Copyright, Intellectual Property, Publishers and and Writers

Recent debates about these issues on Twitter and Facebook became heated and no wonder. As writers, we feel that our very livelihoods are at stake. But since at least one of these threads degenerated into an unpleasant attack on publishers, who are surely not the villains of the piece, I thought it might be worth revisiting the subject.

One of the problems is always assumed to be that we are faced with a generation of young people who have grown up with the idea that all information 'out there' should be free. They will happily pirate software, download and share tunes. Partly, this is the fault of an older generation who, in far too many cases, condone what is essentially theft. We can all help to remedy this in a small way, by setting a good example for our children and grandchildren and pointing out just how much effort - and expense - goes into creating the finished product. But given the impossibility of instituting mass prosecutions (actually, it's possible, but financially ruinous) I think everyone involved in the so-called Creative Industries needs to be able to debate these issues, and explore ways of dealing with them, to the advantage of all concerned.

Most writers can think of bouquets and the odd brickbat we would like to award to certain publishers (sometimes, come to think of it, the same publisher!) but I also think that when the relationship works well, as it so often does, we value it enormously. As a personal example, I could name Nick Hern, who has been publishing plays for many years and keeping them in print as well. Every year, when a nice little cheque arrives for my royalty share in one of his excellent anthologies of Scottish plays, I find myself giving thanks for his commitment and dedication.

But we also need publishers because they can save us from ourselves. Self publishing is a respectable option for professional writers with a project which may not be commercially lucrative enough for conventional publishing or a non fiction project with a very specialised market. I've self published a poetry pamphlet to my own satisfaction - but most of the poems had been published elsewhere first. And I wouldn't rule it out for other projects. But we have all read - or tried to read - dire examples of self published work, where it is clear that the writer has a fine conceit of his own abilities coupled with no editorial sense whatsoever. Writing is a craft and too many beginning writers seem to have little idea of the hard graft, the many revisions and drafts - as well as the vast amount of work involved in designing, producing and distributing that small paper and cardboard entity known as a book. Like all jobs which we know little about, this part of the business is a great deal more complicated than we suspect. It is argued that there should be far fewer gatekeepers, only 'aggregators' and that people should be allowed to decide for themselves. I've been known to argue as much, myself. But the grim reality is also that it can be very hard to find the occasional treasure amid the mountain of ill-thought-out verbiage and most of those treasures are the work of fellow professionals with many years of experience.

However, changes in technology do mean that all of us are going to have to adjust our way of thinking, publishers as well, although I'm sure many of them - perhaps the small to medium concerns most of all - have already taken this on board. When it comes to new developments, the video games industry may have something useful to teach us. We often assume that if people are willing to pirate music, they will also pirate  game downloads. Experience and hard evidence, however, tell developers that this is not necessarily the case. Huge numbers of people will happily pay £5 or £6 for a video game download, even quite a simple one, and many companies of all sizes are making themselves a very good living this way. Not only that, but the stakes are that much lower, so there's room for experimentation and the odd failure.

So we must ask why. Partly it seems to be the perception of value for money. Partly, it's because, even with these reasonably simple games,  there is the possibility of an update, or other 'enrichment' in the future. And partly, I suspect, it's that - although the video games industry has its problems, a relationship has developed between producer and customer (often by means of related online material, blogs etc) which in turn leads to an acknowledgement of value and a willingness to pay. Since a similar positive relationship usually exists between writer and reader, we must find new ways of tapping into all that goodwill. Most of us already do this,  but I get the sense that the games industry is also researching itself in a seriously committed way, (my own son is part of that movement!) while so much of publishing's relationship with the new technology seems to be posited on assumption, rather than hard evidence. But perhaps it's too soon. Perhaps the evidence will come. At any rate, the advent of e-readers, of Kindle and similar methods of delivery for the written word mean that the technology is in place to do the same thing for publishing. These are early days, and there are interesting possibilities for writers and for booksellers as well as publishers, in facilitating this method of delivery, not as a replacement for the conventional book, but as another aspect of distribution to a changing demographic.

As writers, we should be supporting bodies such as the Society of Authors, in making sure that we are fairly rewarded for our Intellectual Property within this changing market. But I think we might also stop talking about copyright, and start talking about IP. Intellectual Property theft has many manifestations, from the blatantly criminal pirating of material, on an industrial scale, to the borrowing-without-permission of copy from a blog or website as a one-off irritant. The former should be addressed with the full might of the law - or as much of it as publishers and writers can afford. The latter might be better remedied, in the first instance at least, by pointing out the 'error' and asking for attribution. In hard cases, fighting fire with fire, online ‘outing’ of culprits can have devastating effects on recalcitrant offenders. But whatever the transgression, it is the concept of Intellectual Property that seems to me to stand most chance of appealing to the emotional involvement of those people at the other end of the chain, who are guilty of the many small piracies that could add up to a big loss of income for all of us. If I accuse you of infringing my copyright, you may not give a damn. If I accuse you of stealing my Intellectual Property, you may at least pause for thought. Words are powerful tools when it comes to stirring up emotions. As writers, we know this better than most!

It will be difficult, if not impossible, to turn the tide by conventional means. Somebody working in the video games industry said to me, 'Effectively, you can't really protect your IP. People will steal it if they want to.' But the companies involved at least do whatever they can to try to protect their creative ideas, not least in enforcing secrecy agreements on their employees. There can be few professional writers who haven't seen at least one cherished idea turning up with somebody else's name attached. Most often it's pure coincidence. Occasionally you just know that it's been stolen, but there's not a thing you can do about it. And you have to get the stuff out there, take the risk. This is quite different, however, from seeing a project which you and others have taken to hard-won completion being pirated by somebody else - these are the true parasites and they drain the lifeblood of the industry. But we must remember that tides are also sources of energy, and perhaps, instead of struggling to turn this particular tide, we should be seeking ways to harness it to our own advantage.

As an example, I do wonder why publishers can't keep their entire backlists active in download form, for which readers would pay a smallish amount, a fair percentage of which could go to the writer. There are, no doubt, all kinds of logistical and legal problems with this, but it seems to me that the availability of many of these texts, coupled with a willingness to support writers in their own publicity drives, might be instrumental in sparking a renewal of interest in a particular writer and lead, eventually, to hard copy sales of new work. It should not be beyond the bounds of possibility for agents, authors and publishers to hammer out reasonable deals along these lines. At the same time, this might allow smaller publishers to address the problem of the 'collapse of the mid-list.' I can visit a supermarket these days, and hardly see a single book that I might want to buy, although I can fully acknowledge that no self respecting business is going to turn down the chance to capitalise on a brand. On the other hand, the potential cheapness of downloads, means that many publishers might be able to follow the example of the games industry and supply new mid-list novels, initially as downloads, relying on the potential of the internet to spread the word to niche markets and capitalising on the often considerable online following of a mid-list author.

A parallel and fascinating example from the world of games involves a game called Flower, which – being gentle, philosophical, poetic and demanding of no particular technical skill - is vastly different from our conventional ideas of that industry. It was never going to be a so-called Triple A title, on sale in the big stores. But sold on the Playstation Network, as a £6.00 download, and spread largely by word of mouth, bloggers and a few mentions in significant books, it gives hours of pleasure to many thousands of people worldwide, (myself included) and has made a tidy profit for its extraordinary development team, with the backing of a major company, backing which would probably not have been forthcoming without the possibility of distribution in this easy, cost effective way.

It is my view that, in the current highly polarised debate, we are not only underestimating the exciting potential of new technologies, but  also underestimating the genuine fairmindedness of many - not all, but certainly many – people, young and old, who would be prepared to pay a reasonable price for what they see as a good return in terms of entertainment.

We have to work out exactly how to organise this team effort, between publishers, online and real world booksellers, (the return of the smaller, private, niche seller might be facilitated if downloads could be obtained instore - especially if these smaller bookstores offered coffee, wifi, and their own expertise and advice), agents, writers, illustrators and all those other invaluable professionals in the middle, such as editors and publicists. All of these have their counterparts in the games industry, and without them, nobody would ever think they could produce a reasonably complex and entertaining game, even as a simple download. Or if they did, they would soon find out how hard it was. The 17 year old genius producing a best selling game in his bedroom is something of a myth. Look at the credits (beautifully organised within the game itself) on Flower. Look at exactly how many talented people have worked to produce this ‘simple’ hugely creative game even though it was initially conceived in the mind of one man. It is in working out how best to facilitate something similar for the written word that the challenge truly lies.

Are we up for it? I certainly hope so. Because I think that if we go about it in the right way, the benefits for all concerned could be immense.


Gillian Philip said…
A very good and thoughtful post, Catherine, and I think you raise some important issues about making use of the new technology, not fighting it. But some of us are trying to do that already - yet still the very concept of 'copyright' gets nothing but sneers from certain quarters. I think this will come down eventually to a struggle to change attitudes, because most people are fair-minded, but some simply are not. There are those whose politics of envy would like to see paid and published authors put out of business. All we can do it persuade the majority that 'fair trade' applies to creative works.

And I've tried to use the term 'Intellectual Property', only to be told it was a meaningless concept. Mind you, I suspect they considered all property a meaningless concept - except perhaps their own.
You are right. And there IS a good deal of envy. Or at least a sense that anyone who makes it is just 'lucky'. The harder you work, the luckier you get, but that doesn't go down well either! I don't think IP is meaningless, and at least it has an emotional kick to it. But I also LOVE your idea of Fair Trade - we should certainly be punting that one as energetically as possible, since it's an idea that could include writers, publishers, booksellers and everyone else involved.
Jane Smith said…
Catherine wrote,

"As an example, I do wonder why publishers can't keep their entire backlists active in download form, for which readers would pay a smallish amount, a fair percentage of which could go to the writer."

There are problems with that, Catherine, as publishers don't always own the rights to publish electronic editions of the works in question, and so wouldn't be allowed to do this; if both hard cover and paperback rights were sold which publisher would be in charge of providing the downloadable version? and once a title stops selling the rights often revert back to the writer so even if the publisher started out with the e-rights, they might not retain them for long.

(There's an potential advantage to the writer when rights revert as it gives them something they or their agents could perhaps sell again, so this isn't something I'd want to see lost.)

And Gillian, intellectual property might be a meaningless term to the peole you were discussing it with but there are plenty of lawyers out there who specialise in IP, who would dispute that it has no significance.
I assumed there might be some problems such as this, Jane, so thanks for clarifying. I reclaimed the rights to one of mine fairly recently! But I'm not at all sure that I wouldn't have been happy for it to have been available as a download, since - although people still ask me for it, I've 'moved on' as a writer. But, of course, with a different novel, the situation might have been quite different. Still, this is something I think we have to talk about, to have just such issues out in the open and fully explained.
Gillian Philip said…
Oh yes, Jane & Catherine, I'm sure Intellectual Property is a proper legal concept, and I didn't mean to imply I agreed with the sneerers. But it's an example of the kind of mindset we're dealing with. We're going to have to appeal over the heads of the thieves to the fair-minded majority - and that's going to take a lot of effort.