Chapter 4: Who Owns What?

by Richard Seltzer , seltzer@samizdat.com, www.samizdat.com

Copyright ©1997, 1998 Richard Seltzer

This is the fourth chapter of a book entitled The Social Web. Permission is granted to make and distribute complete verbatim electronic copies of this item for non-commercial purposes provided the copyright information and this permission notice are preserved on all copies. All other rights reserved. To correspond with the author, send email to seltzer@samizdat.com Comments welcome.

My Internet: a Personal View of Internet Business Opportunities by Richard Seltzer, on CD, includes four books, 162 articles, and 49 newsletter issues that will inspire you and provide the practical information you need to build your own personal Web site or Internet-based business, helping you to become a player in this new business environment.

Once you have your own Web site, you are a publisher, with all a publisher's concerns and responsibilities regarding intellectual property and rights -- your own and others.

As a rule of thumb, if you created it, you own it; if someone else did, you don't.

A question of copyright

Basically, under today's copyright laws, as soon as you write something, you have the rights to it -- it is "copyright" in your name -- regardless of whether you register that fact with the Copyright Office, and regardless of whether you include a copyright notice on copies of your work. There are exceptions to that rule. For instance, if your employer gives you the specific assignment to write something as part of your work, then what you write is a "work for hire," and the person paying you owns the copyright to what you have written. If you have any doubts about copyright ownership, you should consult with a lawyer. But in most instances, the question of ownership should be clear.

Registration with the Copyright Office can be important to establish the date that you created your work, and can help you win penalties in court from those who have used your material without authorization. Check the Library of Congress Web site for detailed information about copyright and for the appropriate forms http://lcweb.loc.gov/copyright

Remember that copyright applies only to the expression of ideas, not to the ideas themselves. You may have many different ways of expressing the same basic concept. You may, in fact, have your own unique way of expressing a thought that originated with someone else. In the latter case, as a matter of intellectual integrity, you should give credit to the person or people who first stated the concept -- pointing to the published source if there is one -- but you do not need permission to talk or write about that concept in your own way, and your unique expression of it is owned by you (unless you did that work for hire or unless you later sold or gave away the rights).

If someone else created a work, then there are a variety of ways in which you could legitimately include it in your Web pages.

First, and simplest, if the work is already available at another Web site, just provide a hyper-link to that document. In most cases, there is nothing to be gained by duplicating documents at your site.

Second, if someone posts a message at your Web site (in a forum or a chat session or by some other mechanical means), by so doing, that person is saying that it is okay for that material to be available to the public from your site. If you wanted to take these postings and publish them in a different mode -- for instance, include them in a printed book -- then you would need to go back to the authors and ask for their explicit permission to do so. Even though the material is at your site, and even though it makes no mention of copyright, the material in fact belongs to the person who wrote it. (Likewise, when someone sends you a paper letter, you have possession of the paper object and certainly have the right to read it and to show it to others; but the content of that letter belongs to the person who wrote it. You cannot, legitimately, publish as a book a collection of letters sent to you, unless you get the permission of the people. And likewise, others cannot include letters written by you in a book without your permission.)

Yes, you can include legal wording at your site indicating what happens to rights if people post material there. For instance, you might want assurances that what they post is in fact their own work, and you might want them to assign to you the non-exclusive right to reuse this material in other formats. You will see legal notices of that kind at some commercial sites, perhaps set up so that you have to click on a particular link to acknowledge that you agree to the terms before proceeding. If you are interested in operating that way, then you should consult a lawyer. But protection should always be balanced with risk and a request for out-of-the-ordinary permission should be balanced by a need for it. You don't normally build a moat and 20-foot high walls around your house. If you feel you are at risk, take appropriate measures. Yes, someone may well be tempted to type in or scan and post an interesting article or story by someone else, without permission. But a simple request to your visitors to respect the copyrights of others, and simple diligence on your part in taking a look at what has been posted at your own site should suffice for protection. If you see something that shouldn't be there, simply remove it and notify the poster why you did so. It would be an extraordinary occasion when a posting in a chat room or a forum led to you being liable for a copyright infringement because someone else posted something at your site and disguised it such a way that a normal person wouldn't suspect that something wrong had occurred. And in that instance, the poster, rather than you, would, likely, be held to be at fault.

If you have commercial intentions, keep in mind that a compilation of writing (like an anthology) can also be copyrighted. In other words, an editor who puts together a collection of other people's writing (and has the appropriate rights to do so) can claim ownership of the collection -- for the intellectual effort involved in making the selection and/or putting them in a particular order, etc. I've seen some Web sites that in their legalese lay claim to copyright in the compilation of material posted there by visitors. Since the order of postings is likely to be random, based on the workings of the software rather than human judgment, that concept probably needs to be tested in the courts.

Keep in mind that the underlying principles of intellectual property ownership in the real world apply in cyberspace. Only in rare instances will separate laws be necessary to cover special circumstances found on the Internet. But the interpretation of old laws in this new space is not always clear. If you wanted to wait until precedents had been set and many of the legal ambiguities had been resolved, you'd be waiting a long time and would miss some very interesting and important opportunities. Rather, I'd suggest, you should proceed with caution, guided by common sense and respect for the property and sensitivity of others. Keep an eye on the "standard practice" -- what lots of other folks are doing and how. And if you have serious concerns and misgivings, consult a lawyer who is familiar with the unique cyberspace environment.

Third, when your Web pages evoke email responses, and you post those responses at your Web site, in the same basic context as what they were responding to, you are acting in a way similar to a newspaper publishing "letters to the editor." But you should use good judgment to distinguish between personal communications and communications meant for public consumption. And you shouldn't so grossly edit these items as to distort their meaning. And you shouldn't put them into an unnatural context which distorts their meaning. In any case, it is always polite to ask permission before posting. Most people are flattered to have their words made public or appreciate the consideration of the request, and in some cases will spread the word about your site when their own words are to be found there -- helping build traffic to your site.

Fourth, an exception to number one, if people from the other side of the world are having trouble getting to pages at your site, because of slow lines or heavy traffic, you might welcome having someone on another continent provide a copy of your content (a "mirror" of your site) to make access from there easier. (For instance, Rastislav Skultety, a high school student in Slovakia, provides a mirror of my site on his system; and he gets about 700 page views of my content per day. Lovely.net, a company in London, also recently began mirroring my pages, at no cost, to showcase their mirroring capability. Those two sites provide fast access to my content for people in Europe.) Likewise, if there is a distant, slow site that has content that you and your visitors are particularly interested in, you might want to volunteer to mirror all or part of that site at yours -- getting explicit permission from the site owner before proceeding.

Electronic texts and what to do with your own saleable work

Twenty years ago, when the small press movement was gaining momentum, my wife and I started a little company to publish a children's book I had written -- The Lizard of Oz. Offset printing had become so inexpensive that anyone could be a publisher. You no longer needed the blessing of an established publishing house to bring your words to the public. There were book fairs everywhere, and a spirit of camaraderie and sharing prevailed among beginners like us. Everything seemed possible. The world would be transformed.

Gradually, we woke up to the fact that while it was easy and inexpensive to put words onto paper, distribution was slow, expensive, and inefficient. Even with good reviews (the media were actually looking for small press material to review), it was very difficult to get books into stores. And even if you did get them into stores, they didn't stay on the shelves for long. That's the way the book publishing business is set up -- stores have to make room for the latest offerings, and there is only limited space, which is usually reserved for releases from major publishers, with track records and money to spend to promote sales of their titles. And with that system, the price of books is designed to pay for all the copies that will be returned by the stores and remaindered or shredded.

So in most cases, small-press and self-published books were locked out. And instead of manuscripts gathering dust in writers' drawers, boxes of printed books gathered dust in their closets.

A couple years ago, many of us experienced the same kind of excitement once again. With the spread of the Internet, and then the Web on top of that, with the possibility of delivering books in electronic form (either by download or on diskette or CD ROM) the distribution problem seemed to go away. I could email any number of copies of a book to anywhere in the world instantaneously and at no cost. Or I could post the complete text of a book at an ftp server or on the Web and whoever wanted could download it for free. The main intent -- as is the case with most authors -- was not to make money, but rather to reach an audience. What Project Gutenberg was doing for the great classics of literature -- making them available to the world in electronic form -- we could do for our own works, totally by-passing traditional distribution channels.

But, to our surprise, we faced another barrier: the display. Today's computer screens are not very friendly to the eye. Most people aren't particularly inclined to cuddle up in bed with their PC (even it is notebook size) and read. Most people find it uncomfortable to read more than a few pages of text on screen. Longer documents they typically print out and then read. But it's very expensive and time-consuming to print out book-length documents. Printed books are far cheaper and more convenient. So not many people are interested in getting full-length books in electronic form -- even if they are for free -- unless the book is not available in print or unless they have a special purpose, perhaps needing to do computer searches or analyses of the text.

Surprisingly, about the only folks who "read" complete books on-line are the blind, who use text-to-voice converters and hence can hear the text. For them, the availability of classic works of literature for free over the Internet through projects like Gutenberg (as mentioned in Chapter one) has been a tremendous benefit. But the rest of the world will probably have to wait for a major advance in display technology before they, in large numbers, begin to use electronic books as an alternative to paper ones.

What are the consequences of these circumstances for your own writings? If your sole intent is to have an audience, do not hesitate to post your works on the Web. If, however, you want an audience but would also like to someday sell your work to a traditional publisher if you could, then when you post your work make your intent clear, right up front, in a permission notice. Check what others with similar intent say regarding their own books, stories, and articles; and craft a few sentences that clearly state what you want to happen. For my own material, I say that people are welcome to make electronic copies for their own, non-commercial use, but I retain all other rights; and that anyone wishing to print-publish or use this material for commercial purposes must first contact me for permission.

Remember, if you are a professional writer, you need to be clear about what rights you have sold and what rights you retain. These rights should be spelled out in your contracts. If you have sold limited rights (such as first serial rights) and retained the rest, or if the publisher's rights have expired (for instance, because the work has been allowed to go out of print) or if you have explicitly retained "electronic" rights, then you should be free to post your own work at your site. When in doubt, doublecheck with the publisher or a lawyer, or simply ask the publisher for explicit permission to reuse the work in this way.

Because, with few exceptions, only the blind read complete books on-line, posting an entire book is the same as making a very large sample available to the public. As a result, posting entire books which are in print is a good way to promote sales of the print edition. Few book publishers have woken up to this fact yet. But those who have would probably welcome your making your work available at your own site, so long as you included legalistic wording to their liking and let readers know how to purchase the print edition. If you want to do it, ask; and if they say no, push back, and try to educate the publisher as to what is in the best interest of both of you.

What's the "public domain"?

By default you own what you write. You may, however, find that in some circumstances it is in your best interest to relinquish your ownership. Yes, you still want to be acknowledged as the author, but ownership does not affect that. Anyone trying to claim that they are the author of your work -- unless they paid you to write it -- is plagiarism, regardless of whether the work is in the public domain.

For instance, you may have an idea that you feel is important for the well-being of society and the world, and you would like that idea spread far and wide with no restrictions. In that case, you might want to explicitly state in the document that you are placing it in the public domain and that you hope people will spread the word.

Similarly, if you wrote a book and it fell out of print and the rights have reverted to you and you never expect it to be traditionally published again, you may wish to place it in the public domain and have it distributed by projects like Gutenberg in hopes of finding a new audience and providing some benefit to the world.

Ownership of all intellectual property eventually expires. This is true of patents as well as copyright. The intent of the laws governing intellectual property is to provide those responsible for the creation of such property a temporary monopoly, in order to encourage the investment of time, effort, and money involved in its creation. But eventually ownership belongs to the public rather than the individual creator.

Keep in mind that because a work is in the "public domain" does not mean that it belongs to no one. Rather it means it belongs to everyone. It is our cultural heritage, which we should cherish, preserve, and keep free from legal encumbrances, so it can be freely transmitted and copied for the benefit of all. Putting texts in electronic form opens opportunities to spread them very rapidly and cheaply. Classic works of literature and government information that are costly in printed form, can be freely and quickly copied in electronic form.

Unfortunately, law makers sometimes lose sight of this basic principle. Recent changes in copyright law in the US and elsewhere in the world have, incredibly, taken classic works of literature out of the hands of the public and put them back into the hands of traditional publishers. Since 1900, the US moved from a 14 year copyright term renewable for 14, to a term of 28 years, renewable for another 28 years, to a term of 75 years after publication. And efforts to extend the term still further are pending. And meanwhile, many other countries have adopted a term of 50 years after the author's death, with even longer terms pending or in effect in some places. The recent extensions have officially moved many classic works out of the public domain and back into private hands. It's hard to see who gains from this -- certainly not the long-dead author. And these differing and changing laws are not easy to understand or to enforce on the World Wide Web, where the Web site may be in one country, but the visitors are from anywhere; and where works do not exist in the physical form of copies which could be accounted for or burnt or returned.

Suffice it to say that if you would like to scan the text of an old forgotten classic that you love and post it at your Web site, you should doublecheck to make sure the work is in fact in the public domain. I'd suggest sending email to Bookpeople, as mentioned in Chapter 1, at spok+bookpeople-request@cs.cmu.edu. They'd also be likely to be able to tell you if someone else has already done that work, for the benefit of all.

Search engines and plagiarism

On the Internet, it takes only a few seconds to copy an article or story and a few minutes to make an electronic copy of an entire book. And once someone has an electronic copy, it is trivially easy to edit a few lines -- for instance, change the title and the name of the author -- and then re-post the work at a different Web site. And there are tens of millions of Web sites. So if the original work was not well known, how would anyone ever detect such an act of plagiarism?

When AltaVista came on line, one of the first things I searched for was the "lizard of oz." That is the title of a book I wrote and self-published back in 1974 and which I have made available at my Web site (http://www.samizdat.com/liz1.html). I discovered that a play with that title was going to be performed in a town in Pennsylvania in a few months. At first I thought this might be the children's play which I had adapted from my own book. But inquiring further, I discovered that this was a story adapted from the Wizard of Oz by other writers. I also found another, different play with the same title being performed in Tasmania; and half a dozen works of art, all originating in Australia, which is often referred to as "Oz."

Next I picked some of my favorite phrases and sentences from the middle of the book and searched for those. (AltaVista let's you search for chunks of text -- just put the phrase or series of sentences in parentheses and AltaVista will match only those pages that have exactly those words in exactly that order.) I came up blank. The only hit was my own page.

In other words, with a free search engine, in a matter of seconds, and at no cost, you can search the entire Web not just for titles, but for any chunk of text. The fact that detection is so easy today should make authors feel much more secure and should be a powerful deterrent for any would-be plagiarizer.

Chapter 5

The rest of The Social Web by Richard Seltzer

My Internet: a Personal View of Internet Business Opportunities by Richard Seltzer, on CD, includes four books, 162 articles, and 49 newsletter issues that will inspire you and provide the practical information you need to build your own personal Web site or Internet-based business, helping you to become a player in this new business environment.

Web Business Boot Camp: Hands-on Internet lessons for manager, entrepreneurs, and professionals by Richard Seltzer (Wiley, 2002). No-nonsense guide targets activities that anyone can perform to achieve online business success. Reviews.

Can we help you build an Internet business? Richard Seltzer is an independent Internet writer/speaker/consultant. Click here for details. or send email to seltzer@samizdat.com

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