Internet Publication - What is it Anyway? Thunderquill Article - December 2006 - Article updated with new information Feb. 2007
What is considered publication? You would think this would be a relatively easy question to answer, but with the new advancements in technology and the different ways that information is shared, especially on the internet, it's becoming more difficult to come up with the proper definition for the word publication. On the internet, if you actually display your story on a web page or forum, it is indeed considered publication by most editors and industry professionals. But what if you have posted a file that can be down-loaded to your visitor's own computer; is that considered actual publication? Well, I've just finished making a number of phone calls and I am waiting to hear back from editors and various legal and journalism consultants to answer that very question.
Hold on, it could be awhile . . .
Okay, after hours and hours of waiting, I'm back and the news is not good. Yes, it would seem that a downloadable text file, posted on a website is considered by most of the legal consulting parties involved, to be publication. And as you can imagine this does not bode well for many of the would-be authors who have decided to have downloadable text files on their site, mistakenly believing that it is not considered actual publication. And here's the funny part, they may be right, at least in part.
Sorry, am I confusing you? Just wait until I do an article on copyright, then you'll be really perplexed. But allow me to confuse you on one subject at a time.
While most legal sources confirmed that downloadable text files presented on a website, to be published material, they also noted it was a very grey area, hence the reason they had such difficulty in answering the question to begin with. To complicate matters, I spoke to an editor who said, he would not consider a downloadable text file on a website to be published material. For him, publication meant an article or story that was on display, like what you would see on a web-page or newspaper.
In other words, there is no clear-cut answer to this question. What it boils down to, if you send a story submission to a publisher, you also had available on your website as a downloadable file, it would be up to the individual editor or publisher doing the buying, as to whether or not they consider it to be previously published material. For most publishing-industry professionals, it comes down to who, and how many people had access to the story before they did. And this would be information, you'd be obligated to furnish to such a party, if they wished to acquire your piece for their publication.
In any case, one has to ask the question if having a downloadable file on your site or homepage is really a good idea. After all, publication within itself extends some form of protection, because it displays your article along with a credit byline as something created by you. In confusing contrast, making a story available for easy download, without it actually being seen on your site pages, may leave your visitors with the mistaken impression they can do whatever they like with your material if you don't state very specific terms of use and copyright notice up front and within the contents of the file itself.
Of course, my own attorney (who's also a concerned family member), vehemently advised against having one's original writing available in a down-loadable file, especially if there is no way to determine who's doing the downloading. Truthfully, it just makes it that much easier for someone to steal or misuse your work, because you're giving it to them freely, word for word. And this could prove to be a very sticky dilemma for a judge to resolve, if the issues of rights of use or ownership should ever arise in court. Still there are rare instances where making a file available for download can be helpful, especially now that many internet and paper publications are allowing submissions through email. Just use common sense and do the proper research to confirm the identity of the persons asking to have access to your work and save copies of all the correspondence you have with such parties.
Of course, there are other handy options for new authors, with nice side-benefits you may not have yet considered, like publication in a forum. After all once you publish your story or article in such a venue, the listing automatically tells you exactly how many times it has been viewed and in most forums you're allowed to remove the posting, if the material receives an opportunity for paper publication. In fact, you may wish to keep the piece posted, so that a buying editor has the chance to confirm the information you've given him, along with viewing any positive feedback provided by readers and other writers. And if your piece proves to be quite popular, supported by positive reviews from readers, it might actually help you make the sale to that inquiring editor.
In yet another strange turn, that same editor may decide that sharing your work in a writer's forum, is similar to passing out copies to your friends and really isn't considered official publication by his or her standards. However yet again, that would be a decision left to the individual editor. But if you're lucky, you may still have a slim chance at selling first serial rights, if your story hasn't been viewed too many times. Besides if you're an unknown scribe just starting out, it's likely there will be very little, or no difference between the pay of First Serial Rights and One Time Rights.
Considering all the newbie writers trying to get their work out there, it's regrettable that I couldn't offer a more clear-cut answer to this question. But if you'd like to do more research on this and many other subjects around copyright and trademark issues, you can go to The Publishing Law Center. This comprehensive site covers a number of legal areas of interest to writers, including the internet and other forms of electronic media. And if you find anything interesting, please let me know. Or better yet, write an article on the subject.
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