Wednesday, June 24, 2015

What counts as "published"?


Honestly I'm super-busy today so I hereby promise myself I will not spend more than ten minutes on this blog post. I will time myself.

What counts as "published"?

Well, obviously, you decide!

The law has to decide sometimes too. What does the real law say?

Well, something I just Googled in thirty seconds, without properly checking it out, suggests that the legal definition of publication in the USA is:
“the distribution of copies [...] of a work to the public by sale or other transfer of ownership, or by rental lease, or lending. The offering to distribute copies [...] to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not itself constitute publication.”

Hmm, so does that cover when you post something on a blog? Is that a "transfer of ownership" etc. which counts as published, or is it merely a "public performance"? Well, I'm assuming it does count, because the file that is downloaded onto your computer is a transfer of ownership. Ownership of the digital file, not of the rights in the work, is what matters here. That makes good sense: I couldn't get a court order for you to delete a file you've saved from All That Is Solid Melts Into Aaargh! just because I wrote the words that are in it! (But if anyone knows better, please tell me about it).

Courts can be expected to navigate through any murky territory by making regular reference to competition. If something has been maybe-published, and the courts were trying to figure out "well heck has it been published or not?" they'll usually pay attention to whether the maybe-publication hurts the commercial opportunities enjoyed by the definite-publication. If the work in question had appeared in a different version, for example, the law on originality and materiality (labour and skill or judgement etc.) might come into play.

So much for the law. But what really interests me here is the extra-legal definitions of "published" we make up -- or could make up -- for our own uses, informed by the sense that "the public" and "the market" are not self-evident incontestable realities.

That is, I'm interested in the definitions of "published" we could make up when we fully realize that we can make them up.

In making up our own definitions of "published," we should be striving to keep focused on the nitty-gritty deets of why publishing things is valuable and worthwhile -- who actually edited or proofed or typeset it, who actually read how many pages, how do they actually feel, what do they actually learn or think or forget or write or say or do as a result, and how do you actually feel about whatever it is you've done with those words? -- and of course, how much you actually get paid for it, what you can actually put on your CV or whatever? We shouldn't be thinking of publication as crossing a magic line (not to buy into the expression "of publishable quality").

From time to time you get that in writers' groups and workshops: "Oh, you're a writer. Are you published?" I understand the impulse to get a better sense of how writing fits into a person's life, but it does seem to pose the question in a misleading way. (Maybe "how do you publish?" would be better? Not sure!)

Let me take a step back. Here is a pretty intuitive pair of individually sufficient conditions for "publication," which I think a lot of magazines and sites use:
(1) If there was ever a time when "anyone" could buy access, then it's been published. Cf. Kickstarter and, especially, Patreon.
(2) If there was ever a time when "anyone" could see it -- if you've put it up on your blog -- then it's been published.
So if either of those things have happened, you could say, you've totally published.

The scare quotes are because, obviously, the "anyone" isn't really "anyone alive on the planet," it's a much more narrow "anyone": shaped by literacy, digital divide, leisure time, disposable income, languages spoken, etc.

These two criteria might be important, for example, in the relationship between a magazine or a podcast and an author, if the former were trying to figure out whether to pay for first rights or reprint rights. I think using these criteria is perfectly okay, if a bit stern. In fact, I think being a bit stern with a threatening and quite possibly ultimately destructive unbundler / disintermediator like Patreon is a sensible thing to do. (Although there may be more weird & creative approaches to dealing with it too. Idk, stuff like this).

But here's a list of questions / counterexamples, which draw those two criteria into question.

I'm not posing them as some kind of attempted take-down or weird sea-lioning or whatever -- just, hopefully, bringing out the ways in which those criteria are deliberate constructs, based practical working hypotheses, with particular rationales and particular effects -- and so bringing out ways in which they could be constructed differently, if we felt like it, or could see some use in doing so.

(1) What about people who have done open calls for beta readers, e.g. on Twitter? "Anyone" could see such a call, and have been e-mailed a copy. So it perhaps meets one of those two criteria, but it doesn't "feel" published, does it?

(2) What about authors who maintain a regular pool of beta readers, e.g. on LiveJournal? Or is really prolific with review copies?

(3) What if you publish it on your blog, but your blog's private? What if it's private, but with hundreds or thousands of subscribers -- what if it gets more hits than the webzine you're submitting it to? The webzine probably won't count it as published, but it does feel published to me.

(4) What makes the difference between a private blog or e-mail list, and an online forum which requires you to register as a member? What if the forum has certain membership requirements, does it still count as published? What if they're really strict -- say it's just for members of your class -- does it count then?

(5) If the difference between "privately circulated" and "publicly available" doesn't come down to the number of readers, perhaps it comes down to the author/publisher's theoretical ability to approve access on a case-by-case basis. So what if your blog's private but you'll invite anyone who goes to the trouble of e-mailing you ("aha! the bouncer was a scarecrow!")? In fact, what if you make it a solemn oath that you will invite anyone who asks? Is it fair to say that whatever is on there is now "published"? Or what if you make a big fuss about your right to exclude somebody who looks dodgy, but in practice have never exercised it? In those cases, should the texts count as published? What if you just e-mailed it to yourself, but told everyone the password?

(6) Then there are the silly Sorites paradox-style thought experiments. What about a post that was live for one second, then deleted? What about two seconds? How many seconds is "published"?

(7) What if "anyone" could buy it, or "anyone" could see it, but your analytics tell you nobody did? Or what if hardly anybody did? What if  the number of people who saw it mean its reach is comparable to something that had been circulated in a crit group, or among beta readers? (If I were an editor, and I trusted an author who told me this, I'd be very inclined to treat their work as unpublished! But I am not an editor, and I do not trust anyone, and my heart does not beat but hisses).

(8) And/or should barter, gift economy, reciprocity, non-standard currencies be treated any differently? What if there was a huge forum, a bit like a social media site for writers, where your activity got rewarded by virtual points (compare e.g. Patreon Good) -- would "transactions" denominated in WriterCoin count as money changing hands?

(9) Is the point that it's been published if people you don't know have had a look at it? Who you know and who you don't is a funny old thing, especially online. If you have a Patreon and only a few supporters, and you and they are active on your Patreon page, they may well become more like a crit group / friends. In fact they may eventually understand you better than anyone including maybe your dog? Shouldn't we differentiate between a Patreon which has a rich little community like this, and a Patreon which is operating much more like a small market? (Cf. Polanyi, disembedding etc.).

Okay! Yeah!

(PS: So the next fun thing to do might be to make up some more exotic rights and licensing arrangements. For instance, a publication could decide that it pays "Signal Boost Rights Rates" for some fiction which it really just wants to get out there: the deal with those could be, you automatically license reprint rights to anyone else who pays the same Signal Boost Rights Rates to the author as you did. It would be a way for publications to tacitly compete with each other on some stories, while tacitly collaborating with each other to signal boost others. That's kind of how the press operates: sometimes it's about an exclusive, but sometimes it's about getting a political agenda out there, and you want your competitors running the same story. Here's another one: a publication could purchase "You Get Going We'll Catch You Up Rights," which actually requires that the author to have sold a certain number of copies within a specific timeframe -- not too many and not too few, just enough to prove to the editors that the story has some traction. (Compare how translation rights tend to work now). But those are just two small and not very great ideas. Earlier I argued that the Hugo Awards voting system itself should be fantastical and/or science fictional, because why not? And the same could be done for rights. So the next fun thing to do might be to make up even a quasi-mathematical Total Possible Publication Rights Space. Now we're talking).

(PPS: One of the reasons I'm interested in that is because I've been involved in micropress poetry publishing for a few years, and I know that: (a) printing out 1600 A4 pages, folding 100 pamphlets & "binding" them with a long-armed stapler, and giving them to your friends, can be a major literary event whose reverberations permanently remake the literary landscape; (b) or you can sell 200 books and not a single one of your readers will read more than a few sentences, plus they'll hide the fact from you; (c) you can put a lot of time and effort into editing e.g. a digital magazine and never know what, if any, difference your curation has made, compared to if the contributors had simply posted their poems on their own blogs; (d) aaaand fwiw I don't always feel convinced by the distinctions usually offered between self-publishing, indie publishing, vanity publishing, boutique publishing, etc.; & (e) aaaaaand come to think of it, back in the SFF world, it all feels a bit relevant to Jonathan McCalmont's BSFA-nominated (including by me!) moan last year about the publication ecology of short SFF fiction. But maybe that's all by the by).

(PPPS: Here's Neil Clarke laying out some clear guidelines about what Clarkesworld considers counts as publication).

Yeah! Aargh!

Twenty-one twenty-four thirty-two thirty-six minutes. Not bad. Kind of bad.

No comments:

Post a Comment