Copyright and the Internet
The New Challenges Faced by Authors and Publishers
However, ever since digital readers, so-called e-book readers, have become reasonably affordable and, consequently, suitable for a mass market, the demand for literature in digital format has been growing steadily. And so it is that the spectre of internet piracy has also begun to haunt the Börsenverein des Deutschen Buchhandels, the association that represents the interests of publishing companies and bookshops in Germany. In its letter to decision-makers in politics, media, and business (Politikbrief) dated November 2009, the association proclaimed that ‘politicians must take action’. ‘The creative industry uses the term “cultural theft” – also more trivially known as “piracy” – to describe the impermissible use of music performances and texts.’ According to estimates, ‘49% of all audio book downloads and 39% of all e-book downloads are illegal’. This means that ‘the livelihood of originators is under threat,’ which is why decisive measures must be taken to press ahead with the ‘protection of the originator’. The intention is, among other things, to push through a model whereby ‘users who act unlawfully are given a warning and informed of the legal situation on their first offence, and are effectively sanctioned in the event of repeat offences’. This model is more commonly known as the ‘three strikes policy’ or the ‘graduated response’. In France, it has been introduced at national level in the form of the ‘Loi Hadopi’. According to this model, users who repeatedly download copyright-protected works from illegal sources have their access to the internet blocked. In France, for example, the sanction lasts for between one and two years.
The ‘Heidelberg Appeal’ launched by Roland Reuß also points to the calamitous status of ‘intellectual property’ and author’s copyright. This letter, intended to be an urgent wake-up call ‘for the freedom of publication and the protection of copyrights’, which has since been signed by 2,674 writers and humanists, was written by Reuß, a philologist specialising in the textual analysis of variant editions, in March 2009 in protest at the unauthorised scanning of books protected by copyright as part of the Google Book Search. Reuß feared a loss of sovereignty much more than any economic losses that might be suffered by the authors. The letter says that ‘in the future, it must remain the decision of writers, artists, scientists, and academics – in short all creative people – whether and where their works should be published’. Reuß considers the fact that Google made parts of these works accessible on the internet in the form of search results generated by its search engine to be an infringement of this right.
Fear of the digital world
Yet the overwhelming response to the Heidelberg Appeal is by no means born of a kind of ‘malaise in the world of culture’ with regard to the digital media revolution. Reuß himself admitted at an event in the Frankfurter Literaturhaus that, upon discovering his works on the internet, he felt ‘as if my children had been kidnapped in a stadium and then subsequently, without any further protection, delivered up to an angry mob’. Gunther Nickel, editor at the Deutscher Literaturfonds, even went so far as to dismiss critics of the appeal as the ‘ladies and gentlemen of the “stingy is sexy” brigade’ in a commentary in the internet magazine Perlentaucher, alluding in the process to the advertising slogan used by a major media and household appliance retailer in Germany. Furthermore, in November 2009, Bernd Neumann, Federal Government Commissioner for Culture and the Media, announced that he would campaign ‘decisively against the “free-for-all” mentality on the internet’ and ‘stand up for a copyright system that protects the creative minds in our country against anything that detracts from intellectual property, whether it be in the form of media giants like Google or Internet pirates!’
Statements such as these meet with a highly favourable response not only from book and press publishers, but also from many writers. With a few exceptions, writers in Germany have never been a wealthy bunch. As far as they were concerned, the blame for this could generally be laid squarely at the door of the Scrooges in the publishing companies, an ungrateful public, or general circumstances. Recently, however, it would seem as if they never had grounds for complaint until the advent of the internet. Traditionally, book publishers have paid authors for the right to publish their works, expenditure that they subsequently recoup by selling the books in question. Now, however, many creative minds fear that because the digital age has dawned on the book sector, this method of recouping costs will no longer work; after all, everyone knows that internet users have – to quote Bernd Neumann again – no ‘respect for the value and the economic significance of intellectual property’. And it’s common knowledge that on the internet people just want to get everything for free. If they don’t get it for nothing, they just go and download an illegal copy. But if authors are no longer paid for their texts, what are they going to live on? It would seem, therefore, that it is pure, unadulterated fear of a dwindling livelihood that has recently prompted not only book publishers but also writers to call for greater copyright protection, which, they say, is what puts them in a position to earn a living in the first place. At least, they are convinced this is the case. And they are not the only ones. This conviction is also voiced in every newspaper article dealing, however superficially, with the issue of copyright and digital media.
The origins of copyright
Interestingly, the popularity of this conviction is not based on an analysis of the actual earnings of contemporary writers. It owes much more to a theme that has been handed down over the years and can be traced back to a speech made to the English Parliament on 5 February 1841 by Thomas Babington Macaulay:
‘The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. [...] It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.’
Patronage or copyright: according to Macaulay, these are the alternatives that safeguard the livelihood of a writer. But does copyright really discharge this function? In December 2007, Martin Kretschmer and Philip Hardwick from the Centre for Intellectual Property Policy & Management at the University of Bournemouth in the UK presented a study that deserves to be considered ground-breaking, were it not for the fact that the media and writers’ representatives, at least in Germany, are all ignoring it. The two academics were commissioned by the British Author’s Licensing and Collecting Society (ALCS) to investigate how much of British and German authors’ income actually comes from copyright sources. Naturally, there are many statistical surveys about the income of freelancers working in the creative sector. In Germany, the figures released by the Artists’ Social Welfare Fund (Künstlersozialkasse) are considered definitive for freelance writers and journalists. The fund estimates that the average income for this occupational group in 2008 was €16,232. However, until now, no one had ever investigated just how much of this income comes from copyright sources.
Writers in poverty despite copyright
According to the study, the typical income from copyright sources earned by professional German authors who spend more than 50% of their time writing was €12,000 in 2004. ‘Typical’ here means that 50% earned more than this figure and 50% earned less. It should not be confused with ‘average’ earnings, which can be much higher because of a few individual authors who earn much more. This income is not only low, it is also unevenly distributed: 41% of it is earned by the top 10% of authors, while 12% of it is earned by the lower 50%. The annual individual income of a professional author was, however, much higher: typically €41,644.
In the light of these findings, it seems unlikely that copyright is really the basis of a professional author’s livelihood. According to Kretschmer’s study, authors in Germany even earn less than their colleagues in Great Britain, although the copyright laws in Germany are generally considered to be more author-friendly. It seems that the income of an author depends to a much greater extent on his/her market success. A successful author not only has a higher income as a result of higher sales, he or she can also negotiate better contracts and secure a greater share of that income. The ‘winner takes it all’ principle applies on the cultural markets. For every Dan Brown there are scores of writers scraping a living out of their profession. This has nothing to do with copyright.
Nevertheless, it is not least the authors themselves who are clinging to the myth of copyright as the livelihood of those working in the creative industries like a drowning man to a piece of driftwood. In view of the precarious circumstances in which most authors find themselves, this supposed fact quickly mutates into a demand that copyright must secure the livelihood of authors and that is all there is to it! Moreover, although it has never actually done so in the past, it suddenly seems as if the internet – with its pirates and illegal file-sharers – is exclusively to blame for the fact that it doesn’t.
The publishers are reinforcing the authors’ view. Naturally, they have a vested interest in making sure that the authors’ discontent regarding their low income is not directed at them, but preferably at Google or the internet in general. Otherwise, the authors might just get the bright idea of asking publishers to give them a bigger slice of the cake in the form of higher royalties or a greater share of the earnings from preprints, paperbacks, and other forms of their work. Moreover, the publishers have an interest in keeping the growing competition from the digital media at bay. When the Börsenverein des Deutschen Buchhandels repeatedly attempts to discredit the internet by calling it a ‘law-free zone’ and accuses Google of ‘cold-blooded expropriation’ of writers because of its book-scanning activities, it is not seeking to safeguard the writers’ interests, but its own. In truth, it is not the copyright that is at risk, but the publishers’ marketing monopoly.
In order to comprehend this, it is important to realise the legal basis on which publishing companies publish writers’ books. To do so, they need the permission of the originator, i.e. the author. The author transfers to the publishing company the right to reproduce and distribute his/her work in printed form. In the past, this gave publishing companies more or less a monopoly because there were hardly any other economic forms of use for literature or, if there were, they did not play a significant role. In addition, the publishing company could easily control the reproduction and distribution of the work because – with the exception of visiting a library to read a book – access to its content was linked to the purchase of the actual piece of work.
Publication without a publishing company
This situation has changed dramatically ever since it has become possible to make texts available in digital form. Since then, another originator right has gained in significance, namely the right to make something publicly available, i.e. the right to publish it online. There is a clear difference between the right to publish something online and the right to print a text and sell it in book form. Accordingly, authors can now publish their works without involving a publishing company at all. No one can prevent them from publishing their text as an e-book. If demand requires it, printed copies can always be produced in cooperation with a print-on-demand provider.
Most authors are, however, reluctant to take this step. Literary figures in particular frequently baulk at the prospect of having to market themselves. The call for greater copyright protection must be seen in this context. It is an expression not least of the need to be protected against the challenges of unfamiliar market structures. The more copyright there is, the smaller the role played by the internet, and the less necessity there is to market oneself well. As irrational as this formula might be, it explains – in all likelihood with the same degree of accuracy – contemporary German authors’ enthusiasm for copyright and aversion to all things digital.
Not least the fact that traditional institutions on the book market are increasingly losing their function as gatekeeper is considered a threat. Because the publication and distribution of a text as a printed book in a traditional bookshop requires considerable capital investment, publishing companies operating on the classical book market have to select the books they want to publish. This means that only a fraction of all authors who would like to be published actually make it to publication. A further selection is made by the critics: only a small number of all published books make it into the newspapers, magazines, and literature programmes on television. Only a very small selection of titles actually end up in the bookshops and even fewer are marketed so intensively that they sell well enough to secure the livelihood of the authors who wrote them.
On the internet, there is no point in narrowing down the supply of books in this way: here, authors can publish an unlimited amount of works without first having to wait for the judgement of editors, critics, or bookshop owners. That said, they also have to fear not being seen in the endless, unrestricted supply available online. So who or what assumes the function of selecting and filtering on the internet?
Search engines and social networks are just two such entities. For the vast majority of users, search engines are the first port of call when it comes to locating all kinds of information, a fact that makes them a classical gatekeeper. But Google’s infamous algorithms pay no attention to the marketing strategies of a publishing company or the recommendations of a particular literary critic. At the same time, they often play a greater role in the user’s decision to buy than the latter do. The more time and money search engine operators invest in personalising their search results, the more certain it is that this trend will intensify. Already, operators are working flat out to present individual users with the most customised hit lists possible, generating results on the basis of an analysis of the user’s surfing behaviour.
On the other hand, recommendations made by friends and acquaintances in social networks like Facebook have a significant influence on purchasing decisions regarding media products such as films, music files, and, of course, books. Not only do users have more faith in their own network of friends and acquaintances than in the advertising campaigns of a publishing company or the recommendations of a literary critic, the fact that the time people now spend in such networks takes from the time that people used to spend on other media – reading the literary reviews in the newspaper, for example – also has a significant role to play.
Freedom or market?
But can search algorithms and social networks replace the selections made by publishing companies and the judgement of critics? Only time will tell. Ultimately, modern-day publishing companies’ sole objective is to meet the expectations of the market as accurately as possible. The space that literary editors in major newspapers afford to or withhold from individual authors is virtually a perfect reflection of the marketing focus of the publishing companies. Major spreads in newspapers like the Frankfurter Allgemeine Zeitung on the books of authors such as Daniel Kehlmann or Jonathan Littell are a good illustration of this point. What’s more, bookshops often don’t buy titles published by smaller publishing companies that cannot afford major advertising campaigns, preferring instead to accept large sums of money to display specific books in their windows.
Consequently, it is not a book’s worth (let alone copyright) that determines whether a book is a success or a failure, but the amount of money a publishing company is willing to spend on advertising. ‘Squeezing a book into the market’, as German-language publishing companies call it, in a targeted way and, if possible, catapulting it onto the bestseller lists costs far more than most authors could afford to invest themselves. The sums in question here can only (if at all) be recouped by mass sales.
So if this necessity disappears because the cost of digital publication is minimal, it need not necessarily be a bad thing for writers. Thanks to new search techniques and networking cultures, it is possible that those who haven’t got a hope of appealing to large sections of the public will have more success finding a readership than if their book were to be published by a small publishing company with a small budget. On the other hand, those who already count among the winners on the mass market have a good chance of being successful as self-marketers, especially as they will then be able to secure themselves a larger slice of the earnings cake, i.e. of the percentage they get per book sold (which is rarely more than 10% from conventional publishing companies).
Already, bestseller authors like Paulo Coelho or Ian McEwan sell many of their e-books directly via the internet book dealers Amazon, leaving the publishing companies completely out of the picture. Others also abstain from co-operating with bookshops. Last October, for example, a collective of science fiction authors in the US joined forces to open and operate their own download shop, Book View Café. Some German non-fiction authors are already experimenting with similar models.So should authors be required to earn their living by marketing their own works on the internet? Admittedly, very few will succeed in doing so. However, strengthening copyright is not going to bring about much improvement for anyone else either.
lives and works as a freelance journalist and literary translator in Cologne and Amsterdam. He is part of the editorial team at iRights.info.
Translated by Aingeal Flanagan
Copyright: Goethe-Institut e. V., Fikrun wa Fann
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