26 October 2006

Caffeination Required

This morning, I'll start with a few miscellaneous items, and then—when the double-Sumatran-mocha's caffeine hits my bloodstream—discuss a significant ruling from the European courts.

  • The Pittsburgh Post-Gazette trots out the old chestnut about how interpretation of classical works—specifically citing Beethoven's Fifth Symphony—results in different works and impressions of the composition. It's a roasted chestnut, actually, because a musical score is more a recipe than a recitation. Just as one gets a different impression of roasted chestnuts depending upon how long they're roasted, in what kind of oven, etc., one gets a different impression of a symphony depending upon its preparation. That is as it should be; it is not an exception. Except, perhaps, in the minds of journalists who only communicate with the written word. (And badly at that.)
  • Then there's the usual whine that newspapers aren't printing enough coverage of books. The problem with this argument is twofold: It assumes (1) that people seeking information on recently published books turn to newspapers for that information, and (2) that people then act on that information. Since neither is true, it shouldn't surprise anyone that newspapers are finding it unprofitable to act as if they are true together. That leaves aside the concerted refusal of most newspaper-based book reviews to actually evaluate books. One simply doesn't find a "zero to four/five star" system parallel to film (and some TV and recorded music) reviews; instead, one must wade through overwritten prose in an attempt to discern whether the reviewer is actually recommending purchase of the book, let alone how strongly. In short, even if people were looking to newspapers to make actual book-purchasing decisions, the information provided by the newspapers wouldn't help much.
  • Surprise, surprise. Thomson may be seeking to sell off Thomson Learning (the educational division). If nothing else, this demonstrates that there is no "publishing industry" per se, but only an accretion of niche publishing ecologies. Thomson appears to have discovered that the highly regulated educational market is not a good fit with its other publishing activities (including the 500-lb gorilla of legal publishing). That this was a predictable result does not diminish the antitrust implications of the original acquisitions that created Thomson Learning. Ultimately, this is a tortoise-and-hare problem. The education niche in publishing is very much the tortoise: It's never going to move very fast, but it will move steadily. The problem is that venture capitalists want to catch hares, then eat profit from them, while discarding the slower tortoises scooped up along with those hares. Unfortunately, unrealistic expectations have never stopped anyone from making unwise and/or inappropriate investments...
  • Last in the short takes, retailers now deny that HarperCollins (UK)'s distribution woes will harm holiday-season sales. Yeah, I'm convinced. Note that the only two "retailers" cited in the article are megachains, and draw your own conclusions.

And now, the significant bit. Earlier today, the European Court of Justice held that Spain (in No. C–36/05) and Italy (in No. C–198/05—sorry, so far available only in Italian and French) violated Articles 1 and 5 of Council Directive 92/100/EEC (19 Nov 1992) by exempting almost all establishments engaged in the "public lending of works"—that is, libraries—from the requirement to compensate authors for rental and lending rights. This will have huge implications for both authors and libraries.

On the one hand, I have some sympathy for libraries. (Actually, I have a great deal of sympathy for libraries, just a little bit less than usual on this issue.) This will essentially require setting aside a portion of already-inadequate budgets to both compensate authors and administer the compensation. Unfortunately, it's extremely difficult to get increased funding for libraries, just as it is extremely difficult to get increased funding for anything else in the arts. There is virtually no possibility that funding for libraries will be increased enough (at least in the long run) to compensate authors without requiring service or other cuts in the libraries. That's a bad thing for authors.

On the other hand, the lending/rental right in the European Union represents a sub rosa recognition that authors don't get adequate compensation from the publishing industry.

27. Exempting almost all, if not all, categories of establishments which engage in such lending from the obligation laid down in Article 5(1) of the Directive would deprive authors of remuneration allowing them to recoup their investments, with inevitable repercussions for the creation of new works (see Metronome Musik, paragraph 24, and Commission v Portugal, paragraph 25). In those circumstances, a transposition of the Directive that results, in practice, in such an exemption for almost all, if not all, categories of establishments goes against the main objective of that directive.

28. However, in that regard the Kingdom of Spain maintains that the cultural promotion objective takes precedence over guaranteeing that authors receive appropriate income. The freedom conferred on Member States by the Directive thus enables them to allow authors only very limited, symbolic remuneration, or even none. Furthermore, the 2002 report on the public lending right bears out that interpretation.

29. It is true that cultural promotion is an objective in the general interest which allows the exemption, under Article 5(3) of the Directive, of certain public lending establishments from the obligation to pay remuneration. However, the protection of rightholders in order to ensure that they receive appropriate income is also a specific objective of the Directive, as the seventh recital in the preamble clearly states. It was precisely to preserve that remuneration right that the Community legislature sought to limit the scope of the exemption by requiring that national authorities exempt only certain categories of establishments from that obligation.

(EC v. Spain) It's far from clear exactly what the rationale was for the 1992 directive, but its effect is to protect authors (at least a little bit) from having their popular works priced out of the marketplace for individual purchasers. Saying that the publishing establishment's pricing policies—here or overseas—are completely irrational gives them too much credit. Even the automobile industry does better! The directive also helps protect authors from premature diminishment or ending of print life... at least a little bit.