Proposed treaty may affect those who publish on the Web

[elementalv]

I’m annoyed by the title of this post, given that the OP specifically references fanfiction (where writers have no copyright protection to speak of - see below for my comments on that), but the content is solid and relevant to anyone who posts anything that isn’t fanfiction on the Web (including LJ). The Electronic Frontier Foundation (EFF) is

Comments

[secondsilk]

I'm sure that in the case of originally created works there's a distinction between copyright and exclusive publishing rights.

Collections of short stories always include a list of the where each of the stories was first published. And plays always include the first cast list. I don't think it is unreasonable for originally published works to include 'first published on such-and-such a website,' especially given how much exposure people get online now.

But to have the website own the intellectual property (including the ability to sell adapting rights for money?) seems a bit ludicrous to me. People wishing to reproduce the works may have to acknowledge, and perhaps even get permission from, the website holders, but they would also have to get permission from the original creator (assuming no extra deals have been made).

[elementalv]

The whole proposal is ludicrous. I agree with your point about posting "first published" information, but realistically speaking, if a writer wants to have her original novel read by others, putting it on the Web first muddies the waters for a publishing house that might later be interested in buying it.

[tthjinni]

I saw that post last night and got irritated that the OP thought that anything involving fanfic could be copyrighted. I was like "WTF?" Some people seriously need to think about what they're doing when they write fanfic. It's a grey-area violation of copyright at best, an outright violation at worst. There's nothing about fanfic that should even TRY to be copyrighted, lest the wrath of the Copyright Holders come down upon us all. *snicker* Yes, our plots, minus the copyrighted bits, could be ours. But only if we don't infringe to begin with.

[elementalv]

Which is my point exactly. I post fanfic in full awareness of just how vulnerable I am if the copyright owner decides to get pissy about it. As far as I'm concerned, they could potentially claim their copyright extends to unlawful derivative work (i.e., fanfic), and there isn't a thing I would be willing to do to fight that claim. I didn't create the characters or worlds. At best, I could say I used them to learn how to develop plot, characterization and dialogue.

[tthjinni]

Exactly. My general game plan is, if I ever were to get a C&D notice, to apologize profusely and pull the plug on whatever fanfic(s) were getting noticed. Who the hell would try to fight for a fanfic? LoL.

[elementalv]

I think there are writers who would be willing to take that fight to court, and though I'm not one of them, I *would* like to see it happen at some point, if only to have some of the issues clarified. Personally, I think what would ultimately happen is that fanfic, which benefits from publishers who've looked the other way for years, would be given a quasi-legal standing with special consideration given to those copyright owners who absolutely DO NOT want derivative works created.

[laney_1974]

Sometimes you just have to wonder what the hell people are thinking? I would like to think that most of us believe the same as you do, that Copyright does not extend to fanfic. Seriously, it's a no brainer.

But beyond that, the potential legislation is no where near as simple as she has outlined in her post. Internet, as a jurisdiction, is an absolute headache for the law. The fact is, we don't know what real power a somewhat ambiguous legislation has until it has reached the courts (for whatever reason) and they interpret it (at least here in Australia... I don't have extensive knowlege on US or International Law). Like you mentioned below, you need a test case to truly know where you stand.

Still, I don't think it will apply strictly to Australian since treaties (even ones we sign) don't form part of Australian law.

[elementalv]

I don't know what fanfic writers are thinking, to be honest. And yes, the issue is a U.S. one, but it's one that could easily spill over if it gains any ground. I sincerely hope it doesn't.

[thecaelum]

Thank you so much for writing this. It concerns me that some fanfic writers do not seem able or willing to grasp the concepts that you have outlined in your post.

Getting territorial over something that you have worked on is understandable, but there is no legal basis or protection to back that up. These characters and their worlds are not the property of a fanfic writer, simply because we have touched them.

Fanfic writers stand on incredibly shaky legal ground. Very little of it could reasonably be argued away in a court of law as fair use or parody. The "no ownership claim, don't sue me" disclaimer on a story means nothing if the writer of that story does not honor it. If you wind up in court trying to defend a derivative writing hobby and claim that disclaimer existed only to cover your ass, that's not going to fly. You've given some really good examples as to why that wouldn't fly

[elementalv]

The disclaimer issue is a whole 'nother mess. On one hand, you want to acknowledge you're just "borrowing" the characters and world. On the other hand, if you ever end up in court, a disclaimer could be treated as an admission of guilt. [shakes head]

At any rate, as far as legal status goes, television producers and studios have been turning a blind eye toward fanfic for quite a few years now. I think Fox was the last studio to make waves (when it took aim at the X-Files fandom), and they backed off once they realized just what a behemoth fandom could be when stirred to irritation. That blind eye will be more helpful to fanfic writers than any disclaimer ever could be, because it shows tacit acceptance.

Still, fandom remains on shaky ground. It doesn't matter that Joss told everyone to write fanfic or that J.K. Rowling hasn't sued to have the Harry Potter sites taken down or that studios are getting a clue that a healthy fandom equals better ratings. Those are limited exceptions and don't carry over to every fandom out there.

[shiv5468]

I'm not sure that that is the case in all countries of the world. Someone wrote a parody of Harry Potter, which has been published, and I'm damned sure that's covered by copyright.

[elementalv]

Parody is definitely protected under US Copyright Law, and I'm fairly certain it's protected under international law as well. One of my favorite books ever is Bored of the Rings, a full-on parody of Tolkein's work.