h2g2 The Hitchhiker's Guide to the Galaxy: Earth Edition

Hi Fragilis,



I'm not a lawyer and I don't play one on TV. This opinion plus $10 US will likely get you breakfast at most waffle houses in the United States of America. Also this opinion only refers to Title 17, United States Code, aka Copyright. If you live outside the United States of America, or its possessions, commonwealths, or dependencies, your mileage will certainly vary.



In your otherwise excellent article, you say:

"Where contracts are concerned, placing your work on the internet is still 'publishing.' And h2g2's copyright clause (which you agreed to) prevents you from owning any 'exclusive' rights to your work."

Not in the United States of America. The definition of "publication" according to USC Title 17, Chapter 1: Subject Matter and Scope of Copyright § 101. Definitions is:

" . . .'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication."

Posting something to the internet, per se, doesn't qualify as publication under US law. Offering what you post on the internet for sale, or actually selling it DOES constitute publication. Should h2g2 ever sell this stuff, THAT would constitute 'publication'. However, writing this opinion and posting it, although I'm granting h2g2 non-exclusive copyright to my deathless prose, does not in and of itself, constitute publication. And that's because I did not transfer exclusive copyright to h2g2.

I transferred a permanent, royalty free, license to h2g2. Granted h2g2 can publish this opinion, make copies of it, modify it, and sell as many copies of it as it pleases without recompense, I still "own" all copyrights. I could, if I chose, sell this article to someone else if I wish, just not on a non-exclusive basis. I can make as many copies of it as I wish. I can post those copies all over the world. I could do a dramatic reading or other wise give a performance of this article. I can create a phonorecord of this post and distribute that anyway I wish. I can create derivative works based on this opinion and distribute those works anyway I see fit, and h2g2 can't do anything about it. I own those copyrights and will continue to own them even after I post this opinion.

Matter of fact, here's a listing of my copyrights, taken directly from US statute:

"§ 106. Exclusive rights in copyrighted works
Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public
by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, panto-mimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, panto-mimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."

Another by the way, since my opinion is 'unpublished' according to the statutory definition, it's fully protected by US copyright law. If you wish, I dig up that paragraph from the statute and post it as well.

Also, keep in mind certain works simply can not be copyrighted because they're in public domain. According to US law, something that could be copyrighted goes into public domain in one of 3 fashions. (By the way, once a work has gone into public domain, it cannot be copyrighted by anybody ever again. Period.)

1. The material simply cannot be copyrighted in the first place. Individual words, short phrases, single simple declarative sentences, ideas, recipes, lists, forms, as well as anything produced by the US government cannot be copyrighted. Those paragraph I quoted from Title 17, cannot be copyrighted. They're public domain. For written works at least, you need express at least two complete ideas to claim copyright protection under US law.

2. Copyright protection has expired. Copyright is a time limited right. Currently the limit for non published works, such as this post, is the life of the author, that's me, plus 95 years. So assuming I dropped dead immediately after hitting the send key, this little essay of mine will remain protected by copyright until 2096. Under US law, anything published prior to 1925 is in public domain. I could copy Mark Twain's 'Huck Finn' in it's entirety and post it here if I wanted to. Nobody can claim copyright to it. Would it be plagiarism? You betcha. Would it be infringement? No. Would I get banned from h2g2, almost certainly.

3. The author places the work into public domain. One of the inherent rights of copyright is the right of transfer of ownership. The owner of copyright can transfer it to public domain. If that happens, the work can never by copyrighted by anyone, ever again.

hth

Jake,

First, a quick point. You incorrectly listed the length of copyrights in the US. For works produced today, US copyrights last for the author's lifetime plus 70 years (not 95 years as you stated).

The only exceptions are anonymous works (these do not include works posted under a pseudonym) and ones designated as works-for-hire where the copyright holder is understood to be a corporation or similar group entity. For such exceptions, the copyright term for works produced today is 90 years. This is confirmed in the FAQ file for the US Copyright Office: http://www.loc.gov/copyright/faq.html

To move on, let's go back to the disputed sentences in my article.

"Where contracts are concerned, placing your work on the internet is still 'publishing.' And h2g2's copyright clause (which you agreed to) prevents you from owning any 'exclusive' rights to your work."

You used US Copyright law to attempt to prove that internet publishing is not 'publishing' and that you could theoretically sell 'exclusive' rights to your h2g2 work to a print publisher. I do hope I'm fairly summarizing your intent.

However, I never referred to the US government's definition of 'publishing' nor any other nations' in the passage you quote. And I did this for a reason, as definitions do indeed vary from country to country. In fact, the definition you quoted is completely accurant, and can also be referenced in the FAQ for the US Copyright Office.

I specifically referenced contracts, which are subject to industry norms and specific terms -- and which are understood to create law between the parties that agree to them. I did this because it is the contracts themselves, not national law, that presents the problem for authors trying to pass their h2g2 work off as 'unpublished' or their rights to it as 'exclusive.'

In the print publishing industry, the norm worldwide is for contracts to specifically detail that 'publishing' according to the contract includes posting the said material on the internet. For people who sign such contracts or hope to sign such contracts, therefore, the fact that their nation's laws might be more lenient is completely irrelevant. The contract and its special terms are still legally binding.

Theoretically, if you lived in the US and could find a publisher that did not make this definition in its contract, you might have a point, Jake. But practically speaking, you will find it next to impossible to find such a publisher. Publishers very understandably want to make sure that work they charge for isn't also available for free over the internet.

In my college course on New Media Law at the University of Denver, a fellow graduate student who has been employed at several very small book and magazine publishers lectured the class on contractual law for publishing companies. She gave us over 10 printed contracts from different companies as examples.

Despite the fact that many of these companies are considered to be bottom tier by their industry peers, they all defined 'publishing' to include posting material on the internet. Since a person attempting to sell their h2g2 work will be expected to sign a contract like this, it really doesn't matter whether US copyright law is more lenient or not. Any court of law will still expect the author to respect the terms of the contract they've signed. So no *practical* loophole exists.