Social Reading Raises New Copyright and Publicity Rights Issues

digital-book-2015-logoThe following is paraphrased from a talk I gave at the International Digital Publishing Forum’s 2015 Digital Book Conference in Manhattan.

Recent Innovations in Social Reading

“Social reading” is a publishing industry buzzword that has come to encompass a variety of methods for using digital platforms to expand the reading experience. This includes such simple features as personal notes and highlights that one may make while reading a digital text. Many platforms collect and publish those notes in a single place for easy reference by the reader and—more often than not—by others online as well. These platforms may also aggregate comments from multiple users for various purposes, including as a basis for advertising the portions of the text that the data suggests are the most popular. In turn, knowing that the data is being collected and published subtly encourages the reader to engage more deeply with the text by recording more notes and highlights.

More collaborative sites publish comments from multiple readers on the same page and in real time, pegged to the sections of the original text being commented upon. These comments may be displayed in a split-screen format, so that a reader may engage in the text and the commentary simultaneously, side-by-side.

Other forms of social reading are variations on these themes. For example, readers often cut and paste sections of text (either manually or through a feature of the reading platform designed for that purpose) to share with friends. And the more that readers accept publishers’ invitation to invest time and energy into recording their thoughts and annotations on a text, the more value readers will place in these records, and the more they will expect a way to archive and share them—including between operating systems and devices. Teachers will also find increasing pedagogical value in being able to review, comment on, and share students’ reading notes, as well as in sharing their own materials via the same platform.

Applying Old Law to New Facts

Social reading platforms raise a host of legal questions—including but not limited to under copyright and publicity right laws—many of which do not yet have clear answers. For example, short quotes are a time-honored example of fair use, but how much of a copyrighted text can a reader share before it will be considered a copyright infringement? This type of question is not new—it was raised decades ago in a Supreme Court case over unauthorized scoops from the then-forthcoming autobiography of President Gerald Ford—but it gains new relevance in a world where any text can be shared with virtually no effort, and where many platforms encourage such sharing but give no guidance on how much is too much. The purpose of the sharing will always play a role in this analysis; the law prefers critique, news reporting, and innovation over copying that merely offers an opportunity to access a copyrighted work without paying for it.

The question also arises of who owns a reader’s notes. The answer will become increasingly important as the notes themselves gain more commercial value. By operation of copyright law, an author owns the copyright in their written expression automatically upon creating it. A formal copyright registration is helpful for many reasons, but is not necessary for ownership, and can be obtained anytime after the fact. By default, then, the readers who create notes on a text own those notes. If it is not careful, a platform designed to publish and allow the sharing of those notes could easily find itself liable for infringing the readers’ copyrights in those notes.

The right to alter (i.e., to create “derivative works of”) a text cuts both ways. Readers who are overzealous in reproducing the text upon which they are commenting could find themselves liable, not only for reproducing the work, but also for creating a derivative of it. Fan fiction sites are the most well-known example of this phenomenon. At the same time, however, publishers who take too many liberties with user-generated notes could find themselves liable for the same type of infringement. This problem may become especially pernicious on collaborative or “wiki” types of sites.

Archival is also a long-standing issue in copyright law. There is a provision of the Copyright Act that allows the archival of software under certain circumstances, and fair use case law has been generally favorable for those who copy certain works for private, archival purposes. But publishers are understandably reluctant to affirmatively enable widespread duplication of text, for fear of undercutting the market for legitimate copies. That said, if users gain rights in the text they create on a publisher’s platform, their argument for an ability to easily preserve their own expression will be a sympathetic one.

Then there are the publicity rights issues that social reading will spawn. Because the boundaries of this right are so diffuse, the legal claims will be limited only by the imaginations of enterprising attorneys. It is not unrealistic to expect that, as more users become aware of and participate in social reading platforms, the medium will generate its own celebrities, much as YouTube and other digital platforms have done. The platforms will naturally be tempted to capitalize on this fame—indeed, multiple online reading platforms already advertise such individuals—yet doing so could easily run afoul of the celebrity reviewer’s publicity rights. Even automated processes for connecting readers with reviews they may enjoy could, in theory, implicate reviewers’ publicity rights in much the same manner as Sponsored Stories were alleged to have done.

Social reading may also implicate the publicity rights of the authors whose works are being reviewed and commented on. Many authors have already discovered the power of social media and other digital platforms for creating a name and following for themselves that distinguishes them from the hordes of other published authors. That cult of personality can create commercial value—and, therefore, stronger publicity rights—that the author might not have otherwise possessed, and the digital environment inevitably creates more ways to associate that author’s identity with people or causes of which the author does not approve.

Of course, almost all of these potential worries share a simple, common solution: a contract. Both copyrights and publicity rights, among other legal rights, can be waived or licensed away, if their owner does so knowingly and in exchange for some form of consideration. Virtually all online platforms already require their users to agree to certain terms of use, and almost all of these are drafted in broad terms that favor the platform’s interests over those of the users.

That said, the danger lies in complacency. Once a platform has published its terms of use, it can be tempting to treat all potential legal liability surrounding use of the site as being “solved.” In reality, however, many such terms of use were borrowed from existing precedents without much thought, or have not been revisited in light of more recent legal and technological developments. In addition, the breakneck pace of the startup economy often ignores even such simple steps as these, focusing instead on implementing a business model before someone else does.

Whatever the circumstance, it is always a good idea to give focused time and thought to anticipating and proactively preempting as many potential legal liabilities as possible—especially those that are as inevitable as copyright and publicity rights infringement claims within the digital publishing industry.