Thursday, 22 September 2016

Copyright Restrictions On Books

Image by stevepb via Pixabay

A librarian approached me the other night. No, it's not the start of a joke. She said she'd seen me on the CLA excluded list. I think she suspected me of being a primadonna. I'm not, generally (except during band practice when I can't find my plectrum - I mean, how is it possible to lose it every ten minutes?). I chose to be on that excluded list because I want to make life easier for people - I allow far more re-use of my work than would be the case if it was included in a CLA licence.

The CLA excluded authors list. I'm in good company.
Note that this list is not comprehensive - any author who hasn't given the CLA/ALCS permission to re-licence their work is excluded, and many of them will never contact the CLA, or even know about it. Despite best efforts, this list can only ever be an incomplete snapshot.

If you are new to the acronym CLA, here's some background: it stands for The Copyright Licensing Agency. The law allows a certain amount of copying and re-use of published works. The CLA sell licences to allow a bit more than that without the threat of the CLA or relevant publisher taking legal action - though that only applies to the subset of authors and publishers they represent.

Here are some of my thoughts about this setup and the CLA, in no particular order. 
  1. As we saw above, in many cases a CLA licence is not required since the law allows a certain amount of use under the "fair dealing" provisions.
  2. A CLA licence is not all-encompassing, and can only cover authors and publishers who opt in and register with their partner organisations the ALCS and/or PLS. Lots of work is excluded but is not on the exclusion list, e.g. works from many non-trade-published authors. So even if you have a CLA licence, copying work that isn't registered (beyond what the law allows) would be illegal, and unfortunately there are new works being published everyday that aren't covered by a CLA licence, and no easy way while stood at a photocopier to check what is covered. I've worked in numerous educational institutions, and been in hundreds of libraries (workplace, school, FE [college], HE [university], business, private, national, public). An academic library might have thousands of staff and students using copiers every day, and if you sit by a photocopier and watch people use it, the process is the same in each case: approach the copier, slap book or journal on, copy, walk off (possibly reshelving the book or journal, possibly leaving it by the copier for a friendly, intelligent, lovely and gorgeous librarian to deal with). I've never observed anyone stop by the copier and try to browse the CLA website on their phone to check if the CLA licence allows them to copy that specific item. It would be horrendously complicated and impractical, which is why I've never seen anyone do that. Yet it is the only way to be sure that what is being copied is something that they are allowed to copy. It's a mess, frankly, and a bit of an elephant in the room, the thing we know but can't acknowledge. And it's one of the reasons why I think it would be better if the law allowed much more re-use than it currently does, so there would be no need for organisations to buy these extra licences (not just the CLA here - see my licensing society post for examples of other annual licences that organisations might be pressured into buying), taking chunks from budgets that could have gone on buying more books.
  3. Unfortunately organisations like the CLA/ALCS campaign for tighter copyright laws and more restrictions, rather than the way I would like things to go. I support many more concessions for re-use in particular circumstances, and removal of restrictions, so the CLA/ALCS/PLS etc have opposing views to those of authors like me. See my licensing society post for more on how this all works, and why I - as an author - don't take part in it. They don't represent me, whatever their websites seem to claim.
  4. I am sure staff at organisations such as the CLA work hard and mean well in acting in the interests of those that have joined them. They're probably really nice people, and I imagine I'd happily have a drink with any of them. But I don't agree with the CLA as an organisation prosecuting institutions which don't have a CLA licence. It all seems so mean-spirited and sneaky. And when applied to education e.g. FE and HE libraries, it seems totally wrong. Let's think about this for a moment. Suppose a university has a canteen that still uses proper cutlery rather than wasteful takeaway packaging. And a student takes a knife and tries to rob a bank with it. Then stabs someone with the knife when their meticulous and supposedly-foolproof plan goes wrong. Would you prosecute the university, because their knife was used in the crime? Or the student? I think it is pretty obvious that it would be ridiculous to prosecute the university. They hadn't known of, condoned, or committed a crime. They're not responsible for someone abusing their trust and using their property for an illegal purpose. But when it comes to copyright, common sense goes out the window. Suppose a university or council or library has a photocopier, for copying things within the limits the law allows (maybe with guidelines displayed on a poster by the machine). And a student or visitor copies beyond what the law allows - maybe a few chapters of a book about their favourite band. Again, the organisation hadn't known of, condoned, or committed a crime. They're not responsible for someone abusing their trust and using their property for an illegal purpose. It is the individual who is at fault. Yet it is the organisation that the CLA would persecute. (I was advised by more than one practitioner that the CLA generally use means other than prosecution to pressurize public and private bodies that don’t take up licences or who don’t comply e.g. encouraging students to "grass", occasional threats, audits etc.)
  5. Note the error in the image that starts this post. That list should just have a single line for my name; Organic Apocalypse (all works) should be in the publisher list below, not the author list. I contacted the CLA again about correcting that.
  6. You often can't use a Creative Commons license if you are a member of a collecting society like the ALCS. See this FAQ. Likewise not all authors can register with the ALCS: I allow people to do more with my books than the CLA/ALCS allow, which excludes me from registering. Money they claimed for copying my work on their more restrictive licences would be illegally claimed, since my licence would have allowed it without charge.
Anyway, back to the librarian. As I said to her at the time, I want to use the copyright page of my books to ALLOW more than the law permits, rather than use the page as most publishers do to try to RESTRICT actions. (Honestly, I'm so sick of books which say "No part of this book whatsoever may be reproduced blah bah blah without permission from the publisher" - liars! The law allows certain uses under the fair dealing provisions, such as quotation for purposes of review. Duh.) As an example, the CLA Licence in the past allowed institutions to copy up to 5% of a book. Apparently, starting this academic year, this will be increased to 10% of a book. For comparison, I allow 50%. I mean, I absolutely love it when my work is re-used for education.

So I'm proud of the copyright pages that will be used in my future books, as reproduced below. Hopefully you'll find it more straightforward and refreshing than most copyright pages.

Organic Apocalypse Copyright Manifesto

Organic Apocalypse believes culture should be shared. We support far more re-use than the UK law and licensing organisations currently allow. We respect our buyers, reviewers, libraries and educators. You don't need to sign anything or pay for a licence to get the extended rights below.
  • You can copy or quote up to 50% of our publications, for any non-commercial purpose as long as the source is acknowledged. So it's okay to do that for purposes such as review, criticism, study, assessment, research, teaching, education, parody, or just to say "Hey people, isn't this book amazing?"
  • You can sell our print books when you've finished with them. (Or pass them on to other people: share the love.) You buy, you own.
  • We don't add DRM to our e-books (though some third-party distributors do - wherever possible we opt out of such restrictions). Feel free to convert between formats (including scanning, e-formats, braille, audio) and store a backup for your own use.
  • Libraries: our print books can be freely loaned to the public, and sold on in booksales at end-of-life. Also, we don't inflate the price for libraries: you pay the same for a copy as anyone else. 
This is based on the situation in the UK: if your local law allows more than we state above, that's great! Local law then takes precedence over this.

Note to librarians and educators: all Organic Apocalypse titles are excluded from CLA (Copyright Licensing Agency) licences. We believe the law and CLA licences are too restrictive, and should allow far more re-use and sharing. If we joined the CLA we would have to restrict what we allow people to do with our work, and we won't compromise on that. So until the law becomes fairer in terms of allowing more re-use and sharing of copyrighted work, this manifesto is the best we can do. Times are hard, libraries and schools are closing: we do our bit by being as flexible and fair as possible. Peace and love and keep up the good work.

Updates Since I Drafted This Post - 2016-09-22 17:29

When I first drafted this post and ran it past a number of professionals in this area I had just thought the CLA were a bit clunky. But at the moment I'm rather furious.

This afternoon the CLA responded to my email about point 5 above, concerning them having incorrect information on their website.

Firstly, they said they don't update the publisher list any more (even though it is still openly available with no caveats). It is "an old list of Excluded Works that is no longer maintained/updated".

The confusing CLA site. Apparently visitors are meant to know that the author exclusion section is still used but the publisher exclusion section isn't. Image from 2016-09-22.

Instead people have to search yet another system of theirs (one which you can't browse - so you can't see a list of all excluded items, only search for ones you already know of). This makes me think of endless rabbit holes.

So far, so bad.

Then the CLA refused to add Organic Apocalypse to that database of excluded publishers, unless I jumped through unnecessary hoops by creating an account on a third party site that I have no interest in, and apparently the CLA want me to inform this extra site about every single book that is excluded, rather than it being a blanket exclusion. Apparently only then will the CLA fulfil their legal obligation to list excluded works. Which, basically, stinks.

And it leads to the situation where the CLA know certain works are excluded (e.g. all Organic Apocalypse-published titles, now and into the future), but the CLA refuse to communicate that to the people they sell their licences to. Also they sell licences by making it seem as all-encompassing as possible: so they are profiting from the implication that the licence covers works that they are fully aware it does not cover.

It is the CLA that sells the licence; the CLA have been informed that all works by a publisher are to be excluded. If they refuse to acknowledge that, and try to create extra barriers to acting on it, then they are profiting by selling rights they are not permitted to sell. So a warning to those who pay the CLA for a licence: by omitting excluded publishers it means the CLA licence's excluded works are inaccurate, and you have no way of knowing for sure what is included or excluded in a CLA licence.

The other thing that stinks is the lack of parity between how you opt in, or opt out.

Suppose you don't want to licence the CLA to re-sell some of your rights? You should not have to do anything, since by default they have no permission. But they require you to tell them specifically; and even that is not enough in some cases like this, where they try to send you off to register with another organisation.

Whereas suppose you do want them to re-sell some of your rights? No need to tell them about each book. Or do anything. Or even know about it, or agree with it, or be happy about it. Unless they specifically hear from you, they continue regardless.

The systems to "opt out" are made much more complicated and onerous, even though the CLA have no right to include your work automatically. Basic truth: you don't have to "opt out" of something you never agreed to "opt in" to in the first place. But that is exactly the position the CLA etc put you in.

I will update this. Hopefully it is a misunderstanding on their part and can be quickly rectified, but at the moment ... (Sigh). I hope I don't have to look into my options for dealing with the barriers the CLA are putting in place, but they are preventing me from exerting my rights. This experience just reinforces my decision to keep barge-pole length from their licences (and connected organisations such as the ALCS and PLS). Let's hope they correct this and respect the rights of authors and small publishers.

Updates Since I Drafted This Post - 2016-09-23 11:38

Resolved now, but I am tired (went bed at 6am, we authors are nuts) so I may add further details on another day. Thanks to the CLA for eventually acting on my request. I still think the CLA should make it clear from their first page that the CLA licence only covers authors and publishers that opt in, and they should link to both a full browse list and a searchable version of that opt in list from that homepage statement; and also link to the opt out list and explain that it is a guide, but only the opt in list is comprehensive. Still, enough progress for me to put my sabre away.



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