The Publishing Pie – An Author’s View

At the Tools of Change for Publishing conference, organised by O’Reilly Media, earlier this year, Margaret Atwood gave a very interesting talk about how the “publishing pie” is divided up, and how that has changed over the years with developments in publishing. You can see it here.

Independent review of the UK’s IP system “to ensure it promotes growth”

An independent review into how the intellectual property system can better drive growth and innovation was launched by Prime Minister David Cameron on 4 November 2010.

Mr Cameron announced the six-month review during a speech at a major event in Shoreditch before an audience of business people.

He spoke about how the Government can help make Britain the most attractive place in the world to start and invest in innovative technology companies.

He revealed the Government had published a Technology Blueprint that spells out how the Government will support high-tech innovation, including reviewing the IP system.

Mr Cameron said: “I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age.”

The six-month review aims to identify barriers to growth within the IP framework, which consists of the rules and regulations covering how IP is created, used and protected in this country.

It will particularly focus on how the IP system can be improved to help the new business models arising from the digital age.

Amongst other things, the review will consider whether there are benefits in US-style ‘fair use’ copyright provisions in terms of encouraging and enabling more creative applications of intellectual property. This review will also set out recommendations to make it cheaper and easier for companies, particularly start-ups, to protect and enforce intellectual property. The review will report in April 2011.

The Technology Blueprint also reveals the Intellectual Property Office will trial a new “peer to patent” project, which will allow people to comment on patent applications and rate contributions to help improve the quality of granted patents. Under the “peer to patent” system, versions of which are being trialled around the world, technology experts can comment on patent applications over the Internet, helping patent offices identify innovations which are genuinely inventive.

The review aims to make it easier for companies, particularly start-ups, to protect and enforce their intellectual property. There have already been recent improvements in that direction as a result of changes to the Patents County Court (“PCC”), which took effect on 1 October 2010. In a nutshell, the procedure has been streamlined, with the intention that most cases will be decided on the basis of the paperwork alone, without a trial. And there is to be a cap on the costs recoverable by the successful party – the overall limit will be £50,000, or £25,000 if the case is concerned only with the amount of damages, rather than liability. Each stage of the process will also have its own individual cap on costs recoverable.

There have been a number of reviews of the UK’s intellectual property laws, including the Gowers Review of Intellectual Property, which reported in December 2006, with subsequent consultation as to the implementation of its recommendations. When the Gowers report was launched, it was announced with the headline “Gowers sets out intellectual property system fit for the digital age”. Now the Prime Minister has announced “we are reviewing our IP laws, to see if we can make them fit for the internet age”. I do wonder whether this is just an exercise in putting off the changes that need to be made to make our intellectual property laws fit for the future. Once the latest review reports in April 2011, there will be yet further rounds of consultation, and of course it is very difficult to have any radical changes to intellectual property laws without getting agreement on an international basis – at least so far as the European Union is concerned. So don’t hold your breath …

 

Google breached Data Protection Act, but will not be fined

The UK Information Commissioner’s Office announced on 3 November 2010 its finding that Google UK had breached the Data Protection Act when the Google Street View (“GSV”) cars collected payload data as part of their wi-fi mapping exercise in the UK.

Christopher Graham, the Information Commissioner, announced that as a result, Google UK will be subject to an audit and must sign an undertaking to ensure data protection breaches do not occur again – otherwise they will face enforcement action.

Originally, it was believed that the data collected by the GSV cars was fragmentary and was unlikely to constitute personal data.

However, on 22 October 2010 a Senior Vice President at Google posted information about the collection of payload data on the Official Google Blog. Referring back to a previous blog post he had made, he said:

“Finally, I would like to take this opportunity to update one point in my May blog post. When I wrote it no one inside Google had analyzed in detail the data we had collected, so we did not know for sure what the disks contained. Since then a number of external regulators have inspected the data as part of their investigations … It’s clear from those inspections that whilst most of the data is fragmentary, in some instances entire emails and URLs were captured, as well as passwords.”

This gave the Information Commissioner clear grounds to assert that the collection of payload data in the UK constituted a “serious breach of the first data protection principle”, which is as follows:

“Personal data shall be processed fairly and lawfully and in particular shall not be processed unless:

• At least one of the conditions in Schedule 2 is met; and
• In the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

Schedule 2 Conditions for processing.

At least one of the following conditions must be met in the case of all processing of personal data (except where a relevant exemption applies):

• The data subject has given his consent to the processing.
• The processing is necessary:

(a)  for the performance of a contract to which the data subject is a party,

(b)  for the taking of steps at the request of the data subject with a view   to entering into a contract

• The processing is necessary to comply with any legal obligations to which the data controller is subject, other than an obligation imposed by contract.
• The processing is necessary in order to protect the vital interests of the data subject.

The Information Commissioner has now instructed Google UK to sign an undertaking in which Google commits to take specific action to ensure that breaches of this kind cannot happen again. An audit of Google UK’s Data Protection practices will also be undertaken, and Google will be required to delete the UK payload data when it no longer has any outstanding legal obligation to retain any of the data.

Peter Fleischer, Google’s global privacy counsel, said it would delete the data as soon as possible. “We are in the process of confirming that there are no outstanding legal obligations upon us to retain the data, and will then ensure that it is quickly and safely deleted.

“We are profoundly sorry for mistakenly collecting payload data in the UK from unencrypted wireless networks,” he added. “Since we announced our mistake in May we have cooperated closely with the ICO and worked to improve our internal controls. As we have said before, we did not want this data, have never used any of it in our products or services, and have sought to delete it as quickly as possible.”

Some will no doubt see this as Google getting off lightly, since no financial penalty will be imposed – the Information Commissioner considers that there is no entitlement to impose a financial penalty in this case, having regard to when the breach of the Data Protection Act took place (if the same thing happened again, a fine would be possible).

 

Ian Fleming estate to publish James Bond e-books

It has been reported that the James Bond 007 novels are about to be published as e-books for the first time – but not by the current publisher (Penguin), but by Ian Fleming Publications Ltd, the part of the Ian Fleming estate that has administered rights to the books since Fleming died in August 1964.

Casino Royale by Ian Fleming

The e-books will be available through Amazon and other e-book retailers from Thursday 4 November 2010.

This illustrates the potential for maximising the return on exploiting digital rights and traditional print rights separately. The Fleming estate will no doubt expect to make more money by selling e-books directly then by licensing e-book rights to the current print version publisher.

Penguin has indicated that it will not renew its current deal with Ian Fleming Publications unless digital rights are included, but it’s difficult to see Ian Fleming Publications going back on their current position.

Naturally, one would expect publishers to want to acquire all rights that they possibly can, particularly as sales of e-books are already increasing rapidly and are expected to exceed those of the corresponding printed versions in the near future. Some literary agents consider there is an advantage in keeping the digital rights and the print rights with the same publisher – that may be true in some instances, but Ian Fleming Publications point out that in the case of the James Bond novels, they are not really dependent on the print  publisher’s marketing machinery to create awareness of the novels in e-book form.

Digital rights to JK Rowling’s Harry Potter books are currently being negotiated. One can hardly begin to guess the value of these rights – it would hardly be surprising if people who have bought the books in print will want to have them as e-books too. For one thing, they will weigh much less!

The publishing rights for books form part of the copyright, which can be divided up in so many different ways. The printed form publication rights alone can be divided into hardback and paperback, and then subdivided further (e.g. large print versions, educational versions, and so on). They can and are also divided up by means of language and territory – so at any one time there may be many different parties exploiting a particular work in different formats, in different languages, in different parts of the world. There is no reason – from a legal point of view – why the digital rights have to go with the printed form rights, although book publishers have been routinely acquiring digital rights for many years, even if it’s only very recently that they have actually been exploiting these rights. It’s often with the older, classic backlist works, where the publisher did not acquire digital rights, that there is an opportunity for digital rights to be exploited by a different publisher from the printed form rights.

It will be interesting to see whether this will set a trend for separate exploitation of digital and printed form rights.

 

Supermodel wins damages for infringement of her image rights

Lara Stone, the Dutch supermodel who is married to Little Britain star David Walliams, has won “significant” damages from French Playboy after the magazine published unauthorised photographs of her, it was reported today.

Ms Stone has said she will give the money to Great Ormond Street Hospital for Children.

The case was heard in a court in Paris under French image rights legislation.

Her lawyers said that Playboy was also ordered to publish a prominent legal statement in the next edition of the magazine confirming the court has found it has infringed Stone’s image rights.

 

JK Rowling fails to stop copyright infringement claim

JK Rowling, author of the phenomenally successful Harry Potter books, and her publisher Bloomsbury Publishing plc, have failed in their attempt to stop a copyright infringement claim going any further on the grounds that it has no chance of succeeding at trial.

In a judgement issued on 14 October 2010, the judge said that “I have reached the conclusion that this claim may succeed but that it is improbable it will do so”. On this basis, he was not able to throw out the claim entirely, as Ms Rowling and her publisher had wanted, and the judge may now require the claimant to provide security for Ms Rowling’s and Bloomsbury’s costs before being allowed to proceed further with the claim.

The claim involves two books: the first is called called Willy the Wizard (“WTW”), and was written in 1987 by the late Mr Adrian Jacobs.

The other book in this case is somewhat better known – it’s Harry Potter and the Goblet of Fire, the fourth book in JK Rowling’s Harry Potter series.

The claim is being brought by the trustee of Mr Jacobs’ estate, Mr Paul Allen, and is essentially that, as a result of copying, the Harry Potter book reproduces a substantial part of WTW. This is not one of those cases where the claimant can show that there are large parts of his or her work that have been reproduced more or less verbatim. Instead, the case is that aspects of the plot, sub-plots, themes and incidents in WTW have been copied. This is like the Da Vinci Code case (where Michael Baigent and Richard Leigh sued Random House, publisher of The Da Vinci Code by Dan Brown), claiming that Dan Brown’s bestselling book had copied essential elements from their own book.

Both this case and the Da Vinci Code case make it clear that “Copyright does not subsist in ideas; it protects the expression of ideas, not the ideas themselves.”.

Mr Allen’s claim is based on the argument that in 1987, Christopher Little, who became Ms Rowling’s literary agent some eight years later, was given copies of WTW and that he gave a copy to Ms Rowling before she wrote Goblet or, indeed, any of the other Harry Potter books.

There was a substantial disagreement as to the facts, which the judge is not required to resolve on this type of an application, since that requires the sort of evidence only available at the full trial. However, the judge did go on to consider the elements of WTW that the claimant said had been copied in the Harry Potter book and the principles that would have to be applied in assessing whether or not a substantial part of WTW is reproduced in the Harry Potter book as a result of copying. The judge concluded that “the similarities upon which Mr Allen relies seem to me to constitute ideas which are relatively simple and abstract and I strongly incline to the view that they are at such a high level of generality that they fall on the ideas rather than the expression side of the line. However, I do not feel able at his stage to say that Mr Allen’s case is so bad that I can properly describe it as fanciful.”.

So this case will continue, assuming that the claimant is able to fulfil any conditions about security for costs that might be imposed by the judge when he has heard further argument from each side. I can’t imagine that JK Rowling and Bloomsbury will settle the case, irrespective of the merits (or otherwise) of this particular claimant’s case (as to which I am not really in a position to pass comment) – to do so might open them up to an avalanche of further claims from others hoping to profit from the success of the Harry Potter books.

“Epic Boobs girl” loses privacy complaint

A complaint that Loaded magazine intruded into a woman’s privacy, in breach of Clause 3 (Privacy) of the Editors’ Code of Practice, by publishing a feature about her, with photographs, has been rejected by the Press Complaints Commission.

The article, headlined “Wanted! The Epic Boobs girl!”, appeared in the February 2010 edition of the magazine.

It featured a number of photographs of the woman – who was said to have the “best breasts on the block” – taken from the internet, and offered readers of the magazine a reward of £500 for assistance in encouraging her to do a photo shoot with it.

The woman said the article was intrusive. The magazine had published her name, and taken the photographs, from her Bebo site, where they were uploaded in December 2006, when she was 15 years old. They were published without permission. She could not remember whether her site had any privacy settings in place and did not know the circumstances in which the photographs were removed.

The magazine said it had not taken the photographs from the woman’s Bebo site – rather, they were widely available on the internet. At the time of her complaint, searches showed 1,760,000 matches which related to her and 203,000 image matches of her as the “Epic Boobs girl”.

The woman’s name had also been widely circulated and achieved over 100,000 Google hits, including over 8,000 photographs.

The Commission rejected the complaint, and said the case raised the important principle of the extent to which newspapers and magazines could make use of information which is already freely available online.

It had previously published decisions on the use of material on social networking sites, which had gone towards establishing a set of principles in this area.

But this complaint was different: the magazine had not taken the material from the complainant’s Bebo site, but had published a piece commenting on something which had widespread circulation online (having been taken from the Bebo page some time ago by others) and was easily accessed by Google searches.

Images of the woman had been freely available for some time, and she had been identified online as the individual in the pictures.

The Commission could understand that the woman objected strongly to the context in which they appeared online: images of her and her friends in a social context had become proclaimed as “pin-up” material, the subject of innuendo and bawdy jokes.

The commission said: “It was, of course, within this context that the magazine article operated. This was an important point: the magazine had not accessed material from a personal site and then been responsible for an especially salacious means of presenting it; instead it had published a piece discussing the fact that this material was already being widely used in this way by others.”

It did not think it was possible for it to censure the magazine for commenting on material which already had a wide circulation, and had already been contextualised in the same way by many others.

The Commission felt that the images were so widely established that it would be untenable for it to rule that it was wrong for the magazine to use them.

But the Commission made it clear that it had some sympathy with the woman.

“The fact that she was 15 years old when the images were originally taken – although she is an adult now – only added to the questionable tastefulness of the article,” it said.

But it could not rule on issues of taste and offence, or of the legality of the material, it said, adding: “The test, therefore, was whether the publication intruded into the complainant’s privacy, and the Code required the Commission to have regard to ‘the extent to which material is already in the public domain’.

“In the Commission’s view, the information, in the same form as published in the magazine, was widely available to such an extent that its republication did not raise a breach of the Code. The complaint was not upheld on that basis.”

The Commission’s adjudication was issued on 11 May 2010.

Authors: has your publisher cancelled your contract?

In my previous post, I talked about how some publishers are reacting to the economic situation by cancelling authors’ contracts in order to reduce costs. I discussed the legal principles that are applied by the English courts in assessing the damages that an author is entitled to in such a situation.

Of course, publishers will do everything they can to minimise the amount they pay to an author in this situation — after all, it’s a cost-cutting exercise.

Advances are normally paid to an author in three equal instalments (one-third on signature of contract, one-third on delivery and acceptance of the manuscript and one-third on publication). Sometimes the advance might be payable in only two instalments — one-half on signature of contract and the other half on publication — for example, if the work was more or less complete and accepted when the contract was signed.

In general, when cancelling an author’s contract, the publisher will say to the author that he or she can keep any advance that has already been paid (usually only the amount paid on signature of the contract, but possibly also the amount paid on delivery and acceptance of the manuscript, depending on when the contract is cancelled), but would not ordinarily offer as well the amount payable on publication. What the publisher and the author may not realise is that the author’s strict legal entitlement might well greatly exceed the full amount of the advance.

The publisher will endeavour to get the author to sign away his or her right to make any claim for anything over and above the advance, in return for getting back the rights to the book. Any authors out there reading this, who have had their contracts terminated by their publisher, should take legal advice before signing any release put forward by their publisher. Likewise, any agent whose author is in this situation should also consider carefully — and take advice, if unsure — what their author’s real entitlement is.

No one likes going to court to enforce their legal rights. In practice, if an author claims to be entitled to more than the publisher has offered on termination of the author’s contract, and is prepared to instruct a lawyer to advance the claim against the publisher, then it’s quite likely that a negotiated settlement will follow, where the publisher pays more than it originally offered and the author settles for less than his or her strict legal entitlement. In that way, both parties avoid the stress, publicity and potentially huge cost of a court case. There are some examples where this type of case has reached the courts — see my previous post. Indeed, the Andrew Malcolm case went all the way to the Court of Appeal, where Malcolm won. But it was a hard-fought battle, and the Court of Appeal hearing wasn’t the end of it, as there then had to be an assessment of the damages to which he was entitled — and that was itself was hard-fought court hearing, with a great deal of prior preparation, too.

There are more civilised ways for an author and publisher to settle a dispute!

If both author and publisher acknowledge that the author is entitled to more than just the contractual advance, but cannot agree on an amount, even after negotiation directly or between lawyers, or between the author’s agent and the publisher, then one alternative way of resolving the matter without going to court is mediation — sometimes known as Alternative Dispute Resolution. This involves appointing an independent individual to assist the parties in finding a way in which the dispute can be resolved to both parties’ satisfaction. It might involve both parties coming together at a neutral venue, camped in separate rooms, with the mediator shuttling between them until an agreement is reached. Once an agreement has been arrived at, it is then recorded in a legally binding document. It seems to me that this process is well-suited to this type of dispute between author and publisher, although in my view it would probably be better if the parties’ respective lawyers could thrash out a deal first, with at least some reference to legal principles.

 

Publisher’s breach of contract to publish a book

It’s a fact that publishers are feeling the squeeze in these difficult and uncertain economic times. It’s also a fact that when this happens, there is pressure on publishers to cut costs. One way of doing that is to cut back on their publishing programs. Not only might this involve contracting, and therefore publishing, fewer books, but also cancelling existing contracts for books. What is the legal situation here?

If a publisher cancels a contract without good cause, the publisher is in breach of contract. In practice, it’s very difficult for an author in that situation to get an order from the court compelling the publisher to honour the contract and publish the book — particularly if the book still requires some editing. The author is therefore left with a claim for damages.

How would the damages be assessed?

There are two main recent authorities for the basis on which damages are awarded for breach of a publisher’s obligation to publish a book: Malcolm v. Chancellor, Masters and Scholars of the University of Oxford [Court of Appeal decision on liability December 1990; damages assessed August 1991]; and Myers v. Macmillan Press Limited [March 1998].

The Malcolm case concerned his book “Making Names”, a philosophical text, which had been accepted for publication by a senior editor, the main evidence of which was a telephone conversation which Andrew Malcolm had fortuitously recorded. Oxford University Press strenuously denied that there was a contract. When the case went to the High Court, the judge, albeit reluctantly, decided that there was no contract, as key terms did not seem to him to have been agreed. The Court of Appeal decided otherwise and found in favour of the author. An inquiry as to damages was ordered both to recompense the (previously unpublished) author, Andrew Malcolm, for loss of the opportunity for him to enhance his reputation by securing the imprimatur of the Oxford University Press on his work and also to compensate him for loss of royalties. Where the time of publication, number of copies and price and form of the book are left to the discretion of the publisher, the damages for failure to publish are based on a reasonable estimate of the amount that the author would have earned if the publisher had complied with his contract to publish. This will require consideration of everything likely to affect the amount of the profit, such as the nature and popularity of the subject matter, the reputation of the author, the cost of producing a book on that subject, the price of such a book, the business capacity of the publishers and the chances of earning profits by sales of the book.

In the Myers case, it was accepted by both parties that if the claimant author succeeded on liability (which he did), he could elect between two alternative bases for assessing damages:

• the loss of profits which, on the court’s assessment, he would have made had the defendant performed its obligations under the publishing agreement; or

• a quantum meruit.

The judge said that the second basis is less satisfactory, as it involves carrying out an exercise which does not reflect what happens in practice, i.e. assessing what would have been a reasonable number of hours for the claimant to have spent in writing the work and what would have been a reasonable hourly rate to pay for that work. In the event, the first basis of assessment would clearly have resulted in a higher award, and so damages for loss of profits were awarded. If the author has incurred specific expenses in connection with the agreement, such as preparing illustrations for the text, these can be claimed as special damages.

Where a publishing agreement requires the defendant to publish the first edition of the claimant’s book, and the agreement also contemplates that further editions will be published, the failure by the defendant to publish the first edition of the book will entitle the claimant to damages both for failure to publish the first edition and also for the loss of the chance to establish the title, by the success of the first edition, which would lead to repeat editions in the future, and hence generate royalties on those further editions. This would, for example, extends to US editions, foreign-language editions and electronic editions.

Bearing all this in mind, a publisher must weigh up carefully the pros and cons of cancelling an author’s contract, since a claim for breach of contract could end up costing the publisher more than it would have cost to publish the book, while leaving the publisher without the revenue from the sale of the book. And that’s without taking into account all of the headaches that litigation can cause: management time used up; adverse publicity — possibly leading to further claims by other authors; documents examined in open court; legal costs and the uncertainty of the outcome; and so on.

Making Names by Andrew Malcolm

As a footnote, Andrew Malcolm ended up self-publishing his book through AKME Publications. His website http://www.btinternet.com/~akme/index.html makes very interesting reading.

Tweeted novel bought by publisher

In an earlier post, I posed the question whether tweets are protected by copyright. I concluded that the vast majority will not be protected by copyright, but I specifically suggested examples that, in my view, would be protected by copyright:

• A poet publishes a longer poem on Twitter, one line at a time — each line being a separate tweet;

• An author publishes a novel on Twitter, one sentence at a time (bearing in mind that many years ago, books were often originally published in serial form, in weekly instalments — including works by Charles Dickens — so publication on Twitter might be a way of taking this to an extreme!).

Well, it looks like it’s happening. GalleyCat reports that an author, Matt Stewart, has published a 480,000 character novel, entitled “The French Revolution” on Twitter, and a publisher — Soft Skull — has bought the book on the strength of that.

I say well done to all concerned.