Swimming in Apple’s murky waters

On his blog, venomousporridge, blogger Dan Wineman reveals the audacious contract that users of Apple’s new free ebook software, iBooks Author, are required to agree to if they wish to use the software, and he argues this means Apple will have control over content made with iBooks Author. Specifically, Wiseman points to the end-user license agreement (EULA) for the iBooks Author, accessible via the app’s About box:

IMPORTANT NOTE:
If you charge a fee for any book or other work you generate using this software (a “Work”), you may only sell or distribute such Work through Apple (e.g., through the iBookstore) and such distribution will be subject to a separate agreement with Apple.

The contract goes on to specify the terms of distribution:

B. Distribution of your Work. As a condition of this License and provided you are in compliance with its terms, your Work may be distributed as follows:
(i) if your Work is provided for free (at no charge), you may distribute the Work by any available means;
(ii) if your Work is provided for a fee (including as part of any subscription-based product or service), you may only distribute the Work through Apple and such distribution is subject to the following limitations and conditions: (a) you will be required to enter into a separate written agreement with Apple (or an Apple affiliate or subsidiary) before any commercial distribution of your Work may take place; and (b) Apple may determine for any reason and in its sole discretion not to select your Work for distribution.

The problem as I see it is Apple’s use of the term “work” and “book” to mean the same thing; this is where things become murky. In copyright law, “work” is used to refer both to the content of a copyrightable creation and to the format in which it is presented. For example, a song itself (the “work”) is copyrightable and each format the song is presented in — on vinyl, on CD, as an MP3 — is deemed a separate “work” and each is protected. The owner of the song is thus entitled to the proceeds of all uses of the song, and may elect at any time to release the song in a different format so long as they haven’t signed a contract to the contrary:  for example, a musician who signs on with a record company will likely agree not to release the song in any other format such as a separate digital file for sale or download off their own website.

The importance of this distinction becomes more apparent when a work becomes public domain. A song that is public domain is no longer copyrighted but if a record label were to put that song on a compilation album, the compilation is a new work and is protected by copyright.

In book publishing the same distinctions apply, and thus in book publishing one distinguishes between a “title” or  “work” (the content) and a “book” (the format).  Alice in Wonderland is a public domain title but when one republishes the title with a new cover and interior layout, this new book becomes a new work: the combination of the book’s specific cover and interior format is what is now copyrighted but the content remains public domain.

(This distinction also affect authors who sign on with a vanity publisher or ebook aggregator and who elects to use the publisher’s or aggregator’s ISBN, as I illustrate in The Global Indie Author. Your non-exclusive contract to publish is restricted to the book; if you wish to publish your title elsewhere you have to create a different book, usually by changing  the cover.)

Thus, when Apple insists you can only publish the “work” through iBookstore, does this mean the content of your book or only the iBooks Author format? Personally, I read the contract to mean the latter but I am not a copyright attorney, and I can foresee disputes arising over this (just reading the contrary blogs is a good indication that not everyone agrees on the interpretation of the contract). Consequently, as an author I would stay clear of iBooks Author until these issues are clarified.