The indigestible part is this: When it comes to intellectual property, we must discriminate... and we must do so on broad categories that concern the content and the characters, not the color of the binding. The integration between information and expression is inherently different for a novel by John Updike than it is for a programming guide to MySQL. Similarly, the integration between textual and nontextual elements is different in a graphic novel from that in a cookbook. This is subtly acknowledged in the second fair use factor, which requires inquiry into the "nature" of the work.7
The commercial realities of republication of out-of-print works also reflect this distinction, although the publishing industry's historical practices (not to mention frequent business failures!) tend to mask this. Consider, for example, a twenty-year-old work that has been out of print for a decade or more, for whatever reason. It is certainly possible for a work of fiction to be republished unaltered,8 by a different publisher; one good example is William Gaddis's underappreciated The Recognitions, which did poorly on initial publication in the mid-1950s and received substantial acclaim on republication by a different publisher in the mid-1970s. Perhaps it does not happen often enough, given some of the dreck put out by publishers as "fresh" fiction today! Conversely, it is exceedingly rare for most types of nonfiction to be republished without some kind of updating... sometimes so substantially that the editor of the original edition would not recognize it as the same book.
Between the different quanta of copyright originality and the commercial realities of republication, one issue becomes clear: The mere fact that a work was published in a single bound volume does not describe its "nature" for purposes of either copyright or commercial viability. Instead, one must consider the content; perhaps not even at the level of the sixth-grade book report, but certainly in broad categories.9 The proposed settlement's utter failure to even acknowledge that a book, by any other copyright consideration, is not a book is by itself fatal to the proposed settlement's viability.
- 17 U.S.C. § 107 reads:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2)the nature of the copyrighted [sic] work;
(3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4)the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
(emphasis added). The word "copyrighted" in the second factor should have been "copied" for clarity, as the fact that it is a fixed work makes it "copyrighted" under the 1976 Act. Instead, this wording reflects the paradigm of the 1909 Act... and, for a work out of copyright, it's irrelevant anyway.
- For this purpose, correction of printing and publishing errors is not an "alteration." A substantial change to the text, such as adding another chapter, would be.
- I will discuss how a work's nature may change during its copyright life later in this essay. This is an even more frustrating aspect that the proposed settlement completely ignores.