Adventures in Copyrighting Web Content
As the digital production associate, I’ve been working with the Press’s rights and permissions manager on a weirdly intense aspect of the publishing workflow: copyright. A week ago we reached what I didn’t necessarily expect to be a significant milestone. After a process that began in August 2016, the first interactive scholarly work published under our grant is now registered with the U.S. Copyright Office. Because the type of work we’re publishing isn’t typical fare for the agency, it took some trial and error on my part before I zeroed in on the right balance between what we wanted to protect and what types of content and formats the office would accept.
According to the United States Copyright Office’s Circular 66, “Although a website may contain text, artwork, photographs, music, videos, or other copyrightable content, the website itself is not typically considered a copyrightable work.” The circular contains many other circular proclamations, many of which contradict each other as well as themselves. It’s definitely worth a read for anyone creating web-based scholarly or creative work though you might need a stiff drink or a gramme of “soma, delicious soma” to get through it without screaming frustration into the vacuum of the universe.
So our first order of business was establishing what Enchanting the Desert’s “content” was. Clearly, the project contains a cohesive and substantial argument in the form of text. But part of what makes it a project we wanted to publish is that it couldn’t function fully as an argument by text alone. If it could, it could be a book. So I needed to capture not just the text but also the images and image layers that help drive the argument. Second, we needed to include the custom code that operates the interface. The interface is itself key to conveying the argument as it presents the relationship between the many pieces that contribute to that argument. This meant registering both the content and the “program” as part of the work. And since the copyright office views these as two distinct copyrightable pieces, it wanted just one file for each component.
This might almost work if the site were simply constituted by static HTML pages and we could convert each page into a PDF and combine them. But this site isn’t that simple. It holds thousands of potential states where various content appears in panes in combination with other panes of possible content. Even if we could capture and convert each of those states, it would still appear as a linear page-separated document in which the linearity and the page breaks would impose a different reading experience than that of the actual site.
Once I understood that I would be required to change the format of the contents in order to submit it, I realized I needed to be creative yet careful in order to get the project protected at the same level our books are while I meanwhile advocate and wait for the copywriting system to catch up.
After attempting multiple submissions of various kinds of files and arrangement of content (I might have been testing the waters a little), we were successful. The copyright office now holds two PDFs—one for content and one for program, a severing that is sadly in complete opposition to the principle and logic of the work. But until other publishers begin facing similar challenges, the wait for improvement will likely be a very long one. In the meantime, though, I have a baseline for taking future projects through this process. Although each one will be different and will require a customized approach, the experience of the first helps establish a manageable workflow for the rest.