Association of Research Libraries (ARL®)

Peter Givler, Director

The Ohio State University Press

As members of the research community, we face a number of serious problems. One of them is copyright -- how we understand it, how we use it, and how it is to work in a networked environment -- and another is the economics of scholarly communication -- who is really paying for what, how we do more with less, and how it is all going to work in a networked environment. Copyright issues and economic issues are closely related and I'll have a little to say about that relationship, but since Colin Day has already spoken about economics in some depth, I'm going to be talking mostly about copyright. At the outset, though, I'd like to state both a fundamental premise of my own and a conclusion I hope to bring you to, if you don't already hold it. Simply put, these are issues that affect all of us. If we are to solve them, our best hope is to solve them by working together.

That is just by way of saying how pleased I am to be here. I have been in publishing for twenty-four years, scholarly publishing for the last fourteen. and this is only the third conference I've gone to at which librarians and scholars and editors and publishers have come together to talk to each other. The other two were the last two meetings of this group. If we find that we disagree with each other about some things, that's only to be expected; we each spend our professional lives working on a different part of the puzzle.

But it is one puzzle, and copyright -- where author's rights, publisher's licenses and user's needs intersect and sometimes conflict -- is one of the key pieces. Many of the conflicts can be resolved. Some cannot be, in the sense that no attempt to balance different sets of interests can completely satisfy all of them. But if we accomplish nothing more today than a clearer understanding of where we don't agree, I still think that's an important step in equipping all of us to deal more intelligently with a future that seems increasingly to consist of nothing (with a tip of the hat to Marge Piercy) but enormous changes at the last minute.

The purpose of copyright can be difficult to understand in a university setting, because the very idea of copyright seems to run counter to the high ideals of university life. Universities today -- especially the large, publicly-supported universities that most of us work in -- are complex institutions with many goals that do not always coexist easily, but at their core, they're still dedicated to the search for truth. Or, if you prefer, to a search for underlying principles, verifiable theories, and accurate explanations, however qualified the search may be by the contingencies of academic fashion, government financing, and political weather. We don't capitalize Truth anymore, except in our dreams. We speak of truths instead, but our dedication to a life searching for those truths connects us to each other and to that long line of gowned scholars stretching back to the great medieval universities of Salerno and Bologna and Paris, and finally to Plato's Academy.

In this world, communicating the results of research is essential. It moves disciplines forward and establishes professional reputations, and in evaluating the record of that research, whether it is a manuscript being considered for publication or a published book being reviewed for a professional journal, first consideration goes to the significance of the facts and ideas it brings together. The form in which those facts and ideas are expressed is of distinctly secondary importance. as long as they are put in reasonably intelligible English, and as long as the conventions for scholarly writing in that particular discipline are observed.

That point is a simple one, but I think it explains something important about formal academic discourse, and about the way many of us who read and write it tend to think about copyright. This focus on the primacy of facts and ideas, a focus that has informed academic thinking and research from its earliest beginnings and that all of us accept and value as a noble intellectual tradition, can make it difficult to take copyright seriously. Copyright protects forms of expression, not ideas or facts, and we tend to see specific forms of expression and stylistic choices as more or less arbitrarily different ways of trying to communicate something whose reality is independent of the language used to express it. So the idea of a writer having some form of ownership rights in the way she says something -- and basically, that's what copyright is all about -- goes against the grain. It's not only a nuisance, in that it puts annoying restrictions on our ability to quote other people's work in our own research and textbook writing, but it also seems fundamentally wrong-headed. Like putting up fences and "No Trespassing" signs in a national forest, it's not simply annoying and bothersome, but also seems morally questionable and undemocratic. Lawful perhaps, but in an ideal world, also unjust.

However, copyright is also the law of the land, and all of us feel both a personal and professional obligation to respect it, even if we regard it as problematic. That many of us do regard it as problematic, though, has led to a particular view of copyright that I think is a false one, and that has the dangerous and destructive potential to keep us arguing among ourselves instead of working together to solve our common problems. That view sees copyright law as a battleground on which two groups of rights struggle for dominance: the intellectual property rights of publishers and authors to capitalize on their copyrights on one side, and the public interest rights of libraries and users to gain access to information and ideas on the other.

According to this view, copyright law grants a kind of information monopoly to copyright holders, and monopolies, by definition, do not serve the public interest. They prohibit competition, and so prices are not established by the ordinary laws of supply and demand that should operate in a free-market economy, but are driven instead by the copyright holders' desire to maximize their profits. As a result, the cost of information has risen more quickly than inflation, and library budgets, which have been shrinking in real dollars as well as well as squeezed by inflation, are being doubly and intolerably pressed. In this view, then, libraries and patrons are locked in a struggle to free information from a legal but morally questionable monopoly created by copyright.

Some publishers do behave as though their copyrights gave them an infinitely exploitable monopoly, and have priced their publications accordingly. Ann Okerson's excellent analyses for ARL of serials pricing patterns build a convincing case against certain journals publishers. More recently we have the example, as reported in Lingua Franca,[1] of a press that has been confoundingly successful at selling what appear to be monographs with virtually no scholarly value to university libraries at some very pretty prices indeed.

But if there can be no question that copyright has been abused in some cases, I do question the conclusion that copyright itself is to blame. From the fact that some publishers have behaved badly it does not follow that all have, or will, and I don't think there's anything in copyright law itself that compels economic antagonism between authors and readers, or publishers and libraries. On the contrary, I think the law itself embodies and serves a powerful vision of the public interest. But to get at it, I want to back out of everything I've been saying about copyright for the last couple of minutes and come at it from a somewhat different angle, and one that has been missing from virtually all of the discussions about copyright I've heard recently: the author's.

Authors -- the word is a general term for all creators of copyrightable material, so I'm going to continue to use it even though it's awkward -- authors don't talk much about copyright, or even appear to pay much attention to it, but I don't think that's because they don't care about it, or think it irrelevant. I think they take it for granted. If they're commercially successful they probably have an agent to worry about the technical details, and if they don't, they trust their publisher -- a trust, I feel obliged to say, that most publishers take seriously and do not abuse.

As you know I am a publisher, and in discussions of copyright publishers often claim to speak for their authors' interests. But I am also a writer who occasionally publishes something in this or that, and sometimes even gets paid for it, and it's as a writer, not a publisher, that I'd like to try to speak next.

The 1976 law itself grants federal copyright to authors for:

. . . original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.[2]

Under the current law this statutory copyright begins at the moment I fix my work in a tangible form, so long as the work itself is "original" within the meaning of copyright law. This meaning is a good deal more specific than it is in common usage. Facts, scientific discoveries, ideas, theories, mathematical equations, and so forth are not themselves eligible for copyright protection no matter how new or original they may be in the ordinary sense, since they are presumed to exist independently of the language used to describe them, and so are common intellectual property. Copyright protects original expression.[3]

Currently, neither registration of the copyright nor notification through a copyright notice affixed to the work are required to establish copyright (although they are strongly recommended and will become significant if any later questions are raised about infringement). Under current law if I've written something down, and if it's original as that word is understood in copyright law, then I hold the statutory copyright in it.

This is an important change in the law, but not a revolutionary one. British and American common law have recognized authors' copyrights in their own work for several hundred years. Under the terms of the 1909 law that preceded the 1976 Copyright Act, an author's common law copyright ceased to exist upon publication, when the work either acquired a statutory copyright by being published with the appropriate notice, or it fell out of copyright into the public domain. If the work was not published, then under common law the author's copyright remained intact, in perpetuity. Under the 1976 law, because federal copyright comes into existence at the moment of fixation it now supersedes common law copyright, but the federal law still recognizes the underlying principle of the older, common law tradition: that the author is the primary owner of her work, and until she decides to make it public or the copyright expires, that ownership is virtually absolute.

So there is a long tradition in British and American common law which says that before everything else, authors own their work. The creation of statutory copyright, what publishers can and can't do, our notions of public interest and fair use -- all of those considerations, as important as they are, are secondary to that primary fact of ownership.

What does this kind of ownership mean to a writer, even an occasional writer like me? It means that, legally, the time I have spent reading and taking notes and trying to understand copyright, and then the time I have spent sitting at my word processor writing the paper you are now reading, all that has resulted in something. A piece of intellectual property: tiny and flimsy to be sure, but nonetheless as tangible in the eyes of the law as if I had spent my time painting a watercolor or composing a symphony. As a writer, the words on this piece of paper are my part of the rock, my stake in American culture, both the foundation and the guarantee of my belief that this country is shaped by books and ideas, as well as guns and money.

At this level, it doesn't matter whether this or that piece of my writing also has some economic value I can cash in on, any more than it matters whether I can find a buyer for the painting or an orchestra to perform the symphony. What matters is that copyright law grants me ownership of what I write, as long as the expression is original. And of course the law speaks to many more activities than just writing. The word "author" in copyright law includes writers, composers, lyricists, computer programmers, architects, choreographers, filmmakers, playwrights, painters, sculptors, photographers, the designers of computer chips -- anyone who creates "works of art and literature . . . and works whose purpose is to convey information or ideas."[4]

When the Constitution describes the basis for copyright and patent law,

The Congress shall have the power . . . to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . . [5]

surely it means that "progress of science and the useful arts" will take place only if creative work is encouraged by permitting authors to claim credit and be recognized for what they do, by acknowledging their contributions to our culture, by prizing the creativity of individual minds.

This is as true of scholarly writing as of any other kind. The direct financial rewards paid as royalties to an author for publishing scholarly work are dismally low, if they exist at all. But the indirect compensation for publishing work that is recognized as original by one's peers is substantial: tenure, promotion, merit increases, greater professional visibility, the ability to get grants, consultantships, a better job at another institution. Virtually the entire system of economic rewards and incentives for a member of the faculty in a research university is based on her ability, as a scholar, to communicate to the rest of the research community the results of her work, to claim it as her own. She won't get credit for thinking it up and precious little for teaching it, but once she writes it down and publishes it, then it becomes publicly and certifiably hers. As a kind of negative proof of the power this claim of intellectual ownership has in academic life, look at how quickly a finding of plagiarism unravels a career.[6]

The ownership principle inherent in copyright--that the author owns the specific form of her original work--has another consequence that is important for academic writing. It allows the author to maintain control of the exact wording of her text. If the text should become corrupt, copyright allows an author to say, these are the words I wrote and intended to appear over my name, and this is where the text was altered. Even if the entire system of scholarly publishing were completely subsidized by the university and university press books and journals could be given to libraries for free, as Sandy Thatcher has proposed, the need to maintain and certify the integrity of texts would still be a compelling argument for copyright.

Our society privileges creative and original work, and it does so because I think we recognize that the exercise of creativity and originality serve the public interest. The First Amendment is a different area of the law altogether, but it, too, says through the protection it extends to the communication of ideas that such things have special social value. We recognize the social value of original invention in patent law. In short, I think the idea is well-established in law that originality and creativity are in themselves a public good and that they deserve encouragement and protection.

Copyright encourages originality by establishing ownership, but it also encourages dissemination. Although we speak of it in the singular, copyright doesn't denote any one thing. It's a collective noun, and copyright is actually a bundle of five separate rights: the right to make copies of a work, the right to distribute those copies, the right to perform the work, the right to display it, and the right to create derivative works from the original. There are also what are called moral rights, but I'm not going to say anything more about them here, because they apply to only some visual works and even there have very limited application under U. S. law.

When an author signs a contract for publication of his work, the core of that agreement specifies how these rights are to be assigned to the publisher. In deciding how to make that assignment, a very interesting and useful property of copyright is that each of those five rights--to copy, distribute, display, perform, and create derivative works--is both separable from the others, and also divisible. The range of possible divisions and recombinations of these rights is quite broad and we see them all the time. In the case of a very successful book, hardcover publication rights might go to one publisher, paperback rights to another, book club rights to someone else, film and television rights to a fourth party, and electronic rights to a fifth. The book might also be translated into various foreign languages, with a different publisher handling each translation, and negotiating further arrangements for foreign-language paperbacks, book clubs, and television mini-series.

This means that in addition to establishing ownership, copyright law also creates a flexible system through which copyrighted works can reach their audience. That audience may be reachable in one medium, or in half a dozen; in one language, or eighteen. It may be three hundred research libraries and a couple of hundred scholars, or five thousand subscribers to a journal, or millions of readers worldwide, and millions more viewers on television and film.

By establishing ownership, and then vesting that ownership in specific rights that can be transferred to someone else, copyright permits a publisher a reasonable chance of recovering the costs of publication. This is what makes the whole system of communications, including scholarly communications, work in this society, and it is where copyright law and publishing economics come together. There's no guarantee that expenses will be recovered; publishing anything is a gamble. But basically, if I have acquired the exclusive right to publish something, that means that at least I can go ahead without having to worry about the possibility that someone else will also be publishing the same work for the same market.

When you are publishing for small and specialized audiences, as all university presses do, the margin for error in establishing prices and print runs is very small. The costs of selecting manuscripts, preparing them for publication, manufacturing books and journals, selling and marketing them, and carrying on all the other activities that are required of a publisher have to be recovered from the sale of a number of copies that has been steadily shrinking over the last twenty years. And to add to the problems, our subsidies are being cut just as your support is. If we cannot maintain the necessary rights to what we publish and have to watch the demand for our publications -- in whatever form -- be eroded by unregulated dissemination of the same material, we'll be out of business.

Nevertheless, as long as all of us recognize these fiscal realities, the ability to split copyright into separate rights and to subdivide them offers us a good deal of flexibility in designing special licenses for specific purposes, like electronic distribution of journals. One promising avenue here is the negotiation of blanket licenses, under which a library might acquire the rights to provide a group of journals electronically to all of its patrons for a given period. I think this is a promising avenue to explore in that it seems to me to offer a way of balancing the rights of authors, publishers, and users without imposing an unreasonable burden on any of them. Janet Fisher, and Isabella Hinds from the Copyright Clearance Center, will each have more to say about licensing, and about fair use in their talks.

As it currently exists, I understand copyright law to do three things. First, it recognizes that creative people own the work they create. Second, by splitting copyright up into separate and individually divisible rights it creates a flexible legal framework that allows wide dissemination of copyrightable work, and also protects the underlying rights of ownership. And third, by protecting those rights of ownership and making it possible to recover the investment required for publication, copyright actively encourages dissemination.

If that analysis is accurate, then in my view copyright law as it stands does serve the public interest, and serves it well. That some publishers may take advantage of the law by charging excessive prices for their publications is a serious problem for all of us in the research community. If librarians are shocked at having to pay $5,000 for a year's subscription to a single STM journal, so are many publishers and scholars. Given limited budgets, we're all well aware of how just a few purchases by you at that level foreclose the possibility of wider purchases of other materials from us, and restrict the usefulness of your collections to scholars in the social sciences and humanities. It's a truly vicious and terrible cycle: as you cut back your purchases and our sales drop, publishing costs have to be recovered from a smaller and smaller sales base just at the time that our own subsidies are being reduced or eliminated. And that can only translate into higher prices, which just makes the pressure on your budgets that much worse.

I don't have a solution for this problem, but I do have some suggestions where not to look for one. Trying to change the law is not the answer; that just puts us in a direct contest for Congressional attention with a lot of deep pockets whose interests lie in the direction of more restriction on copyright, not less, like very large high-tech companies that develop the operating systems and other software for personal computers. And working around the law just exacerbates the problems we already have. I think there are a number of interesting and promising avenues to explore -- new licensing arrangements; electronic publishing; greater involvement of the university, through its press, in the creation and financing of new publishing venues. But no matter what we do, we have to work cooperatively. Historically, philosophically, legally, and economically we are all part of the same institution, serve the same goals, face the same fundamental problems. Our fates and our futures are interlocked. Let's see if we can't find the answers together.

Endnotes

[1]St. John, Warren. "Vanity's Fare." Lingua Franca, 3, no. 6.

[2]17 U. S. C. 102(a).

[3]Strong, William S. The Copyright Book, A Practical Guide, 4th ed. (Cambridge: 1993), 3-13. The standards for originality in copyright law may also be considerably lower than most people have in mind when they use the term. In two recent cases the White Pages of a telephone book were found ineligible for copyright on the grounds that no originality is required to compile an alphabetical list, but the Yellow Pages were protected since they showed originality in the selection and arrangement of the entries. Feist Publications, Inc. v. Rural Telephone Service Co., 111 S.Ct. 1282 (1991), and Bellsouth Advertising and Publishing Corp. v. Donnelley Information Publishing, Inc., 933 F.2d 952 (11th Cir, 1991)

[4]Strong, p.1.

[5]Constitution of the United States, Article I, Section VII

[6]Copyright infringement and plagiarism are not, however, the same thing. Plagiarism is the use of someone else's ideas without attribution, whether or not the specific language in which the ideas are being expressed has also been taken from someone else.