Sunday, July 17, 2011

Copyright, Library of Congress and Indie Authors on Smashwords.

Like many of we new, clueless, Independent authors/publishers, so many issues bombarded me when I created and published my first book online on Smashwords, that I didn't have the time, inclination or knowledge to worry about copyright.

I thought - “Hey! I put the little © and my name and date on the front matter, that means I'm the copyright owner – right?”

Weeell, a little yes, and a little no. The addition of the copyright symbol, your name and the date of publication, is the minimum requirement for protecting your copyright, but according to the U.S. Copyright office: “Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.”
In the bad old days of legacy publishing, one piece of advice given to authors of unpublished works was to snail-mail a certified copy of the original manuscript complete with the copyright statement to themselves before trying to shop the work to a publisher. Failing to do so, was like trying to sneak past an armored knight dressed in your underwear.

Sure, as soon as you create something, you own the copyright, but mere possession of a created work is not proof that you are the copyright owner. In the days of legacy publishing, someone could remove the copyright notice, wad it up, toss it in the circular file and claim ownership. If you had no evidence, how could you prove you created the work first?

Nearly all legacy publishers abide by a code of ethics and are unlikely to violate a copyright, but the world is full of scam artists eager to make a dishonest buck. A creative works needs copyright protection.

In the days of legacy publishing the publisher bore the expense of both registering the copyright and depositing the work with the Library of Congress. Indie authors are on their own in this onerous task.

Wait! Oops! – Did I just say, “Library of Congress?” What's that got to do with registering a copyright?
Weell, while researching the material in order to write this blog, I came across this gem:
“Although a copyright registration is not required, the Copyright Act establishes a mandatory deposit requirement for works published in the United States ... In general, the owner of copyright or the owner of the exclusive right of publication in the work has a legal obligation to deposit in the Copyright Office, within three months of publication in the United States, two copies ... for the use of the Library of Congress. Failure to make the deposit can result in fines and other penalties but does not affect copyright protection. If a registration for a claim to copyright in a published work is filed online and the deposit is submitted online, the actual physical deposit must still be submitted to satisfy
mandatory deposit requirements. ...Certain categories of works are exempt entirely from the mandatory deposit requirements, and the obligation is reduced for certain other categories...”

If you publish on Smashwords, even if you've taken the the offer for a free ISBN, Smashwords is your distributor, and you are the publisher. You've published your own works. (Sinking feeling, depression settling in, one more item to distract me from writing. When will it ever end? – damn!)

Now, before you go running around the room screaming and losing hands full of hair; expecting the Feds to appear on your doorstep with handcuffs in hand, there's more. It seems that the good-ol' Gov has finally entered the twenty-first century. The requirements are different for online works that are strictly online. Here's the quote on that issue:
“Effective February 24, 2010, the Copyright Office adopted an interim regulation governing mandatory deposit of electronic works published in the United States and available only online. The regulation establishes that online-only works are exempt from mandatory deposit until the Copyright
Office issues a demand for deposit of copies or phonorecords of such works. Categories of online-only works subject to demand will first be identified in the regulations; electronic serials is the first category for which demands will be issued. Demands may be made only for works published on or after
February 24, 2010.”

“Whew, dodged the bullet, I published at the end of 2010.” But – hold it – you're not out of the woods completely. If you've also made the work available in hard-copy (paper copy), the requirements change again:
“If a work is published both online and by the distribution of physical copies in any format, the requirement of the deposit regulations for the copies applies, not the options for online works given above. For example, if a work is published in the form of hardbound books and is also transmitted online, the deposit requirement is two copies of the hardbound book.”

So, you're back to square one.

I never once considered all the above when I wrote my books and I'm willing to bet may others are in the same fix. As to my copyright, it's true that publishing my work on Smashwords strengthens my claim to copyright ownership, but does not prevent a costly court battle if someone tries to violate my copyright . I've published my first two works for free, but it would make my blood boil if some dishonest jerk tried to sell it as a copyrighted book.
As to the requirement for deposit at the Library of Congress, I was clueless.

I'm not a lawyer, and I make no claims of advice. I'm just reporting what I found. As for me I'm going to pay the fee and register my copyrights and also register with the LoC. I might even adopt the old legacy practice of both snail-mailing and emailing my MS to myself.
If you do the same, keep it stored away, unopened. One way to make it easier might be to store all the drafts, notes, old copies and the current copy on a pen drive rather than print it out. Then snail-mail  the drive certified U.S. Mail to yourself. This is really important if you plan to shop the MS out to online publishers. An email can be intercepted. Since the publisher typically wants a bare-bones stripped down submission, the defenseless copy sans copyright notice can be hacked.

To try and understand the issues involved, I refer you to the U.S. Copyright Office site. At a minimum, download Circulars 1, 3, 7b, 7d  and 66. That will give you the basics and a reference to start from.

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