Friday, August 08, 2014

a variety of thoughts on Hachette/Amazon... and on ebook royalties


Yesterday, after a hell of a lot of careful analysis, discussion, debate and argument among our volunteer leadership, I had a staff member press publish on The Writers' Union of Canada's public statement about the ongoing, and increasingly nasty dispute between publishing giant Hachette Book Group and online retailing giant Amazon.com. The disagreement between these two companies is in its fourth (fifth?) month right now, and several new salvos of ammunition will fly tomorrow when an ad hoc group of 900 or so international authors publishes an ad in the New York Times calling for peace.

Quite predictably, I arrived at the office this morning to find criticism of the TWUC statement in my e-mail in-box. Also quite predictably, that criticism came from every conceivable direction. TWUC had been too hard on Amazon and/or Hachette. TWUC had been nowhere near hard enough on Amazon and/or Hachette. TWUC had given independent booksellers a free ride. TWUC favours traditionally published authors over self-published authors. Vice-versa. Etc.

I also found praise in my in-box, but you know how it is... one little blemish can define the whole apple.

This posting is not a complaint. I like blemishes on my apples (means they're real). My mind was clear when I signed the contract for this job. I knew what I was getting into. I chose this industry for my career BECAUSE it is an industry of ideas, of thinking (careful and otherwise), of opinions (both the half- and fully-cooked variety) well-constructed and firmly issued. That's how real people operate and, for the time being anyway, this is an industry of real people.

I believe strongly in the TWUC statement because it focuses on a call for decent behaviour in the marketplace (from all players), the value (rather than the price) of books and authorship, and a fact-based understanding of a changing business. It's very easy to see this issue split between two opposing sides, and I think it would be very easy to pick one or the other side and splash around madly in the rhetoric of that particular camp. TWUC created its own side, the side it believes it is asked to represent. The fact that many folks within and without TWUC feel uncomfortable with this or that aspect of the statement tells me we got the words in it just.. about.. absolutely.. correct.

The Amazon/Hachette fight also gave TWUC the opportunity to focus on some math it has been doing about author royalties on ebooks. Considering the long history of publishing and bookselling, the market for ebooks is still in its infancy, which means that the hard costs for ebook production and distribution are perhaps not fully fleshed out. Certainly an author puts in just as much personal investment of money and time into writing a book whether it ends up on paper, pixel or both.

I love that the self-publishing universe is expanding, I love that many authors are making big bucks in that universe, and I'm dedicated to helping TWUC's self-publishing members with their careers as best I can. All that said, I believe in the ongoing value of traditional publishing - the real value, the numbers value. When I sign with a traditional publisher (as I have), I am relieved to not have to do the work they have agreed to do, and I want to feel the business deal we strike for that work is fair for both of us. So, I do the math. At the moment, my math is telling me that a 25% author royalty on ebooks is too low.

I'd love to hear what others think of the math, and I'm pretty sure that means I will hear folks tell me it's wrong for one reason or another.* Okay. The royalty math page on the TWUC website, like the public statement about Hachette/Amazon, is about discussion and dialogue.


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*The numbers for the royalty math presentation do not come out of thin air, btw. We consulted widely across the industry on this. 

Tuesday, July 15, 2014

anti-spam law to make life better with its smile


Barry Sookman is a highly respected practicing lawyer, educator and commentator. He is unquestionably Canada's leading expert in copyright, intellectual property, computer, Internet, and e-commerce law. Sookman and his firm, McCarthy T├ętrault, have been on top of Canada's Anti-SPAM debacle from day one, providing invaluable legal analysis for Canada's not-for-profit community about how to attempt to be compliant with what appears to be, by nearly all accounts, a misguided and ultimately ineffectual legal overreach in the name of "consumer protection." You must read his latest in-depth analysis of the CASL saga, in which he absolutely undresses one of CASL's greatest defenders.

The introduction of the new Anti-SPAM law, known as CASL, is the reason you (if you're a Canadian) received all those somewhat desperate "Let's Keep in Touch" e-mails from various charities, advocacy groups, cultural businesses and not-for-profits at the end of June. Maybe you didn't notice those messages because maybe they went into the spam-filter on your e-mail server, as they did for many. Yes, the approaching anti-spam deadline resulted in... spam.

Why? Because, all those very good, dedicated, already overworked professionals were scrambling for some sort of due diligence in order to not run afoul of the law by inadvertently sending an electronic message that could be interpreted as "commercial" in nature. They suddenly needed your express consent to keep trying to communicate their message, their mission, their passion. A law purportedly aimed at herbal Viagra peddlers and those con artists who fill your in-box with worrisome link come-ons and Nigerian money transfer offers was making its first real impact (and possibly its only impact) on well-meaning folks who are instead actually trying to do some good in this world. I personally spent about twenty hours in meetings trying to figure how my own organization could keep doing business honourably and effectively and, frankly, I'm still not sure if we're doing everything absolutely correctly.

By the way, if you want to unsubscribe from this blog posting, please click here. Or, just stop reading and don't visit this blog again. You have personal agency. I encourage you to use it!

Would some sort of legal remedy for uninvited herbal Viagra messaging and illegitimate lottery-win phishers be welcome? I suppose. Does anyone really believe CASL is anything like that remedy? At best, CASL was an earnest, well-meaning try by the federal government - and good on them for trying. There's no real shame in admitting it didn't work as planned. Look, no-one enjoys genuine e-mail SPAM. I hate the stuff - but look at this tiny yet representative sample of what has appeared in my own SPAM filter since the July 1st CASL deadline that promised the end of all this stuff:

"Last Day! - LV bags 6O-8O% 0FF" 
"My dear Jack, I am easygoing, realistic, humorous, clean-cut, kind and affectionate. I have a good taste. I am fond of traveling, listening to music, cooking and going to the gym.
I like everything beatiful and try to make my life beautiful. I will make your life brighter and better with my smile..."
"Which diet suits you BEST for controlling blood sugar"

I don't know what an LV bag is; my name is not Jack; and you can bet if I ever did send out a commercial message with a question in the subject line, it would be properly punctuated!

As Barry Sookman points out in his excellent blog posting, the new law is now, rather sadly, being touted as a "privacy law in disguise." I saw that claim online last week, which prompted me to tweet this:

Canada's anti-spam law really a privacy law in disguise... because, um, the best laws are "in disguise"?

Here's hoping Canada's anti-spam law story is not over, that we discard what doesn't work and fix only that which is actually broken. Let's save the disguises for Halloween.



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Photo of a smiling Barry Sookman courtesy Barry Sookman.

Tuesday, June 03, 2014

UBC accused of trying to appropriate intellectual property... by its own faculty



A while back, I pointed out why I thought college and university instructors should be very worried about their administrations' increasing insistence on free copying to keep down their (already small) materials budgets. In my opinion, faculty are being left in the legal wind, forced to follow copying guidelines that have no real legal foundation.

Earlier than that, I noted that the Supreme Court of Canada seemed to have drastically reduced the concept of "teaching". Whereas we previously understood that a teacher was a highly trained professional who combined a thoughtful pedagogy, advanced empathy, an impressive work ethic and an abundance of volunteering, the SCC seemingly reduced the profession to s/he who hands out copies of written material to students. I warned that this looked to me like a gloomy portent for teachers going forward, especially in contract negotiation. The Supreme Court washed the instruction part right out of the profession of teaching, as well as the individualism.

It is a commonly understood trait of chickens that they do come home to roost, and it sure looks like the chickens of free culture are no longer satisfied with what they can peck from writers outside the academy. They are roosting, and pecking, on faculty. Last October, the University of British Columbia Faculty Association sent an e-mail to the university's legal counsel expressing deep concern about a new policy mandating that faculty share their personal intellectual property with the wider university community.
"...we strongly object to any policy that mandates, overtly or by inference, that faculty provide others, including the University itself, open access to their intellectual property. Such a policy is not only contrary to the fundamental tenets of the academy, but it is an attack on academic freedom and the legal and customary control faculty members have over the fruits of their intellectual labour."
That is a beautifully written objection. I agree with it wholeheartedly. The UBCFA further argues that the pressure to give up their IP rights may actually "lead to less sharing and innovation" by faculty. Again, I agree, and I imagine most if not all professional writers in Canada would as well, whether they are connected to a university or not.

The UBCFA went so far as to file a grievance on the issue, and to send notice to the administration that, pending the outcome of the grievance, "Teaching Materials may not be used by the University or by other UBC Instructors as contemplated in Policy 81, in the absence of express permission from individual faculty members to do so." The administration was quick to flatly deny the UBCFA this demand.

Coming to the defence of its members at UBC, the Canadian Association of University Teachers (CAUT) sent a strongly worded notice to UBC President Stephen J. Toope that CAUT intends to "censure the University of British Columbia at its next meeting in November 2014" unless UBC stops appropriating faculty intellectual property.

I have no idea what is entailed in an official censure of a university by the CAUT, but it doesn't sound pleasant. On the other hand, this is where this whole story gets weird for me. I have always believed writers and teachers (and students and librarians) are actually on the same side in intellectual property disputes with educational institutions. IP rights are the individual rights of everyone, and when one group's IP is appropriated, everyone's is. But that has not always been the opinion of the good folks at CAUT.

When Access Copyright launched its entirely justifiable lawsuit against York University, claiming York had overstepped with claims of fair dealing for massive, industrial, course pack copying of writers' work, CAUT was one of the first groups out of the gate to denounce the legal action, calling it "hopeless" and insisting that collective licensing (which is essentially a legal sibling to the collective bargaining teachers' unions do) is "obsolete."

That CAUT is now insisting on protecting the intellectual property rights of its members (many of whom are also Canadian authors whose non-academic work continues to be appropriated by fair dealing overreach) seems strangely inconsistent. Only some of their members' intellectual property rights are worth protecting?

I believe all of their rights are worth protecting, as does The Writers' Union of Canada, which has always publicly supported teachers, librarians and students in their own disputes with administration. Whenever I speak with groups of individual instructors, students or library workers, they completely agree that IP rights are tied to employment and fair pay rights. I'm going to take it as a hopeful sign that the teaching associations seem to be coming around on that point as well.

(image courtesy the UBCFA website)


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Friday, May 16, 2014

education's empty promises to authors


The latest issue of Quill & Quire magazine contains an excellent investigative piece by Julie Baldassi on the mounting damage to Canadian educational publishers from the loss of millions of dollars in royalties after schools, colleges and universities cancelled collective license agreements. Jobs have been lost, more losses are expected, and the viability of an important industrial sector is in doubt.

Most striking in the article are details about how promises of greater direct contact between educational institutions and individual publishers appear to have been made of air. From Baldassi's article:
... the Association of Universities and Colleges of Canada has encouraged members to set up internal copyright offices, but publishers interviewed for this story say they have rarely been contacted by individual institutions in this regard. (The AUCC declined to comment.)
Of course, why would an institution seek clearance to use content it is claiming for free? 

While schools like the University of Toronto make much of their materials budgets and the amount of money their students are spending on full books, a claim of free copying for entire chapters of books can do nothing but reduce overall spending on content. This is from U of T's press release after license negotiations ended:
The University of Toronto’s community consists of both users and creators of copyrighted material. The University remains committed to diligent compliance with the laws that address the rights of both.  In addition, the University spends over $27 million annually on library acquisitions, including licensed material and electronic resources, and also supports scholarly publishing through the University of Toronto Press.
It’s true, of course, that universities are communities of creatives. Many, like U of T, even teach courses in professional creativity. This year, U of T is offering a class called Playing the Short Game: How to Market and Sell Short Fiction. The prerequisite for this class is that students should have at least “one story completed and ready to send out to market.” From the U of T website:
This course teaches you the business side of short fiction. By the end of the course, you will understand the benefits of short fiction for a writing career, rights and licensing for short fiction…
Of course, by U of T’s very own copyright policy, there are, functionally, no rights or licensing possibilities for short fiction within the educational market. You pay tuition to learn how to sell your short story. They won’t pay for that short story.

Here’s a very fuzzy photo I took with my iPhone in the University of Toronto campus book store yesterday afternoon. Sorry about the poor photo quality. Sad irony makes my hand shake a little.




The book in the photo is Producing Canadian Literature: Authors Speak on the Literary Marketplace, by Kit Dobson and Smaro Kamboureli (Wilfrid Laurier University Press, 2014). It was displayed on a shelf reserved for "University of Toronto Books" but I can’t for the life of me figure out why. From the WLU Press website:
Producing Canadian Literature: Authors Speak on the Literary Marketplace brings to light the relationship between writers in Canada and the marketplace within which their work circulates. Through a series of conversations with both established and younger writers from across the country, Kit Dobson and Smaro Kamboureli investigate how writers perceive their relationship to the cultural economy—and what that economy means for their creative processes.
This book would really fill out the reading list for a course like How to Market and Sell Short Fiction, wouldn't it? Except, any one of the chapters from that book is now fair game for free copying if universities get their way on fair dealing. What would that outcome mean for writers’ “relationship to the cultural economy.”?

Do schools, colleges and universities really copy that much? Of course they do. My own kids’ school materials from day one have been mostly photocopied individual sheets. I can count on one hand the number of actual books they’ve brought home from school. Copying is rampant in education.

It appears the University of Toronto copies so much it’s willing to go to court to stop the rest of us from knowing just how much it copies. This recent public ruling from Canada’s Copyright Board notes the university went to the Superior Court of Ontario in an attempt to keep “evidence” of their copying practices from appearing before the Board. I hope we can all agree - in the spirit of open access to information - it’s a very good thing indeed that both the Superior Court of Ontario and the Copyright Board denied U of T this gambit.

There’s a popular suggestion that, with the transition to digital course packs from the printed variety, we are entering an era of less copying. Nonsense. As this slideshow from the University of Minnesota clearly shows, digital course packs realize a cost savings for students over both printed packs AND textbooks, which means the trend is toward even more copying in the educational environment.

What may be true is that copying in schools will simply become less apparent to those being copied. Digital course packs don’t appear on bookstore shelves. And without access to research numbers who knows how many students take delivery of each course pack offering in the digital realm? In the new era, it may be up to individual authors to file information requests with individual universities, just to find out if their work is being studied. And who knows if the information will be forthcoming? U of T’s appeal to the Superior Court of Ontario is certainly not an encouraging sign for authors.



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Wednesday, April 23, 2014

when "open" means "inferior"



I await with profound impatience the day when much if not all digital jargon appears on the Banished Words List from Lake Superior State University. LSSU has earned a well-deserved reputation (and a special place in my heart) for identifying the overuse and misuse of jargony catch-phrases that infect the popular lexicon and make us all just a little bit less exact than we perhaps should be in our communication.

The prominence of "selfie" at the top of the LSSU list this year is reason for hope, I think, as were previous appearances by "trending," "viral" and "fail." I've been running a personal campaign against "mash-up" for about six years now, and if "hack" doesn't make the list soon, there is no justice. With any luck, the online havoc created by this month's Heartbleed bug will have rocketed the cutesy term "open" or its extended versions "open-source" and "open access" to the top of the list - to be banished before their source word loses its meaning altogether.

In the last year, I've noticed with some hilarity a local Toronto home alarm service advertising itself with bold claims that it uses "open access" technology in its systems. Why, I wonder, would "open access" ever be thought of as a plus for something designed to secure one's property? What this service actually means is that it uses a system of direct access communication to local fire departments in order to cut response times on fire calls. Why, then, don't they say direct access? I suppose because "open" access sounds so much more welcoming and friendly - look, it's open; that MUST be good.

Well, as we've recently learned the hard way, open ain't always good. This past weekend, the New York Times published this article by Nicole Perlroth suggesting the recently revealed extreme vulnerability of much of our online commerce and communications systems is directly linked to the openness of these systems.
"Much of the invisible backbone of websites from Google to Amazon to the Federal Bureau of Investigation was built by volunteer programmers in what is known as the open-source community. Heartbleed originated in this community..."
The fact that the Heartbleed bug seems to have been surreptitiously undermining our global web security for up to two years before anyone noticed should make us all pause to re-assess how we feel about the fashionable ubiquitousness of "open." When the door to a bar is open, that's a good thing (almost always). When the door to an airliner is open, 30,000 feet up, something's probably gone wrong.

I did a quick search of the term "open source" on the New York Times website and found, naturally, that its use has increased dramatically since the turn of the 21st century and that, for the most part, it carries with it an aura of goodness. But if we look a bit further back, one notes the term has greater depth and darker connotations. A 1931 article on hygiene in the school system warns of "open sources of contagion"; a book review refers to "open sources of danger"; many articles praise the use of "open sources" for domestic and international spying.

But why would something with declared positive intentions, like the open source software movement, run into such a diabolical problem as Heartbleed. According to the New York Times, it all comes down to money.
"... for those that do work on this [open source coding and bug-checking], there's no financial support, no salaries, no health insurance... They either have to live like monks or work nights and weekends. That is a recipe for serious trouble down the road."
In other words, according to those most invested in the open source movement the open source economy would work a whole lot better if those creating and maintaining open source code were paid well to do so.

Of course, this has applications beyond the world of coding. Many educational institutions these days are banking big on open-access and open-source learning materials as a means to save money. While backing out of licensing arrangements that pay creators legally-required royalties every time our work is copied and used in the classroom, many schools reference the increased availability of open access materials. Why pay for something when you can get something else for free?

Because, as the Heartbleed bug has so dramatically demonstrated, when open also means cheap you get what you pay for.


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Image courtesy the open source of my own vacation snapshots. No one was paid for that photo, and I believe it shows.