Book Division Report to the 2018 DA

Following are some highlights of actions taken by the NWU Book Division since the 2015 NWU Delegate Assembly. These include work on issues specific to writers of books, including to ebooks. These also include policy advocacy related to legislation, regulations, and litigation on copyright and other issues that affect writers of work in other formats as well as authors of books, but where the Book Division has taken a leading role in NWU work.

Book Division co-chairs and other member volunteers also engaged in ongoing activities, including moderating the NWU-Book listserv; alerting Book Division members and other NWU members about issues affecting their interests through NWU-Book and the national NWUsletter; monitoring Congress, the Copyright Office, foreign governments, and international entities for developments affecting book authors’ interests; participating in monthly advocacy conference calls with a coalition of other organizations of writers; and working in cooperation with the Grievance and Contract Division in response to grievances and advice requests related to books and e-books.

The co-chairs have made presentations to NWU chapters and other organizations on book issues: Davis gave a workshop on “Protecting Your Copyright” on April 22, 2017, for the New York Chapter and Hasbrouck gave one on “Making a Living as a Writer in the Digital Age” co-sponsored by the Mechanics Institute Library (San Francisco) and the Northern California Chapter on May 19, 2017.

Davis gave a condensed version of her talk at the Bronx Book Fair on May 5, 2018. Hasbrouck has also given presentations and participated in discussions on copyright, writers rights, and the business models and working conditions of book authors and other writers in the U.S. as part of representing the NWU in international coalitions and to other international organizations. These are discussed in a separate report on the NWU’s international activities.

All of our advocacy work has been carried out within the framework of the NWU priorities for copyright reform, which were adopted by the 2013 Delegate Assembly:
https://nwu.org/book-division/position-papers-and-resources/priorities-for-copyright-reform/

Many of the activities listed below have been reported and explained to NWU members, allies, and the general public through articles in the NWUsletter and on our blog at NWU.org. Our public statements, position papers, official submissions to government agencies, and related resources are posted in the Book Division section of NWU.org and linked from this index page: https://nwu.org/book-division/position-papers-and-resources/

January 28, 2016: “E-Books and E-Rights: What Authors Need to Know,” premier of first webinar created by the joint committee of the Book Division (Davis and Hasbrouck) and the Grievance and Contract Division (Amy Rose, National Grievance Officer; Paul MacArthur, Assistant National Contract Advisor; and Barbara Mende, GCD Coordinator; Davis is also National Contract Advisor). There have been three subsequent presentations of the webinar, which members found to be very informative and useful. Presentations were given by Davis, Mende and Rose, who wrote the webinar, in conjunction with committee phone calls, over 2014-15.

July 28, 2016: Representatives from NWU, the American Society of Journalists and Authors (ASJA) and the Science Fiction Fantasy Writers of America (SFWA) met with a six-person delegation from the U.S. Copyright Office in their offices at their invitation. Our delegation consisted of Salley Shannon, past president of ASJA; Michael Capobianco, past president of SFWA; and Davis (in person) and Hasbrouck (on the phone).

We discussed proposed changes to Section 108 of the U.S. Copyright Act, which creates “exceptions” to copyright for libraries and archives. A Copyright Office study group, created in 2005, came up with suggested changes that would expand these exceptions in ways that would significantly undercut writers’ incomes. However, there were no working writers in the study group, and these proposals are being considered without prior study by and awareness or consideration of their impact on writers’ revenues, especially in light of emerging digital and self-publication business models.

We held two conference calls to prepare for the meeting and each of us agreed to take a topic:
• How writers and other rights-holding creators are using their old work in new digital ways in order to monetize it;
• Publishers don’t know how we’re making money on our personal backlists because they’re focusing on their front lists of new best sellers;
• Precise definitions are needed of who can do research and use archival resources, especially if searches will be run by outside (for-profit) contractors; and
• Creators needing to “opt out” of having their online work freely redistributed by online “archives” will not work. It would undercut sales by the author if time-limited materials have been posted on websites that no longer exist and those materials continue to be available online. The system must be set up on an “opt-in” basis so the creator can give permission before each work is posted online.

The Copyright Office staff asked a lot of questions and took copious notes. Even though they had met with other creators’ groups, their reaction to our presentation seemed as though they had not previously heard much of what we had to say. We stressed that freelance writers have to be creative in finding new ways to earn money from their work. As the meeting ended, we thanked them for being open to what we had to say, and they thanked us for giving them a new perspective to think about. However, we have no idea whether they will take our message to heart and try to incorporate freelance writers’ efforts to earn a decent living into their suggested changes to the copyright law.

August 18, 2016: Submission to the Copyright Office from the NWU: Mandatory Deposit of Electronic Books and Sound Recordings Available Only Online. Conclusion: Archivists’ desire to “acquire” the Internet – whether through “crawling” and “capture” or through mandatory deposit of all its contents – is understandable but misguided. Trying to archive the contents of the World Wide Web is as futile as trying to archive the weather. At most, one can archive snapshots of observations made by specific observers at specific places and times. But the Internet is both diverse and constantly changing. Different text, images, etc., can be served to a visitor to a particular URL depending on when they make their request, where they are located (as inferred from their IP address), the parameters sent by their browser (such as their preferred language, device type, and screen resolution), who they are, and their preferences (as determined from cookies, user logins, etc.). Do two people ever see exactly the same Facebook home page? Unlikely.

The Web and other electronic content distribution channels have enabled new media and new distribution modes that are, characteristically, personalized and dynamic, making them ill-suited to archiving and making demands for their “deposit” especially burdensome. That also enabled new business models and revenue streams associated with those new media, the potential for which could be significantly undermined by free access to deposited copies.

Trying to constrain Internet media to those formats that are static and subject to archiving would straight jacket both technology and business models, harming both writers and readers. Archivists need to find ways to accommodate their methods and expectations to new media, not try to confine new media within old-media archival formats. The National Writers Union remains eager to work with librarians, especially the Library of Congress, to develop best practices for archiving that will nurture rather than undermine writers’ livelihoods.

October 17, 2016: Submission to the Copyright Office from the NWU: Removal of Personally Identifiable Information from Registration Records. Conclusion: Writers’ privacy matters. New technologies have created new opportunities for writers to distribute, exploit, and generate revenue from their works anonymously or without divulging their personal information, and without the need for a publisher or agent as an anonymizing or privacy preserving proxy. Those privacy gains should not be undermined by Copyright Office regulations or laws, or by copyright registration procedures.

January 30, 2017: Comments and Petition for Rulemaking from the NWU and allied writers’ organizations: Group Registration of Multiple Articles (with a single form and for a single fee). Abridged Conclusion: The Copyright Office doesn’t need to re-invent the World Wide Web, and shouldn’t try. Neither registration nor deposit of copies with the Copyright Office is likely to improve, in any material respect, the ease of requesting and obtaining copies of written works available online. The National Writers Union and look forward to participating in a rulemaking to make it feasible, for the first time in more than twenty years of Internet content distribution, Web publishing, blogging, and
social media, to obtain meaningful protection against copyright infringement for works in these formats that are now well-established but still prohibitively expensive and time-consuming to register and thus effectively denied copyright protection.

January 31, 2017: Proposal from the NWU on Copyright Office Reform; Register of Copyright. Abridged Conclusion: The key question in assessing copyright law and regulations, the structure of the Copyright Office, and the selection of the Register of Copyright should be whether those policy and personnel decisions serve the interests of the public and of creators. Writers, readers, and the relationship between us should be at the center of that inquiry. With that in mind, the key criteria for selecting the Register of Copyright should be her ability and commitment to serve the
interests of the reading public and the creative community, and her independence from other influences outside the Constitutional purposes of copyright. Similarly, whether the Copyright Office remains within the Library of Congress (with recognition of its obligations as, in part, a regulatory, rule making, and administrative agency), or whether it is made an independent agency, its structure and procedures need to ensure that its policies and practices are based on understanding of, and engagement with, readers and creators and the organizations that represent them.

February 2017: Preliminary survey of members via NWU-Book listserv about two large-scale digital infringements, which could lead to group grievances with the Grievance and Contract Division. The survey confirmed that many NWU members are affected by each of these infringements. Since this survey, we have been in discussions with other writers’ organizations and potential allies regarding strategies, tactics, and resources to mount effective challenges to these infringements.

March 2017: Book Division co-chairs worked with President Larry Goldbetter on responses to a query from the Library of Congress regarding ongoing “Web archiving” and redistribution of NWU and other Web content by the Library without a license or permission. We requested the Library not archive any NWU and other Web content posted on nwu.org, and the Library agreed.

March 30, 2017: Comments from the NWU to the Copyright Office on Moral Rights Writers’ “moral rights” to be identified as the author of their works and to protection of the integrity of their works are recognized by  international copyright treaties ratified by the U.S. But the U.S. has never enacted the necessary laws to recognize or protect these rights. Conclusions and Recommendations: The moral rights of authors are, as the term itself suggests,
a matter of morality and fairness. Having recognized the ethical imperative of respect for the human rights of writers, and having committed itself by treaty to enact laws recognizing these rights and providing adequate and effective remedies for violations of these rights – without formalities, independently of writers’ economic rights, and even after any transfer or assignment of economic rights or when a work is used as “fair use” — the U.S. should fulfill its commitment to writers and to the other parties to these treaties by enacting explicit federal statutes to recognize and protect these rights. 

May 15, 2017: Further Comments from NWU on Moral Rights Abridged Conclusion: We reiterate our appeal to the Copyright Office and Congress to recognize the public interest and treaty-law imperative for new laws and regulations to protect the moral rights of authors and to provide adequate and effective means for us to enforce our rights as writers.

November 27, 2017: After reviewing objections raised by the NWU and others, the Copyright Office ends its study of “Extended Collective Licensing” (ECL) for written works and decides not to recommend legislation for ECL, due to lack of support by writers and other “stakeholders.” 

February 2, 2018: Comments to the UK Intellectual Property Office in response to a proposal to authorize “Extended Collective Licensing” (ECL) for written works: Summary: The proposed license would have allowed many works by U.S. writers, published primarily or exclusively in the U.S., to be scanned and distributed from the UK in digital form without the knowledge or consent of these writers or any effective way for them to opt out. Following our submission of these objections, the application was withdrawn, and we have entered into continuing high-level discussions with the applicant (the UK Copyright Licensing Agency) about how to revise the proposal and CLA procedures to protect the interests of U.S. writers.

May 7, 2018: Separate meetings by Book Division Co-Chair Hasbrouck with multiple members of each of the three components of the U.S. government’s interagency task force on international copyright policy: the international division of the Copyright Office, the copyright division of the Patent and Trademark Office, and the copyright division of the Department of Commerce. This was the first time, so far as any of the participants were aware, that any of these officials had even been approached by, much less met with, any representatives of freelance writers. We were able to explain our concerns and raise consciousness about the issues we face.

May 8, 2018: Meeting of the NWU and a coalition of national writers’ organizations with the Copyright Office regarding the NWU-initiated coalition petition for rulemaking on group registration. Participants in the meeting included Book Division Co-Chair Hasbrouck; leaders of the Authors Guild, SFWA, and ASJA; and senior Copyright Office staff, including the General Counsel and the head of the registration division. Our petition has also been endorsed by several other organizations of writers, and this was the most diverse group of representatives of writers to make a joint petition to the Copyright Office in many years. It was a breakthrough meeting for the NWU in terms of both initiation and leadership of a coalition advocacy campaign, and of engagement with Copyright Office staff, many of whom were unfamiliar with the issues that we and other writers have long been trying to raise.

July 16, 2018: Follow-up comments to the Copyright Office on proposed rules for mandatory deposit of e-books:
Summary: In response to our August 18, 2016, objections to its original proposal, which could have imposed burdensome requirements on many writers of digital content, the Copyright Office revised its proposed rules to exempt Web site, blogs, and e-mail from mandatory deposit. But its revised rules would have applied to digital “volumes” and to works available online but not as part of Web sites or email messages. We questioned what these terms mean and whether there is any purpose to this rule, especially in light of the strangely defined and seemingly narrow category of works to which it would apply. We urged the Copyright Office to withdraw its proposal as vague and pointless. 

Appeal for Collaboration and Successors: Davis has been Book Division co-chair since 2005 and Hasbrouck since 2009. While we have periodically requested members join us in advocacy work — and some have volunteered — we have not yet had any members express interest in taking over leadership and coordination of this work, including representing the NWU in Washington and in national and international advocacy coalitions. We once again make an appeal for collaboration and for members to help take responsibility for leading the Book Division.

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