Publication is Publication
In some ways, I can't believe that more than 15 years after the first evidence that the Internet can be eternal, we're still fighting this fight.
Publication, whether you publish online or in print, is publication. When you publish, copyright applies. Yet copyright is about more than the rights granted to the author.
In the US, the Constitutional Clause which even permits copyright to exist is:To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
And in the 1976 revamp of US Copyright law, publication is defined as:"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.
(bolding mine)
Until the 1970s, copyright itself required that you place the document on deposit with the Library of Congress, so that the document would continue to exist beyond the limits of copyright, to eventually be entered into the public domain. Even if you chose to withdraw the document from publication, it still existed and still would eventually be a part of the public domain.
(Edited, 4/20/2011: the above is wrong, prior to the 1970s, notice was required for copyright but not registration and deposit. Although from what I have found, registration and deposit was still required for doing much of anything about infringements, as it is today: http://www.copyright.gov/fls/fl109.html).
Nowadays--while that requirement has been lifted--if you do not register your copyright, your ability to do anything when your copyright is violated is still limited, in particular ways which deeply affect copyright infringements of free publications.
Also, once you've published, you have started the countdown to the document eventually being a part of the public domain. That is the flip side of copyright--you are granted copyright on your published document in return for it eventually NOT being under copyright and freely available to the public without restriction.
So, I am starting from this basis.
1. Under US copyright law, posting a fan fiction story publicly to a service which allows distribution to other fans constitutes publication as defined.
2. Thus, all aspects of copyright law and case law apply, both the author's rights to restrict future new distribution and the rights which copyright/case law has granted over time to the end user's ownership of their personal copy of that document.
Over the past year, I've gotten into another online community which also deeply struggles with the reality of copyright on electronic files, and what it means legally. In the case of this particular community, there are not quite the gray areas which we sometimes associate with copyright on fan fiction. In fact, what copyright allows to the creator and end user have been fought through the courts over the past century and there is case law which is directly applicable to the community. And to my surprise, the way the rights permitted to the end user have been interpreted and are implemented are far more liberal than you'd expect.
For example, there are free documents available for download (there are also documents available for purchase). When I chose to "download" a freely-offered file on the major site for this community (over a million users), I can either select to download that file to my computer, or save it into my electronic library on the site.
Should the author of that free document chose to remove it from the site and I've "downloaded" it only into my electronic library on the site, it is still available to me. In the way that copyright law has been interpreted here, I now own a particular copy of that document whether I downloaded it to my computer desktop or only to my electronic space on the site.
For years, I've played with an evolving design for a new fan fiction archive, and this idea was certainly something that never occurred to me. Once a reader saves a file into their own electronic bookshelf, they forever own a particular copy of that file--whether they've downloaded it to their physical computer or not. The fan fiction community would explode. But it is a legally valid interpretation of how copyright functions in combination with electronic bits.
It still would be a violation of copyright for me to then take my copy of that file and e-mail it to another person. Unless of course, I did that AND deleted my personal copy of the file. But the other person, once they finished with the file, could e-mail it back to me.
Then we get into the murkier rights about copyright and time-shifting/use-shifting which are still being fought. In essence, as long as I do not USE my copy of that file while the other person has "borrowed" it from me, is it a violation under the spirit of copyright and the understandings granted by case law? So if the electronic site set up a "lending" relationship between users which allowed a user to "lend" the file for a limited amount of time and locked the file for the original user during that period, would that be legal? In my understanding, yes.
Beyond that, we get into the reality of what the original author of the document can actually do once their copyright has been violated:
1. If a creator/author really wants to take this to court, they must register their document and put it on deposit with the Library of Congress, thus ensuring that this document has been made immortal. Which doesn't seem like a good idea if the author has intentionally tried to suppress the document.
2. Unless the registration was made within a very limited amount of time and prior to the act of infringement, the creator/author can only sue for actual damages or profits. Which in the case of a freely downloaded document being passed between end users, amounts to probably nothing.
I'm not even going to get into the exceptions to copyright which the law grants to libraries and other forms of archival activities, because those are nowhere near settled in the case of electronic files and electronic lending. History shows that there's a chance of those being settled in the favor of the library/archive over authors, but we are possibly decades away from rulings on those. And nobody knows how technology will change in the meantime.
So, back to fandom, orphaned works, deleted works.
Recognize that before you publish (defined above), in return for your implicit copyright on your work, YOU ARE giving up something important. You are giving up the ability to make those words forever vanish from the face of the world. If some crazy real life library decided to start downloading, printing, and lending your fan fiction, that would be perfectly within their realm of rights and you couldn't make them stop even if you deleted the online version of your story. That paper copy would then exist as long as it existed.
If some academic downloads and quotes your story with your name attached in a modern day analysis of the crazy world of fandom, that is perfectly within his or her rights. If I back up my archive to CD and my great-great-great (however many greats) grandchild gives that CD to a publisher in 200 years, it doesn't matter whether your story was removed after the backup was burned. It's in the public domain, because you published it.
If that realization makes you not want to write or publish fan fiction--don't write or publish fan fiction.
Publication, whether you publish online or in print, is publication. When you publish, copyright applies. Yet copyright is about more than the rights granted to the author.
In the US, the Constitutional Clause which even permits copyright to exist is:To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
And in the 1976 revamp of US Copyright law, publication is defined as:"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.
(bolding mine)
Until the 1970s, copyright itself required that you place the document on deposit with the Library of Congress, so that the document would continue to exist beyond the limits of copyright, to eventually be entered into the public domain. Even if you chose to withdraw the document from publication, it still existed and still would eventually be a part of the public domain.
(Edited, 4/20/2011: the above is wrong, prior to the 1970s, notice was required for copyright but not registration and deposit. Although from what I have found, registration and deposit was still required for doing much of anything about infringements, as it is today: http://www.copyright.gov/fls/fl109.html).
Nowadays--while that requirement has been lifted--if you do not register your copyright, your ability to do anything when your copyright is violated is still limited, in particular ways which deeply affect copyright infringements of free publications.
- Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
- If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
Also, once you've published, you have started the countdown to the document eventually being a part of the public domain. That is the flip side of copyright--you are granted copyright on your published document in return for it eventually NOT being under copyright and freely available to the public without restriction.
So, I am starting from this basis.
1. Under US copyright law, posting a fan fiction story publicly to a service which allows distribution to other fans constitutes publication as defined.
2. Thus, all aspects of copyright law and case law apply, both the author's rights to restrict future new distribution and the rights which copyright/case law has granted over time to the end user's ownership of their personal copy of that document.
Over the past year, I've gotten into another online community which also deeply struggles with the reality of copyright on electronic files, and what it means legally. In the case of this particular community, there are not quite the gray areas which we sometimes associate with copyright on fan fiction. In fact, what copyright allows to the creator and end user have been fought through the courts over the past century and there is case law which is directly applicable to the community. And to my surprise, the way the rights permitted to the end user have been interpreted and are implemented are far more liberal than you'd expect.
For example, there are free documents available for download (there are also documents available for purchase). When I chose to "download" a freely-offered file on the major site for this community (over a million users), I can either select to download that file to my computer, or save it into my electronic library on the site.
Should the author of that free document chose to remove it from the site and I've "downloaded" it only into my electronic library on the site, it is still available to me. In the way that copyright law has been interpreted here, I now own a particular copy of that document whether I downloaded it to my computer desktop or only to my electronic space on the site.
For years, I've played with an evolving design for a new fan fiction archive, and this idea was certainly something that never occurred to me. Once a reader saves a file into their own electronic bookshelf, they forever own a particular copy of that file--whether they've downloaded it to their physical computer or not. The fan fiction community would explode. But it is a legally valid interpretation of how copyright functions in combination with electronic bits.
It still would be a violation of copyright for me to then take my copy of that file and e-mail it to another person. Unless of course, I did that AND deleted my personal copy of the file. But the other person, once they finished with the file, could e-mail it back to me.
Then we get into the murkier rights about copyright and time-shifting/use-shifting which are still being fought. In essence, as long as I do not USE my copy of that file while the other person has "borrowed" it from me, is it a violation under the spirit of copyright and the understandings granted by case law? So if the electronic site set up a "lending" relationship between users which allowed a user to "lend" the file for a limited amount of time and locked the file for the original user during that period, would that be legal? In my understanding, yes.
Beyond that, we get into the reality of what the original author of the document can actually do once their copyright has been violated:
1. If a creator/author really wants to take this to court, they must register their document and put it on deposit with the Library of Congress, thus ensuring that this document has been made immortal. Which doesn't seem like a good idea if the author has intentionally tried to suppress the document.
2. Unless the registration was made within a very limited amount of time and prior to the act of infringement, the creator/author can only sue for actual damages or profits. Which in the case of a freely downloaded document being passed between end users, amounts to probably nothing.
I'm not even going to get into the exceptions to copyright which the law grants to libraries and other forms of archival activities, because those are nowhere near settled in the case of electronic files and electronic lending. History shows that there's a chance of those being settled in the favor of the library/archive over authors, but we are possibly decades away from rulings on those. And nobody knows how technology will change in the meantime.
So, back to fandom, orphaned works, deleted works.
Recognize that before you publish (defined above), in return for your implicit copyright on your work, YOU ARE giving up something important. You are giving up the ability to make those words forever vanish from the face of the world. If some crazy real life library decided to start downloading, printing, and lending your fan fiction, that would be perfectly within their realm of rights and you couldn't make them stop even if you deleted the online version of your story. That paper copy would then exist as long as it existed.
If some academic downloads and quotes your story with your name attached in a modern day analysis of the crazy world of fandom, that is perfectly within his or her rights. If I back up my archive to CD and my great-great-great (however many greats) grandchild gives that CD to a publisher in 200 years, it doesn't matter whether your story was removed after the backup was burned. It's in the public domain, because you published it.
If that realization makes you not want to write or publish fan fiction--don't write or publish fan fiction.