Letters to the Editor
Taking the Moral High Ground on Copyright
Sanford Thatcher, April 1994
If the attitude toward copyright reflected in Sam Bass Warner's essay (Perspectives, December 1993) is widely shared in the historical profession, then scholarly publishing is in a lot of trouble. Although he concedes that "glib breaking of the law" by teachers would not set a good example for students, he pretty clearly favors unrestricted photocopying with no, or at best minimal, compensation to copyright owners.
Although he may view publishers generally as greedy capitalists, I am sure that if he would think for a moment about the history books and journals he actually uses in his own research and teaching, he would have to admit that a great many of them are published by university presses, which collectively produce nearly seven thousand books annually and also issue almost five hundred journals (about 80 percent of them in the humanities and social sciences). Has it never occurred to him that the copyrights in these publications are owned by the parent universities and that there may be very good reasons for their presses to want payment for reproductions that do not fall within the bounds of "fair use"? What "social needs" does he think are being served by having professors purloin the property of their own and other universities?
If Professor Warner would take the time to think through the consequences of the practices he condones, he might come to realize that, however much short-term advantage they might bring, they really can only result in harm to teachers and their students in the long run. The sad truth is that university presses are finding it ever more difficult to publish monographs in history and other liberal arts fields. Books that would have sold around fifteen hundred copies if published twenty-five years ago now barely manage to sell five hundred copies. Photocopying is not the only culprit, of course; the decisions of librarians to reduce purchases of monographs in favor of continuing subscriptions to high-priced science journals are equally to blame. But photocopying is a strong contributing factor. Professor Warner rightly points out that royalties and permissions fees for any individual author of an academic work are not likely to be great, but he doesn't seem to realize that, cumulatively, income derived from such fees are increasingly important to university presses as they struggle to make ends meet and continue serving the world of scholarship by publishing monographs. For journals, too, permission fees are more and more making the difference between operating at break-even or at a loss.
In his discussion of "alternatives," Professor Warner also betrays a lack of appreciation for the "value added" by publishers to academic works. His suggestion that the problem of photocopying may be only temporary because electronic "modes of diffusion of knowledge" are fast displacing print publications makes one wonder what he thinks will become of peer review, copyediting, design, and marketing in this new environment. And his idea that historians might collectively dispense with "journals and publishing houses" and find better means of disseminating historical research implies that he would prefer all publications to emanate from the AHA as a central source. But would that really be in the best interest of historians, especially younger scholars who would need to seek approval of their work from a presumably establishment-dominated single review board, instead of having the opportunity to select from a wide range of university presses, each with its own peer review process managed by the press's staff? And even if the AHA were to take care of all historians' needs, does he think it could do its job adequately without well-trained editors, designers, and marketing personnel?
His "industry bargaining" alternative puts forward the Canadian system with its "cartels of publishers and users" as a model to emulate. But isn't he aware that at the behest of Congress when it passed the 1976 law the Copyright Clearance Center (CCC) was set up as a joint venture of publishers and users and that both groups are represented on the CCC's board of directors? And doesn't he know that copying without prior permission at a preapproved rate, which he advocates, is precisely the basis on which the CCC's Academic Permissions Service operates? If more universities would set up their own copyright clearance centers (as Harvard, Minnesota, Northeastern, Penn State, Stanford, Washington, and a few others have) to help faculty clear permissions in a timely and correct fashion with the CCC or directly with publishers, the whole process of using coursepacks would be much easier for teachers. They should lobby their administrations to establish such centers on their campuses rather than complain about publishers exercising their legal rights.
In the interests of historical accuracy, I'd also like to correct his version of the recent history of U.S. copyright law. As one who participated in the effort to get the new law passed by Congress in 1976, I can assure him that it is a gross distortion of the truth to claim that this was a law "publishers lobbied through Congress." What I recall is a long, hard, uphill battle to get even minimal regulation of publishers' needs, especially from librarians and educators whose political influence in Congress vastly outweighed that of publishers. Barbara Ringer, register of copyrights at the time (who is now serving as register again), viewed the 1976 act as a triumph for authors. (As an antidote to Benjamin Kaplan's book, which he recommends, Professor Warner would do well to read Ringer's 1974 Bowker Lecture entitled "The Demonology of Copyright" where she characterizes Kaplan's book as "controversial" and declares herself to be writing from a standpoint opposite to his "low-protectionist bias.") Indeed, U.S. copyright law (unlike British law) accords no rights to publishers in the first instance (unless they are employers who are defined as "authors" of "works made for hire"), but only by assignment from authors. If there are problems with rights as exercised by publishers, authors bear the ultimate responsibility.
Professor Warner's "understanding that the desire to secure international markets propelled most of the changes" in the law is also peculiar, especially insofar as he infers a need of American publishers "to make over our law of copyrights so that it more closely resembled the Continental law that treats literary property as a natural right." On the contrary, it was precisely the most distinctive "natural right" feature of European law —the droit moral—that many U.S. publishers mightily resisted importing into American law, to the extent that they so paralyzed the industry's trade association, the Association of American Publishers, that it could not bring itself to endorse U.S. accession to the Berne Convention in 1989 because of the implications some publishers felt that joining Berne would have for reinforcing the move toward adding "moral rights" to U.S. law.
Sanford Thatcher, Director
Penn State Press