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.

Published in 2016, Enchanting the Desert presents a scholarly, multimodal, web-based argument that includes text essays, original and digitally reproduced images, and maps all interacting via custom Javascript and design elements. By most basic definitions, including that expressed by the United States Copyright Office, it’s a website with one distinguishing factor—it’s published by a university press. As such an organization, we’re used to registering everything we produce for copyright, and these new digital works, with their distinct contribution to scholarly discussion, should be, in terms of unique expression, no exception. But because they take the form of websites (again, a very basic designation), they sit outside of the purview of “copyrightable work.”

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.

To complicate matters, the rules for submitting electronic files put the format out of sync with the content type. For instance, they would not accept HTML nor any of the site files themselves—they wanted what appeared on the screen as the content. And although the Javascript code was needed to register the program component, they would not accept JS files. The requirements were for the first twenty-five and last twenty-five pages of code in TXT, DOC, or PDF format. At one point the office asked that we submit the entire site as a PDF, and indeed the circular also explains that “[c]urrently, PDF format is the preferred means for submitting deposits of websites and website content.”

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.