Copyright and why it's unfair to blame the publishers

[kitsunebi]

OK, so there have been numerous discussions here and there in random threads about the right and wrong of what preservation sites like ours do.  Some people have even argued that what we do is legal (it's not), but that isn't what this thread is about.

I simply want to shine some light on why it's unfair to paint the publishers as jerks for either

(a) not making their back issues available digitally, or

(b) asking us to not make their mags available digitally.

Also, I want to show how empty and meaningless it is to claim (as some other preservation sites have done) that you have gotten permission from the publisher to release their mags.

This is an excerpt from a submissions guide for Computer Gaming World:

"First world rights" means that the publisher has the right to publish it anywhere in the world for a limited time only (usually one issue, in the case of a magazine), at which point the copyright reverts to the author.  The above excerpt is from but a single publication, sure, but as it turns out, this is how most writing for magazines is handled.  The publisher pays the author for first world rights (or First North American Serial Rights for most publications in the US or Canada) and has exclusive license to publish that material for a specified length of time.  At that point, the rights revert to the author, who then has the ability to sell that same work elsewhere if they choose, although at that point they must sell their work as a reprint, receiving much less money than they would for selling first rights.

The bottom line is, for most magazines, after the initial publication, the publisher no longer has permission to reprint the work (including digital copies), nor do they have any authority to give their blessing to us or any other preservation site.  The copyrights of any given issue are divided up amongst  the various writers who worked on it (not to mention the companies that placed the advertisements), so no single entity has the legal right to reproduce or authorize reproduction of the magazine as a whole.

 

[Areala]

This was what boned Wizards of the Coast when they released "The Dragon Magazine Archive", a CD-ROM compilation of the first 250 issues of Dragon Magazine, in 1999. Plenty of the magazine's content was either created in-house (in which case, TSR and then Wizards owned it and all the respective reprint rights), or purchased on a basis where all submissions became the property of TSR/Wizards. Their statement was printed in the masthead of the magazine as such: "All material published in THE DRAGON becomes the exclusive property of the publisher upon such publication, unless special arrangements to the contrary are made prior to publication."

So far so good...except that a great number of contributions and submissions fell under that "unless special arrangements to the contrary" clause. Dragon, especially in its early years, published a lot of short fiction, and sometimes there were big-name authors like Gardner Fox who wound up between the covers. These were first NA serial rights, and carried no additional reprint clauses. The same was true of other things, like commissioned artwork or the serial comic strips that ran in the back of the magazine. Dragon used both, multiple times, in practically every issue.

Wizards got hit with two different suits over this, one from a group of science fiction writers whose material was reprinted without permission, the other from Kenzer & Co. pertaining to the reprinting of a number of "Knights of the Dinner Table" comics that ran in the final dozen issues compiled in the archive. The associated legal hassles, along with a similar case that dragged out for seven years involving National Geographic's decision to publish their archives electronically and a photographer who sued over re-use rights, ensured the archive went out of print very quickly, was never coming back, and that we'd never see anything of the sort tried for TSR's sister publication, "Dungeon".

It sucks, but it is what it is.

*huggles*
Areala

[E-Day]

Perhaps this is why Future has not come knocking yet?

[KiwiArcader]

I believe this is the reason why Imagine Publishing released their original digital issues of Retro Gamer, Games tm with placeholder images for the advertising material. There was some discussion of their forums regarding the fact that the advertising was a single print agreement with the advertisers advising on a per issue basis regarding ads they wanted to run across multiple issues. 

However, they must have changed their agreements as the digital issues released on iTunes etc and within the Readr app all contain the advertising material. That or they have taken legal advice which has altered the scenario around ownership rights. I'm guessing but maybe the release of digital copies of issues comes under the "back issues" scenario? In which case a digital issue is no different than providing a print copy? Dunno, but something has changed to the point where they and Future are releasing full monty issues rather than cut down versions like the old Xbox Official content only releases.

[kitsunebi]

Yes, now that digital is a viable format right from the get-go (and indeed, many mags are digital-only releases), I'm sure publishers have changed the details of their contract agreements.  Maybe one day that will affect us, but for now, I think it's safe to say that all magazines we're allowed to host here were created with periodical print media as the default distribution method, and their copyrights no doubt reflect that.