Wednesday, 19 October 2016

Writers shouldn't have to choose between privacy and copyright

Writers shouldn’t have to choose between protecting our privacy and protecting our copyrights. But existing and proposed laws in the US and other countries are forcing us to do so. They should be, and can be, changed to remove this unnecessary and unfair dilemma for working writers.

That’s the message of comments I helped draft, as part of my volunteer work as a member of the National Writers Union (NWU), which were filed this week with the U.S. Copyright Office by the NWU and the American Society of Journalists and Authors (ASJA):

Writers are being forced to choose between revealing their identities and personal information or risking the loss of some of their rights. We should not be forced to choose between protecting our privacy and protecting our copyrights….

We urge Congress and the Copyright Office to address the causes of this dilemma, and repeal the registration requirements for enforcement of copyright and remedies for infringement (17 U.S. Code §411 and § 412). And, in light of the privacy issues highlighted by this NPRM [Notice of Proposed Rulemaking], we encourage the Copyright Office to reconsider and withdraw its proposal for legislation to categorize rights to any work as “orphaned” and fair game for unauthorized and uncompensated copying if an author has not chosen to make public sufficient information that they may be contacted by would-be licensees, or deliberately or inadvertently does not respond to licensing requests, regardless of how actively they are exploiting the rights to their work.

Privacy and copyright are fundamental rights. Writers should not have to choose between them.

I work on privacy issues with the Identity Project and as a consumer advocate for travellers, and I work on copyright issues as a member of the NWU (and, through the NWU, of the International Federation of Journalists and the International Authors Forum).

But despite fundamental similarities and — in at least some legal systems — common conceptual roots of privacy rights and writers’ rights, the relationships between these rights, and their effects on each other, have often been overlooked in policy-making.

British novelist, blogger, and activist for writers’ rights Nick Harkaway remarked on this in his book, The Blind Giant: Being Human in a Digital World:

I don’t think it’s a coincidence that privacy and intellectual property are major battlegrounds in the shaping of our digital environment, but I do find it odd that so many privacy campaigners are also uncomfortable with the idea of IP [Intellectual Property]…. To me, the issues are closely related. Privacy and IP share to my eye a common conceptual basis, and the problems that they both face in the age of digital reproduction are problems in common….

Intellectual property, more than ever, is a line drawn around information, which asserts that despite having been set loose in the world — and having inevitably, been created out of an individual’s relationship with the world — that information retains some connection with its author that allows that person some control over how it is replicated and used.

In other words, the claim that lies beneath the notion of of intellectual property is similar or identical to the one that underpins notions of privacy. It seems to me that the two are inseparable, because they are fundamentally aspects of the same issue.

This commonality is even more evident, as Harkaway notes, if writers’ rights are conceptualized as human rights rather than property rights. In Continental European law, authors’ rights (“droit de l’auteur”) are human rights of the creator, some of which (such as moral rights) are inalienable. Copyright in the USA and UK is a property right that can be freely traded, completely separated from its creator, and held by a non-human corporation. The USA has ratified the Berne Convention copyright treaty, which recognizes writers’ moral rights, but Congress has done nothing to enact those rights into US copyright law for written works.

This isn’t the first time the NWU and allied writers’ organization have addressed the dilemma for writers created by laws that force us to choose between protecting our privacy and our copyrights. Nor is it the first time that we too have noted the anomaly, noted by Harkaway in the passage quoted above, of support for some of these laws and policies from groups and individuals who are normally protective of privacy.

In comments to the U.S. Copyright Office last year, for example, the NWU and the Science Fiction and Fantasy Writers of America (SFWA) had this to say about the threat to anonymous writing posed by laws that already do (in the UK and the European Union) or would (as proposed in the USA) define essentially all anonymously self-published work as “orphaned” from birth, because its creators haven’t chosen to identify themselves publicly:

The possibility of advertising revenue from anonymous self-published websites, and anonymous or pseudonymous online payment platforms for downloads or subscriptions for digital content, has made anonymous commercial self-publication far easier than ever before, and has led to whole new categories and genres of anonymous commercial publishing.

Like “orphan works” schemes, ECL [Extended Collective Licensing] schemes would sweep in most anonymous work, and make it impossible for writers to opt out or claim royalties without outing themselves. Rights to anonymously self-published works would be forfeited and effectively confiscated.

Anonymous writing and publishing should not be limited to those writers who can use a third-party publisher as an anonymizing proxy, or who are willing to give their work away.

We are deeply disappointed that librarians, who on other policy issues have been among the strongest advocates for the rights to anonymity of both writers and readers, are advocating “orphan works” and ECL schemes without recognizing that these default licenses would force writers to choose between anonymity and trying to make a living from their writing.

There are good reasons for anonymous publication in many genres. The possibility of publishing anonymously, and of earning a living by doing so, encourages and enables writers to devote time and resources to creating works that benefit readers and the public at large.

Muckrakers, whistleblowers, leakers, and writers on controversial topics or in stigmatized genres may prefer to keep this work anonymous, even while they try to make a living from it.

Anonymous self-publication allows writers to share personal and insider stories, and give readers the benefit of their insights, without breaching their own or their subjects’ privacy.

A family blogger can discuss family dynamics and events without naming or identifying herself or her family members. A medical professional can, with care, share stories that inform the public about professional practices without naming or identifying herself or her patients. A workplace blogger can educate the public about employment and labor issues, or about what goes on behind the scenes of an industry, without naming or identifying herself, her employer, or her co-workers or customers or other contacts. Readers benefit from availability of these works.

In cases like these, a writer may be making her best efforts to ensure that her identity cannot be found by even the most diligent search, at the same time that she is actively exploiting, and perhaps successfully earning a living from, that anonymous work. Digital distribution and revenue platforms have enabled an explosion of new creation of works that might not have been created but for the possibility of anonymous commercial self-publication. This is a good thing which should be supported, not undermined, by librarians, the Copyright Office, and Congress.

The NWU and ASJA were the only organizations of writers who submitted comments in response to the recent proposal by the U.S. Copyright Office. You can see all of the comments here; and more position papers and policy analysis from the NWU here.

Link | Posted by Edward on Wednesday, 19 October 2016, 06:30 ( 6:30 AM)

I'm particularly struck by Harkaway's comment on the link between intellectual property rights and privacy: "It seems to me that the two are inseparable, because they are fundamentally aspects of the same issue."

Thanks for this thoughtful post, Edward.

Posted by: Salley Shannon, 19 October 2016, 13:39 ( 1:39 PM)
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