eBooks: Literary work or software?

The case of a Norwegian Kindle owner who had her entire eBook library wiped after breaching Amazon’s terms of service has certainly raised a number of issues when it comes to eBooks. Questions over who owns an eBook, restrictions that are placed on readers’ use of eBooks and the legal definition of an eBook are all very important issues that many readers are not aware of.

The first big issue is ownership. You do not technically own an eBook. What you are purchasing when you buy an eBook is a license to read the eBook file. A license that can be revoked. Amazon famously removed George Orwell’s 1984 (yes the irony) from everybody’s Kindles after they discovered they didn’t have the rights to sell the eBook. People woke up one morning and it was gone from their library. This is very easy for the likes of Amazon, Apple and Google to do because as they force their customers to store eBook purchases in their walled garden or cloud through their devices and apps. Retailers like Kobo and ReadCloud make it easier for their customers to download eBook files to their home computer so the customer can keep a back up copy of the digital file on their own closed system.

There are also many restrictions placed on eBook files through the use of Digital Rights Management or DRM. Most eBook files limit the use of an eBook to a maximum of 6 devices which limits a reader’s ability to not only share an eBook with a friend but also immediate family members. DRM is meant to prevent piracy, it doesn’t. DRM punishes readers who are doing the right thing because DRM only has to cracked by one person in the world before it can be shared with thousands if not millions .DRM also allows Amazon and Apple to lock out competition. Kindle owners can only ever buy from Kindle. Every other retailer in the world uses ePub as the standard eBook format. Amazon’s Kindle uses their own format and thanks to DRM ePub files cannot be converted to the Kindle format (and vice versa). Amazon and their Kindle device are by their very design anti-competitive and restrict readers freedom of choice. At least with Apple’s devices you can use reading apps other than iBooks but it is still restrictive.

If publishers and government bodies like the ACCC or Department of Justice in the US were really serious about maintaining a competitive environment for consumers they would take a serious look at what is going on in the eBook world. Publishers like Tor in the US and Momentum in Australia no longer use DRM which is a really great move but more needs to be done otherwise their will be a monopoly in the eBook market because readers will literally be locked into one retailer only.

But there are legal significances over whether eBooks are literary works or just software. Copyright is applied differently to different works whether that be music, film, books or software. The importing of copyrighted material in particular is applied differently depending on the content’s classification.

  • Music: Australia is an open market so retailers can import copyrighted music from overseas suppliers.
  • DVD: Australia is a closed market and it is illegal for any retailer to import and resell a DVD from overseas.
  • Computer Software: Importing computer software is not considered an infringement of copyright if the originating copyright holder gives permission. Legitimate downloading of software from overseas isn’t considered parallel importation.
  • Books: sit in the middle ground where retailers have a 30/90 day rule (there is currently a voluntary 14/14 day rule) which allows for some importing. A book must be released in Australia within 30 (sic 14) days of overseas publication or cannot be out of stock for over 90 (sic 14) days otherwise a retailer is legally allowed to import copies.

The definition of eBooks within the Copyright Act therefore becomes critical. An eBook can be made available within seconds of overseas publication and also never run out of stock. If eBooks were defined as a book in the Copyright Act, Australia would essentially become a closed book market because Territorial Copyright could be easily established for all books and any imports would therefore be illegal. However if eBooks were defined as software there would be no restrictions, except of course for geo-blocking and DRM…

But the fact that you do not own an eBook also needs to be factored in. If you are only purchasing a license to read a file then are you purchasing a book or software. Where this leaves the eBook in regards to the Copyright Act I do not know. [free legal advice welcomed in the comments]

I think there is a significant difference between a printed book and an eBook. Whilst the act of using both doesn’t differ greatly the fact that a reader doesn’t own the eBook file and is restricted in their use of the eBook file is a critical difference. Once again it is clearly evident that the Copyright Act as it applies to books in Australia is woefully out of date. The book industry has had to adopt its own voluntary “Speed To Market” policy to update the 30/90 day rule to 14/14 days as the Government was unwilling to do so. The eBook needs to be clearly defined as either software or literary work and the implications of that definition worked out in order to ensure that copyright is protected, readers’ access to books is unhindered and a viable book industry for Australian publishers and booksellers is assured.

3 thoughts on “eBooks: Literary work or software?

  1. I have been pondering this very subject of ownership of late and how it is important to me to own my reading material. I love the immediacy of my kindle. If I find something I just have to read, it’s there at the push of a button. I did wonder at the likelihood of longevity of the device given that many readers I know similarly value books as treasured possessions. Having instant access to books through kindle or other reading devices seems to me to be somewhat akin to a paid loan of a library book without the wait. As such it will remain a secondary means of accessing my beloved reading material.

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