have been nice. At any rate, he notes it isn’t as simple as choosing to republish orphan works or not, as there are some parts of such a book that may need to be cut out before republication.
He also mentions the Twin Books case, which apparently suggests there are some pre-1923 works that are still under copyright (though again, Macgillivray is scant on details, but it has something to do with the original Bambi novel that Disney adapted into an animated movie), Section 108 of the copyright law which has to do with archival, and the matter of rights reversion and contracts for older books in the digital age.
Having just read the Twin Books judgement you linked to, it’s clear that at the moment, it’s possible for non-US books published outside the US before 1923 to still be in copyright in the US. This is because under the 1909 act, US copyright doesn’t commence until the book is published with the appropriate declaration and date, and if renewed, needs to have been renewed 28 years after the US copyright commenced, not 28 years after first non-US publication.
So for instance, a book is published in Germany in 1910 with no copyright notice, but then republished in 1923 with a copyright notice that meets the US 1909 act’s requirements and registered with the US copyright office, and then renewed (with the US copyright office) in 1950 (or is it 1951?), would still be in copyright in the US today.
The most obvious example of “associated rights” that I can think of, is if an illustrated version of a book is published. The illustrations may not have been done by the original author, and even if they are, the rights for them may be separate.
Frode is right about illustrations, although they’re a rather obvious problem, one Google is apparently solving by blocking from display (but not removing from their files) all illustrations.
But there are more complicated issues. One of the many reasons I loathe the Google Book Settlement is that its attempt to sneak around an author’s rights under copyright law and the Berne Convention, is accompanied by a strange (although legally understandable) deference to illustrators, contributors and the like. An author who labored for years over a book has his copyright set aside without his knowledge or consent. An illustrator or contributor who whipped up their contribution in an afternoon is still protected. Weird!
There’s a reason. The settlement, as I and many others interpret it, abuses class action law to strip a book’s author of copyright protection because there’s the legal pretense that what the settlement calls a book’s author and publisher “subclass” is being adequately represented by lawyers and the presence of two plaintiffs representing each. There is however, no subclass for illustrators, photographers, or contributors and thus no pretense that they’re interests are being represented, hence their copyrights remain valid.
A better illustration of troublesome “associative rights” are quotes in the flow of the text that go beyond fair use and for which the book’s original author or publisher may have obtained permission. Sometimes that permission is mentioned on the copyright page. Sometimes it isn’t. The one giving permission usually specifies that sort of thing.
But anyone who attempts to republish the book in its entirety in a new edition (such as Google) runs afoul of copyright law since that copying in excess of fair use still exists and the original permission does not cover Google’s edition.
That’s what has Google’s former lawyer fretting, although to my mind it is an illustration of straining out gnats while swallowing camels. Google takes 400 pages from an author without his permission and then frets over one page buried in that text just because someone else wrote it. That illustrates to near perfection how law can screw up someone’s ethics.
I might add that I know one prominent literary estate for which this is a major issue.