Caught In The Net

Obviously, posting your play online saves you the costs of copying and postage attendant to sending out your script to various agents, producers, and theaters throughout the country and the world. 

Also, instead of sending out queries or complete manuscripts to people who - have expressed no specific interest in your work, your play will be readily available to people who are actively searching for a play just like yours. Such a pre-selected and motivated audience is probably more likely to respond to your work. 

Further, since the Internet is a global communications network, you would be soliciting possible production opportunities all over the world. Certainly, access to your work would be more far-reaching, geographically speaking, than that provided by standard publishers. 

In addition, self-publishing allows you to retain direct control over the negotiation of licenses for productions of your play. You will, therefore, presumably owe no one a commission on such licenses (presuming you have no other publishing or agency agreements related to the play), and there will be no extensive printing and shipping costs to recover out of your royalties but only phone bills and such other minimal online expenses. 

Finally, and perhaps most importantly, you could potentially increase your visibility and reputation as a writer and make your work available to a public who may not have heard of you or who would not otherwise be moved by your words and ideas. 

Now that we’ve discussed the positives, what are the potential pitfalls? 

Computer self-publishing, like any other kind of self-publishing, would likely prevent you from obtaining a standard commercial publisher for your play in the future. Such publishers would have no incentive to expend resources on a work already so widely available; so, taking your play down this road may be a one-way street. 

Just as in standard publishing situations, you would still be dependent on the honesty of readers not to copy, distribute, or perform your work without a license. However, in this instance, an established publisher would not be distributing your script to an established theatrical community that already understands the basic norms and standards of the industry. Instead, your play would be posted, without a representative looking out for your interests,  to an entire online community who may not be as savvy, familiar with, and agreeable to the theatrical norms and producing obligations customarily owed to an author. 

In addition, it is unclear as to how an author, or any Web site where your work appears, could keep track of who is reading and downloading your play or to whom they are then sending it in turn. Therefore, you may be unable to control the copying and distribution of your work. It is also unclear how (or if) someone reading your play would pay for it, as someone buying a copy of your play from a bookstore or play publisher would do, and so royalties could be lost. 

Finally, online computer self-publishing could cost you control over not just the various revenue streams created by your play but over the very substance of the play itself. Anyone downloading your play could manipulate the text, descriptions, format, etc., distorting it for their own purposes, without your knowledge and consent, and at minimal expense. Your words could easily find themselves in someone else’s play or could end up so distorted as to make you wish your name were no longer associated with it. This could occur with print-based publishing as well; however, online publishing may so reduce the logistical and financial obstacles to such ad-hoc alterations (and lower the practical barriers to unauthorized copying, distribution, and performances of your play) that it could serve to invite such misuses in a way that print publishing simply may not. 

A discussion of the current status of copyright law and the global protection of intellectual property on the Internet would be an entire series of articles all by itself. The subject certainly requires more legal analysis than could (or should) be appropriately provided in this forum, and you would be well served by obtaining legal counsel for advice on this subject. Let us just say the current state of the law in this area is in flux. It may be possible that “publishing” your work in this manner might jeopardize certain of your copyright interests in your play, or that copyright law may not even pertain to the “transmission” of your play on the Internet. 

Federal legislation is constantly being proposed in this area. In 1995, the president’s National Information Infrastructure task force released their white paper [“Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights”], which offered various proposed amendments to The Copyright Act in an attempt to balance the competing interests existing along the “information superhighway.” It has stirred quite a bit of controversy, and it remains to be seen what legislation will result from it. 

In addition, there are also proposals being made for licensing societies, similar in structure to ASCAP and BMI, where service providers would receive royalties from blanket licenses to users and divide the royalties among the content providers (you know . . . writers). 

Also, although your copyrighted work may be protected in other countries under the Bern Convention (and the more recent World Intellectual Property Organization treaties attempting to extend international copyright protection to the Internet), you should realize that, when you publish online, you are reaching out to a global community where your copyright may have little meaning or be unenforceable. 

Other legal issues may arise from the appearance of your writing on the Internet without your approval, where you have granted publishing rights to a traditional publisher who is attempting to exploit your work in the new medium. A recent case, Tasini v. N.Y. Times held that The New York Times (and other publishers) could publish a collective work of articles from freelancers on a database-type Web site as part of their rights to publish “revisions” of collective works. Though it remains to be seen how broadly this decision will be interpreted, it should give authors pause and the incentive to narrowly draft their grants of rights to publishers in the future. 

Another contractual issue could arise where a publisher has been granted “electronic rights” and the author has retained the right to get back his play should it fall “out of print.” This reversion could be rendered meaningless where the publisher posts the play on an Internet Web site, arguably keep- ing it “in print” at little or no cost and thereby retaining all rights indefinitely.

If you are considering self-publishing your play on the Internet, you may want to explore the possibility of safeguarding your work from the kind of unauthorized uses we have discussed. For example: 

Prior to putting your play out on the Net, your first step should be to register your copyrighted work with the U.S. copyright office, which is a good idea under any circumstances. 

If you post your play on the Internet, then, at a minimum, you should attach an appropriate copyright notice to the text, along with a summary of restrictions regarding the use of the work (no copies, changes, or performances of the work without your approval, for example). You should also provide contact information so interested parties can reach you. 

Preferable to the mere posting of a copyright notice and restrictions would be a contractual relationship with each user who wanted to access your play. You may want to investigate the possibility of creating a licensing contract with the service provider or directly with each user, requiring users to make payment to access your material. Even if you are willing to forego any payment, a contract will at least give you information about the user, including the intended use of your material, and should elicit a promise not to copy, alter, or perform your play without licensing the rights from you. 

To further protect your rights, you could look into the various “secure container” encoding and tagging technologies currently available on the Internet. These systems enable you to track uses of your work, from reading and downloading to copying and distributing. It is a constantly evolving field and, for every “lock” invented, you will find someone creating a “key.” Also, these systems can be expensive and cumbersome to employ on your own. It would be worthwhile to see if a site like Dramatic Exchange or other similar access providers are employing such rights management technologies.  

As journalist Victoria Slind-Flor recently observed [“If It’s Online, Why Pay,” The National Law Journal, November 18, 1996], despite all the safeguards, unauthorized use of intellectual property on the Internet remains a real and growing problem. It comes, as she reported, from differing philosophies about the nature of information in cyberspace and the lack of normative values in the Internet community regarding intellectual property. 

Esther Dyson heads the board of directors of the Electronic Frontier Foundation and serves on a key subcommittee of the National Information Infrastructure advisory council. She is a leading proponent of the idea that “content is free” and “intellectual property that can be copied easily is likely to be copied.” The Dyson model, as it has come to be known, describes a free-flowing Internet where intellectual property protections “necessarily wither away into utter irrelevancy.” 

At the other end of the scale are the entrenched commercial industries that espouse “lockbox” technologies to keep all content under strict control. Under the NII white paper proposals, for example, the simple act of browsing and reading material online would be interpreted as a copyright infringement. 

Litigation, legislation, and “lock box’ technologies are not likely to resolve this societal conflict. What is needed is education as to the proper etiquette - or “Netiquette” - when dealing with other people’s intellectual property. The establishment of new normative values on the Internet can be the only practical solution. Until the coming of this digital utopia, however, creators of “content” need to understand the ramifications of online computer publishing and need to weigh the costs and benefits before they dive into the deep water and get “caught in the Net."