Draft Everything2 Terms of Service response (idea)

I too often work with copyright contracts, not as a company but as an individual, both as a sculptor who makes public art and as an author published in the USA, Japan and several European Countries.

As a sculptor I always use a standard National Artists Association contract, which has been written on behalf of artists and refined over many years. As an Author I am usually at the mercy of far more avaricious organisations, namely publishers, and the contracts I am forced to negotiate are far more exploitative. These contracts have usually been rattled together by teams of lawyers whose main concern is watching the companies back.

The clear difference between these two types of contract is in the perspective from which they are written, arts contracts are written in favour of the Author of the work, publisher’s contracts favour the prospective exploiter of the work.

You can spot the difference with your eyes closed: Artists contracts start by affirming total ownership and rights belonging to the author, then seek to define the terms of limited licence; such as licence to reproduce, in defined forms, territories and situations, whether sublicensing is allowed, and for what recompense.

Publishers contracts usually come at it from the other side, assuming that the goods and the rights to it are basically theirs, then adding clauses that make concessions towards the author that are usually painfully laboured and dubious in law. As the rights to any work reside with the author in the first place this approach is always bound to be torturous, something akin to describing someone else only in terms of yourself.

The copyright section of the proposed TOS appears to me to have been drafted from the latter type of contract. What most people forget about contracts, usually because money is being dangled in their face, is that a contract is an agreement, therefore it should reflect both parties interests and seek to express terms that both parties are satisfied with. In the case of E2 this shouldn’t be too tricky, there is an established status quo that most seem content with. When you bear in mind that the website consists almost entirely of the contributions of its authors, that money is not being dangled in the authors faces, and that the proprietors of the E2 site also have a product and should be able to expect to gain value from it as much as the authors gain reputation.

We would be foolish to expect the owners of E2 (whoever they are) and their successors (whoever they may become) not to wish to make money out of the site, and any attempt by us authors to prevent this may well be throwing the baby out with the bathwater as we all stand to gain from E2’s future success or fame. But at the same time the content of this site will surely suffer if the authors feel they are being exploited. One key aspect of this potential exploitation is the perceived loss of authorship that will result if E2 subs out its licence to reproduce. I say perceived because at the moment we all understand that our work is universally available, but we also know that it is available under our name, or at least our username. The right of attribution has not been mentioned anywhere in the draft TOS, yet it is arguably the most crucial part of copyright law for authors of works, after the financial stuff (which we have not got in the case of E2). In fact the right of attribution cannot be sold, licensed or done away with in the case of original works anyway. Anything that we write as authors must be attributed to us, regardless of how complex the chain that leads to the final publisher, or we have right to redress in law. All we need to do to ensure this is to assert our moral rights of attribution. I am aware that the right of attribution is recognised as law in almost every country other than the USA where it is debatable, however as E2 is published internationally it could specifically state the international convention with which it will abide, as these are reciprocal under The Berne Convention in almost every country.

I would like to suggest then that the copyright section of the TOS begins by stating:

At all times copyright and ownership of the reproduction rights to any works included in the E2 website remains solely and entirely the property of the author of the work.

By posting works on this site the author agrees to grant to E2 and its successors (exactly who this is to be specified in a previous clause) the following: 1 Non-transferable licence to reproduce electronically and physically throughout the world, and to permit third parties to publish the same works as it sees fit (this is inevitable with rss feeds etc, but leaves control in E2’s hands – this is negotiating power for E2).

2 exclusion of re-written or mutilated works, except for excerpt, précis and abstracts. (This is a primary moral right that all authors hold, by right, and should not give away lightly.) 3 that the licence expires when the work is removed (by author or E2) and that if so, all rights revert to the author. 4 that any work present on E2 at the time of reproduction is deemed to be subject to the same terms of licence even though it may have subsequently been removed from the website. (This is to ensure that the terms aren’t forfeit once further published; protecting both E2 and the author of any further published work. Meaning also that E2 cannot publish retrospectively any removed work that it may have archived.) 5 What money is due to the author for the licence to reproduce (ie nothing) and that E2 can claim to have satisfied it. or any other financial arrangements. 6 Any other agreed terms that are deemed important.

Finally in nice big letters:

Right of Attribution.E2 agrees to attribute the work of the author to the known authors name or username at all times and to assert the authors right to attribution to any third party.

I had intended to post a short reply to the TOS posts above, but it seems that it has grown into a monster. These are simply my initial responses, off the top of my head to the interesting issue that appears to have developed, I am sure that there is much more that I could add to this, especially given some time to consider the issue more thoroughly, but feel that it is best to stop now. I am sure you have got the idea.

In reply to Iceowl’s addenda above I would like to say this: Despite agreeing with the majority of Iceowl's write-up, regarding copyright ownership, I feel that Iceowl tends to present a rather despairing view. It IS the case that as authors we each have automatic rights to our work that are always upholdable in law, unless we agree to licence the reproduction rights, which is the only right that can be transfered to someone else. It isn't even necessary to append the © symbol. Of course it is another thing to say wether we have the wherewithal to uphold those rights, by for instance taking someone to court. The point is we would be justified in law to do so. This is an identical issue to video piracy, it happens, it is illegal and individuals can be convicted for doing it, but in practise it only ever goes to court when the losses or gains are worth the expense of going to law. Not being caught doesn't make it legal.

Iceowl says “Bottom line - Author beware. Put nothing on E2 for which you wish to retain full ownership. It's that simple." Iceowl is being a bit misleading here. If you have not expressly granted the rights in something that you have written to someone else, It remains yours, no matter who unlawfully reproduces it (yes even if Time Life decides to, if they haven’t got a paper trail leading back to your agreement, and you can prove you are the author, they would be pirating your work).

Iceowl does have a good point when he says "(And) for most people, I suspect it's a non-issue.” We want our writing on the net, that why we use E2. Now we all know that any writing spreads across the internet like wildfire, but just as in the case of photographs, if we see something that we have written, and haven’t sold, we could assert our rights to it, and if necessary take the issue to court, if the losses or gains are worth the expense of going to law.

Iceowl’s Antarctic example demonstrates the dual nature of copyright very well. He has sold the reproduction rights (by being funded to travel, etc) to the U.S. National Science Foundation. They own that right and now police its use. But Iceowl’s right to attribution is still his, what is more the U.S. National Science Foundation is legally bound to police this right for him too.

Somewhere between reproduction rights and rights of attribution exists the right for the work not to be mutilated or changed, this usually resides with the author too – or it should, in order to avoid someones name being attributed to something that has been changed to such an extent that it could ruin the authors reputation. In the UK this issue was the basis for a case between the artist Bridget Riley and Pretty Polly Tights who used one of her paintings for a tights advertisement without consent to add naked legs to it.

The more that I read about this issue, the more it seems to me to be an opportunity for E2 to solidify its position as an unique entity on the internet. The reason that I say this is that in almost every site where Artists or authors are invited to post their work, there is a catch, a copyright catch or a financial one. E2's strength is the creativity and diversity of the content that it contains. If E2 takes the trouble now to craft a liberal, non-exploitative copyright agreement, one so permisive that even well known authors would be willing to use it, the site will become unique for that alone. In doing so the current userbase will not migrate and the quality and diversity of the work will not suffer, no doubt it will increase as its competitors become more blandly uniform.