Re: International E-book Sales Restrictions Explained

Chris,

I have to start by questioning your understanding of copyright. It is a 
system that was nascent in the start of printing in Europe. The form of 
copyright as we understand it today was set in the Queen Anne Act at the 
beginning of the eighteenth century. The sophistication of that was the 
Berne Convention towards the end of the nineteenth century, at which 
time it was joined with the Paris Convention to initiate Intellectual 
Property as an international guide. The term, came from the 1867 use of 
'Intellectual Property' in Berlin legislation. The whole basis of all IP 
is the right of the creator and owner to determine use of their 
creations for whatever period is fixed by national laws; at present 
those terms range from life plus 50 years to life plus 100 years. The 
current work on international agreement is conducted by WIPO under the 
umbrella of the United Nations. And the last I heard, Professor Lessig, 
founder of Creative Commons, is a respected member of that 
decisionmaking process.

We can argue about how ideal the present set up is. The problem that 
presents with many ideas, like a simple rule for regional publication, 
is that clumsy changes to simplify are likely to destroy the whole 
publishing industry, in all its aspects, both traditional and modern. 
Arguments for change have to be darn good, and be subjected to intense 
scrutiny internationally.

On 14/06/2012 19:39, Chris Smith wrote:
> joseph harris wrote:
>    
>> Copyright gives a right to the rights owner - which that owner may
>> licence to a publisher or other person or business - which legally
>> entitles the owner to determine all the rights to make copies
>>      
> ...
>    
>> And there is a false analogy with brick and mortar bookshops. Bookshops
>> *store* print books, they do not copy them; it is the nature of the
>> digital file that ebookstores do make copies to meet a sale.
>>      
> ...
>    
>> but these casual appeals to... well to I'm not sure
>> what, except maybe 'I want it, and I want it now'.
>>      
> In this particular case, there is a notable second sentence, though.
>
> "I want it, and I want it now. My friend in New York bought the print
> book, my friend in Chicago bought the e-book, and my friend in Salisbury
> bought the print book -- so why can't I buy the ebook in Basingstoke?"
>
> You clearly decided to sell it -- but you used your authorial discretion
> to *deny* some people the chance to buy the same item that other people
> are permitted to purchase. (You could have insisted on a single world-wide
> launch day for all print and ebook versions to resolve this problem.)
>    

'Deny' is an emotion charged word, that demeans your argument. The 
question is not *what* the result is, but why that particular choice has 
been made. Every book, *every book*, is a separate product. This means 
that the decisions about marketing, about likely sales, about the 
purpose of the book, about the form(s) in which to produce it, are a 
response to the unique aspects of that book. This is true of Simon and 
Schuster, this is true of the new PoD publisher of his one volume, of 
the man who takes the unique opportunity to use any of the Kindle 
variants without having to spend time or cost on websites and other 
matters, the medium publisher, the charity.

It is also quite critical to understand that each nation, while 
observing the spirit of the Berne Convention [since we are talking about 
copyright] passes its own laws. There are, therefore quite important 
legal considerations for some books. When it comes to print books, which 
Chris Meadows used as comparison, His claim and implication were quite 
wrong. Geographical limitations do exist on sales of print books, at the 
choice of the rights holder. And you and he miss an important point 
here; no publisher, or self-published author, will willingly impose any 
limitation that is not necessary. They want the biggest sales possible. 
Any restriction is likely to be for very good reason.

> However, the overall discussion suggests an alternative plan for ebooks,
> which I don't think has been tried yet. Essentially have the publisher do
> the copying and produce, say, 15,000 files - which we will mark with
> serial numbers - and then from that point, every copy will move
> individually. The final sale will not involve another copying step. The
> ebook store will only store the ebooks. If they have 40 for sale, they
> will have 40 individual items for sale, and when those are gone, there are
> no more.
>    

That is a very interesting idea, and quite logical; though I don't know 
quite how practical as a general rule. But I can tell you I do know of 
publishers who do mark every copy of their publications with unique 
buyer identifiers. It is an idea well worth some thought, Chris.

> For those who think I may have gone off the deep end here, I suggest you
> go read http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php -- "What
> Colour Are Your Bits?", which discusses - roughly - how when differing
> processes produce the same result, they may still be different results
> that you can't tell apart. Or, perhaps more on topic, review the Supreme
> Court of Canada summary for "Théberge v. Galerie d'Art du Petit Champlain
> inc" at http://scc.lexum.org/en/2002/2002scc34/2002scc34.html and at
> http://en.wikipedia.org/wiki/Théberge_v._Galerie_d'Art_du_Petit_Champlain_Inc.
>
> The court case is expressly important, because in that case, the
> production of a copy destroyed the previous copy. In the words of that
> summary there was "no increase in the total number of reproductions" - in
> essence, no copy. The gallery moved the artists work from paper to canvas,
> but because there was no increase in the number of reproductions, the
> Supreme Court found that there was no copyright infringement.
>
> So - with appropriate affadavits and notarization - I will build a "file
> transfer process or machine" that guarantees that there will be no
> increase in the total number of reproductions beyond that produced by the
> publisher. Now the publisher can do the copying, and the ebook store
> really can store files and transfer them first from the publisher and then
> to the final purchaser.
>
> I'm also quite sure that should this be attempted, it will end up in court
> at some point. But if the process has the necessary guarantees, it might
> very well be determined that the individually sold ebooks will now be
> sufficiently like paper books that we can treat them that way.
>
> : chris smith ::::::::::::::::::::::::::::::::::::::::::::::::::
> : nihil tam munitum quod non expugnari pecunia possit - cicero :
>    

If I read you aright this decision is a nonsense and destructive of 
copyright. The idea of transferability would be valid *only if* the two 
formats are identical. They are not. And such a decision interferes with 
two separate licences that - under Berne, WIPO and trade agreements - 
are entirely in the gift of the copyright owner.  The two forms can be 
priced differently, they can be marketed differently and at different 
times, and there are a host of other breaches of fundamental copyright. 
It overrides many rights of the copyright owner.

Variations of what you suggest exist in the Expresso machine, and are 
related to both ebook and PoD production. But in all legal existing 
cases of of the use of digital files to produce physical items or other 
digital formats that use is entirely under the control of the rights 
owner, either directly or through licence contract(s).

Joseph Harris


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