For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Monday, 4 July 2011

When the e-Reader Suppresses the Right to Read


Tom Friedman of The New York Times is the champion of the notion that, as a result of globalization, "the world is flat". The e-reader platform world, when one folds in the territorial nature of copyright, is a lot more mountainous than Friedman's view would admit, at least with respect to the Nook Color e-reader by Barnes & Noble. What in the world is this Kat grousing about? Read on.

Back in May, I took the plunge and ordered online the Nook Color device. Here it was, it seemed, the perfect functionality for me. An E-book reader, with colour to boot and some limited interactive features, offering more than the simple e-reader without the need to purchase a full-fledged tablet (being only half the price of the entry level iPad). After all, I have a particular interest in magazines and a daily newspaper or two, and I eagerly looked forward to to devouring these contents, downloaded daily onto the Nook Color platform, as well as the standard fare of online books.

So I ordered the device and had it sent to my daughter's residence in the San Francisco Bay Area, all the better to pick up after the INTA meeting there. Mission accomplished and Nook Color firmly in hand, I set out to register the device. But then I was told. Because of "copyright restrictions" (no further explanation), the device will not work outside of the U.S., with the result that content owners are not able to download contents to a non-U.S. IP address (actually, it took me six long-distance calls to the Barnes & Noble call center to distill down this position, based on six distinct explanations of my problem, but I will spare readers the frustrations of trying to reconcile these various calls). The world may be flat, but as far as copyright contents on this e-reader is concerned, access still seems to be the hand-maiden of that most basic of copyright law principles--copyright is territorial. So--for the non-U.S. territory in which I live, and the non-U.S. IP address that I use, access to copyrighted contents via the Nook Color delivery platform seems to be off-limits.

For the first time, I began to understood the negative implications of the territoriality notion of copyright. All right, from time to time, I have encountered a book in English that was available in the U.K. but not in the U.S., or vice versa. But I had never encountered the prospect that I would be blocked generally from access to all content intended for a reading and storage platform, solely due to the accident of geography as to where I happen to live.

Without sounding overly melodramatic, there is a truly frightening challenge to the very notion of literacy here. On the one hand we hear that, in the month of April 2011, more books were sold for use on e-readers than in tangible form. That speaks about the potential of the e-book platform to make contents available at the touch of an on-line instruction. But on the other hand, I am being blocked from access to these contents, because I do not have a U.S. IP address.

Based on this scenario and projected out in time, one can conceive of a dystopian situation where no tangible books are longer being produced, but access to contents via an e-reader is limited to specified geographic areas. Professor Julie Cohen once warned us about "a right to read anonymously" in an online world where distribution and reproduction converge, here. But in the scenario that I describe, the issue is not a right to read anonymously, but the right to read to all.

There is a rough historical precedent to this dystopian prospect, namely the right to translations under the Berne Convention. There, the so-called developing world expressed the concern that the exercise of the right to prevent the translation of a copyright work could have the affect of preventing access to such content unless the readers understood the work in its original language. The Berne Convention, as I recall, carved out an exception to remedy the problem.

And what about my problem--a Nook Color e-reader for which the exercise of copyright seems to prevent access to contents based on one's locale under the territoriality principle of copyright, a distribution platform that in effect limits rather than expands? But maybe I should be thankful for small favours: after two more weeks of multiple phone calls to the service center ("you can always sell it on e-Bay"), I managed to arrange a return of the reader for what is supposed to be a full refund.

More on "The World is Flat" here.

17 comments:

Gentoo said...

I found your post quite curious.

I could say "welcome to my world" in which Free Software and/or organisations such as the Open Rights Group rail against the way IP has been used, e.g., yes you can buy a Region 1 DVD in the UK but find it increasingly difficult to find a consumer player to watch it on.

As a consumer rather than a lawyer you discover its not about IP "piracy" but rather about control and dystopia. (sic)

But I thought this world was the one that provided a living for IP lawyers.Well there you go. Words such as reaping and sowing spring to mind.

Latha R Nair said...

Neil - a very enjoyable post - indeed well-written as usual! your knowledge of copyright law and its history is amazing...

-Latha

Roufousse T. Fairfly said...

Neil,

Just out of curiosity... As an IP specialist, did you bother reading whatever legalese that was packaged together with the stuff? What did it say, besides the usual product warnings that the product couldn't be eaten, nor could it function as a lifebuoy?

There were stories in the press around the time of introduction of these products about booksellers being able to remotely delete content on the reader without the user's consent. This was discovered when there the owner of the publishing rights for 1984 (of all books!!!) objected to the distribution of Orwell's work on telescreens, er, sorry, e-books reader.

This immediately made e-books something of a no-no for me. How about further trade in titles? Can you acquire an e-book from a second-hand bookstore? Will the e-book "die" if the reader gets destroyed or lost? Could you borrow an e-book from a library? From what I saw up to now, I'd be somewhat surprised if it were the case, even though I haven't investigated the issue.

Japser said...

You could perhaps try to download the books via a US proxy server...

My company's server is based in another country, through which most of my IP traffic is routed.

So I get most of my on-line advertisement in that specific language. It does not fool Google's location based services, though.

Anonymous said...

What's new? Well, nothing for anyone who ever tried to get access to some BBC website content, such as the BBC iPlayer or a preview of TV programmes, from the nearby "Continent".

What you frequently get is a "Not available in your area". I was told by the BBC that this is for copyright reasons - it seems even in respect of programmes in which the BBC (presumably) owns the copyright.

Thus, copyright is the excuse for splitting up the "common market" into independent little fiefdoms. Can this possibly be compatible with the general prohibition on dividing up the European market?


Maybe even more worrying is what I just read in the NY Times. It seems that instead of carrying a flight bag with about 40lbs of paper, a growing number of pilots are carrying a 1.5lbs iPad for pre-flight planning, etc.

Is the following a glimpse of the near future: "Sorry Captain, but the approach charts for this airport are copyright and not available on your device ..." ????

Anonymous said...

Neil - perhaps a slightly less paranoid explanation is that as a new product the makers of Nook have not yet concluded negotiations for licencing outside the US, but have every intention of doing so? Was it being marketed in your country? If not, perhaps that was a clue?

Plenty of other ebook readers around you could have chosen in the meantime.

Anonymous said...

Bought som dvds from Amazon.com without warnings that you cannot "use" them in Sweden. Is this a rip-off or a scam?

Anonymous said...

A significant proportion of the BBC's programs [radio at least] is now made by independent producers who retain the copyright.

Copyright issues have impeded the ability of the BBC to release copies of their archive material: I seem to recall that circa 1990 the BBC ran foul of the estate of the late Alexis Korner when they released a recording of some of his radio broadcasts. The original contract had only provided for two transmissions and the retention of a single tape recording for their archive.

Ron said...

A few years ago a TV servicing engineer was complaining that one company only supplied its [expensive] service manuals on date-encoded DVDs that could not be read after 5 years.

Anonymous said...

"I was told by the BBC that this is for copyright reasons - it seems even in respect of programmes in which the BBC (presumably) owns the copyright."

It may be news to you, but the BBC actively commercialises its made-for-the-UK programs outside the UK, in order to supplement its TV license revenues.

In that context, there is little chance of US, Continental and elsewhere-based content providers paying royalties for media content (under its copyright(s) via the Berne Convention), if these be made freely available to their national audience over the Internet via, say, iPlayer.

As with all things in life, ask yourself FIRST who profits from the crime. The answers come easy after that.

After that, provided of course that you pay your dues to the relevant publishing organisation one way or the other for the sake of equity, there are plenty of websites providing the same solution for overcoming abusive e-newspaper, e-magazine and e-book localisation policies ;)

Anonymous said...

While the business rationale for these geographic limitations based on copyright does make sense, perhaps they should apply the same to advertising.
Plenty of websites will show me adverts for products/services that I am not allowed to use buy/use in my location. Why?

Anonymous said...

Re anonymous 5:03, some of the blame for restrictions in ordering goods from the USA can be laid on the US anti-terrorism acts. I have an engineering hardware catalogue from 1993 for a company that proclaimed "Serving worldwide for over 90 years", with a special export department and the facility for ordering in at least 9 different laguages, including Arabic, Chinese, Japanese and Korean. On trying to order something from their on-line catalogue last year I was told that they now only export goods to a limited number of long-established customers: the bureaucracy in processing export orders just isn't worth the effort. I didn't want anything of military significance, just some ordinary nuts and bolts with American threads that are now hard to come by in Europe. I had to get a friend in the US to buy them and send them to me.

Anonymous said...

I am amazed at your surprise.

PAUL MAGRATH, Development Editor said...

I had a different but related problem: ebook format wars. Bought two ebooks off Waterstones online only to find -- silly me -- that they wouldnt play on my ipad. Should have read the small print that - er - wasnt actually there on the relevant page. Thankfully I can report that they refunded my cash. I could have read the books on my PC but that is not why I bought a tablet reading device. Why cant I buy the same book from iBook store? Copyright? Or just a stupid turf war. Maybe they're the same thing.

Mac said...

At the risk of invoking Godwin's law, this curiosity was used by Hitler to great advantage.

Basically there were two versions of Mein Kampf - the German edition and the official translation into English.

When people outside of Germany wanted to understand the issues involving this new player in European politics they would read 'Mein Kampf' to learn about it.

However the official English translation of Mein Kampf conveniently omitted many parts of his philosophy which outsiders might find objectionable.

To get around this a group in the USA did their own unofficial translation to show what a risk Hitler was - but was ordered by a US court to destroy all of their illegal translations .. because they had broken copyright by making an unauthorised translation, when one was already available.

Carolyn said...

Although the Nook is not yet an international device (unlike the Kindle which is available in the UK) the root of the problem lies, in the main, elsewhere.

Most of the issue you're running into has to do with the rights the publisher licensed from the author, further complicated by contractual issues between US and international divisions of the Big 6.

To illustrate: Suppose as an author I sell a book to one of the (US) Big 6 (which, in fact, I have done). My publisher MIGHT buy World Rights, in which case the author would expect that book to be available anywhere in the world (in English). The publisher would separately sell foreign rights (translations).

But if the Publisher only acquires North American rights (which typically, but not always) include Canada and the UK, then an English speaking person in Germany can't buy the book in English because the publisher does not have the rights to sell there.

It gets even messier. There is at least one of the Big 6 who, despite acquiring World Rights, cannot, for internal reasons, sell digitally outside the US.

So it's a multi-layered problem that lies in copyrights AND in contract law.

My expectation is that authors, who, believe me, hear from English readers outside the US all the time, will pressure publishers to abandon the idea of geo-restrictions. Or else they will refuse to license World Rights and DIY. It's possible, but unlikely, that authors can (successfully) refuse to license digital rights when they sell to one of the Big 6.

I also expect publishers to, eventually, come to grips with the fact the geo-restrictions (to conflate the two issues for a bit) are costing them sales of about 30% of their US sales and that number will only increase.

My suggestion is that you buy an iPad or Kindle, get yourself a copy of Calibre and visit DearAuthor.com to learn about side-loading books etc.

Francisco said...

I grew up in Tucuman, north western Argentina. I am now 31 and live in Buenos Aires.

When I was a kid the only way to play the videogame "Monkey Island" was with a pirate copy because you couldn't find a legal one. If you wanted to wathch a foreign tv program or movie you had to wait months; the same used to happen with books.

Now you have steam for videogames; netflix is coming to Latin America and today I turned on my smartphone and I started reading "A Dance with Dragons" which was released today and I preordered months ago.

Its not a perfect world but I have to disagree with you.

I take this opportunity to tell you how much I enjoy blog. Keep up the good work.

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