What Publishers Need to Know About Copyright

International and domestic changes in copyright law are constantly affecting the American publishing industry, which is why Digital Book World hosted a session at this year’s conference with representatives from the U.S., Canada and Germany to see how these changes intersect.

From the U.S., there was Karyn Temple Claggett, associate register of copyrights and director of policy and international affairs, who discussed how Congress has been comprehensively reviewing American copyright laws. From Canada, there was Erin Finlay, general counsel and director of legal and government relations at access copyright, who broke the news that copyright law in Canada has been dismal. Finally, Dr. Jessica Sänger, legal counsel and deputy head of the legal department at Börsenverein des Deutschen Buchhandels, represented Germany.

The discussion was moderated by Roy Kaufman, the managing director of New Ventures at Copyright Clearance Center, who also advises the U.S. government on intellectual property trade policy.

Of the three countries, the most positive news came out of the U.S.

“Congress is trying to be very deliberative about how updating our copyright law to ensure that some issues that may have been raised in Canada or Germany are at least acknowledged and considered before they actually legislate,” said Claggett. “Over the last couple of years in the United States, the House of Representatives’ Judiciary Committee has been doing a very comprehensive review of our copyright laws. They’ve had 20 hearings over the last couple of years.”

“We’ve also decided to take things outside of Congress and really go to individuals who can see what can be done,” she continued. “We don’t know where things are going from there but the good news is there’s a process that’s trying to ensure that a variety of perspectives being considered.”

In Canada, on the other hand, copyright owners haven’t been faring well in major legislative decisions.

“We’ve been busy in Canada for the last few years in copyright,” explained Finlay. “It hasn’t been good news. The summer of 2012 was wild across the border. We had five copyright decisions come down from our Supreme Court in Canada in June 2012. I think in every one copyright owners lost. That was a tough day.”

“A couple of the decisions that came down dealt with [the] Fair Dealing Exception in Canada. One case found that 30-second music previews were fair dealing for the purpose of research,” continued Finlay. “We thought that shopping for MP3s on iTunes would not have qualified for research but the Supreme Court found that it did.”

“Another case that went to the Supreme Court found that, when teachers in the K-12 sector copied short excerpts to complement or supplement a main textbook, that was a fair dealing,” Finlay added. “There is no requirement to be paid for those couple of pages. At the time, it had a small impact. But this has exploded recently.”

As an example, Finlay said that Oxford University Press announced it was going to stop publishing its school division content in Canada.

“They stopped producing Canadian textbooks for Canadian kids, and it’s a huge problem, obviously,” she explained. “In a market like Canada, cultural identity is so critical to all of us. It’s so important to foster that and teach kids how to spell ‘colour’ in the right way, learn the metric system, and Canadian heritage. it’s really concerning.”

Another example Finlay used was the case of Broadview Press, which is an independent Canadian publisher that has been negatively impacted.

“Broadview publishes 40 titles a year across culturessome Native American literature, poetry, an anthology of authors whose work has been published in book form. There’s no one else publishing these titles in Canada or anywhere,” she said. “Broadview says the loss of the royalties that used to be paid for the copy of its content means the difference between profit and loss for Broadview.”

For Germany, an area of concern is the copyright contract law.

“Copyright contract law has been rather strange and not good for publishers in Germany with some warning provisions that’ve had their impact,” said Dr. Sänger. “The most important proposals involve the five-year clause and new rules for royalties. The whole aim of this legislation is to help authors and artists and other creative people across the sectors.”

“The whole aim of this legislation is that, five years after conclusion of a publishing contract, any author can ask for the rights back if there’s a third party who sees this as a successful title,” she said. “They can move in and say ‘I want it’ and they can have it. Of course, this third party has a huge advantage.”

“There are also new rules on royalties and they have to be based on number of uses of each work,” she added. “It’s very difficult to do. That’s fine when you’re publishing a certain book but think of, for instance, a press photo that’s being used by a publisher. They wouldn’t even know how often it will get used.”

Update: This post has been corrected to properly reflect what Erin Finlay said during the DBW Conference and in response to Broadview Press’s comment below.

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One thought on “What Publishers Need to Know About Copyright

  1. Don LePan

    I’m writing to correct a serious error in the piece by Kristine Hoang, “What Publishers Need to Know About Copyright.”

    The background so as Broadview Press is concerned is as follows. Many Canadian universities have interpreted a 2012 Canadian Supreme Court ruling (regarding the use of “short excerpts” in classrooms) to mean that copyrighted works such as poems, short stories, and plays may be used in photocopied or digital coursepacks for students, without any compensation being paid to authors or publishers (provided each work is copied from a collection or anthology in which it comprises no more than 10% of the whole); instructors are thus encouraged to assemble their own entire anthologies for use in their classes—again, with no compensation whatsoever provided to the copyright holders.

    Has that interpretation by many universities been hurting Broadview and other small independent publishers, as well as hurting authors? There’s no question about that. Is the damage caused enough to mean “the difference between profit and loss for Broadview,” as Erin Findlay is quoted as having said? In many years, it could indeed mean exactly that. Although we at Broadview have managed to make at least a tiny profit in each of the years since 2012, in most of those years it’s been in the range of $50,000-$100,000—and we estimate the effect for us will be at least $100,000 annually if this interpretation of the Court’s decision (involving what seems to us to be an egregious distortion by Canadian universities of the meaning of the words “short excerpts”) becomes universal across Canada. Already we estimate we are damaged to the tune of at least $50,000 annually by this interpretation having become as widespread as it has.

    But it must be made clear that Broadview has not been damaged to the extent that we “cannot publish anymore,” as is claimed in this piece—far from it! Thus far we have continued to publish 40-45 titles per year, and we will certainly remain in business for the foreseeable future. The danger is not that we will disappear as a publisher, but that our publishing program will become far smaller, far less interesting, and far less culturally significant. If we do receive reasonable compensation (whether in the form of a per copy fee or an overarching per student fee for all coursepack and related uses), we can continue to justify publishing culturally valuable but commercially iffy collections such as Native Poetry in Canada and Introduction to Indigenous Literary Criticism in Canada—as we would certainly like to do! (We also like to keep prices very reasonable–unlike some other publishers of post-secondary textbooks, sad to say.) But if we receive no compensation whatsoever, we simply can’t continue to publish books of that sort; we cannot work for free. In that case we will simply have to focus more on publishing introductory composition texts and introductory logic texts that are less susceptible to being pillaged for “short excerpts.” Such books are, I think it’s fair to say, on average of less cultural value. But if the only way we can pay the bills is by publishing a steady diet of books of that sort, I’m sure that’s what we’ll do.

    I should also make clear that we are not the sort of press that regards any and every protection of copyright or extension of copyright as being in the public interest. Another vitally important copyright issue on the table now in Canada is the Trans Pacific Partnership; if that agreement is ratified, copyright restrictions in Canada will go from 50 years after the death of the author (already too long, in my opinion) to a full 70 years after the death of the author, thereby preventing for an additional generation the publication of competing editions of literary classics—editions that can often be of immense cultural and pedagogical value.

    Finding an appropriate balance in copyright issues is not easy. But in the one direction it is surely unfair to simply not compensate authors and publishers of copyrighted material that is used to put together what are in effect entire textbooks. And in the other direction it is surely not fair to make it impossible to publish competing editions of century-old works, so that an author’s great grandchildren (or, if copyright is held by an organization, a corporation such as Disney) can still retain an exclusive hold on all royalties.

    Don LePan
    CEO and Company Founder, Broadview Press
    since 1985: an independent, international publisher in the humanities

    Pacific Office:
    203-335 Wesley Street
    Nanaimo, BC
    Canada V9R 2T5

    (250) 824-5015



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