Apr 1 2009
Authors Guild is determined to further alienate ebook readers with its latest cease and desist order. There is a new startup company called DuroSport that is hawking a “Smell of Book” product. I suppose it is to address those who fetishize the smell of books and can’t give up paper books for digital copies because of the lack of real book odor. There was another company a while back that tried to offer scratch and sniff stickers to place on your ebook reader.
Both ideas are somewhat suspect but the mere saleability of an idea shouldn’t prevent reader concern over this issue. The Authors Guild is attempting to broaden the copyright to include rights that were never conceived to be considered part of the bundle of rights granted by the Copyright Act of 1976 or any of its subsequent modifications. Indeed, the Authors Guild torturous interpretation of the rule to include olfactory rights would be an impossible stretching of Copyright that not even JK Rowling’s lawyers would have the chutzpah to claim.
It is important to note that in the digital era, books, and the smell of books, have been decoupled. In the future we expect authors to participate in the development of custom aromas for their books. These olfactory rights constitute a derivative right to be licensed separately. The preservation of these rights is essential as authors explore new markets and distribution channels.
As Cory Doctorow recently
href=”http://www.guardian.co.uk/technology/2009/mar/31/cory-doctorow-kindle”>wrote in the Guardian on a piece related to the the Kindle’s TTS function, the Authors Guild is trying to appropriate rights that don’t rest with the authors in the first place.
Now, I happen to disagree with that position because I don’t think that text-to-speech is a substitute for audiobooks for the majority of listeners, and because the value of text-to-speech is such that people will buy enough ebooks to offset any losses from substitution, and, most importantly, authors who oppose this feature look like grasping, greedy jerks and will alienate their readers.
There is nothing in the Copyright Act that gives rise to the Authors Guild position. Copyright applies only to the expression of an idea. I question whether the smell of a book could ever be copyrighted. The formula that creates the smell could be patented and probably copyrighted but the expression, the scent itself, does not seem to be copyrightable. Can you copyright the air that we breathe? Further, old book smell isn’t created by authors at all (and it is creativity that the copyright act is designed to protect). Old book smell is created through the aging and molding process that results when paper is exposed to the elements over a period of time. If anything could be rightly deemed intellectual property, it is the process by which the smell is achieved. NOT THE SMELL ITSELF.
Further, each individual human has a different ability to smell. According to research conducted through the Human Genome Project, humans have "superfamily of approximately 1000 odorant receptor (OR) genes and that each OR gene is expressed in approximately 1 per 1000 olfactory epithelial neurons (hereinafter OE) and that polymorphisms in many of these genes have been reported. In lay terms, different people have different abilities to sense smells. This implies "interindividual variation in olfactory responses and perhaps to diseases triggered by olfactory stimuli."
Indeed, if you look that the "abstraction-filtration-comparison" test which is used by courts to determine if an accused work is substantially similar to the protectable elements of a copyrighted work, you can see that there are simply some concepts that are not subject to protection. The first step in the abstraction test is to “separate the ideas (and basic utilitarian functions), which are not protectable, from the particular expression of the work.” Copyrights do not protect concepts such as the subject matter present in artistic renderings. As Justice Holmes stated: "Others are free to copy the original. They are not free to copy the copy." Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249, 23 S.Ct. 298, 47 L.Ed. 460 (1903).
Therefore, the scents that are being reproduced are copying the original, not something that the authors are entitled to as a derivative right. Simply put, this is another overreaching rights grab by Authors Guild and for the sake of readers rights, we can only hope DuroSport will not cave to these demands.