Copyright and the Goals and Needs of Historians
Sam Bass Warner Jr., December 1993
Most historians, like American teachers everywhere, are suffering from the constraints brought upon us by an attack of threats and prosecutions undertaken by a consortium of publishers against campus photocopying practices. This attack rests upon a new copyright law the publishers lobbied through Congress. Like other industry legislation it favors some parties against others; it is in no way rooted in abstract justice or the nature of things.
In December 1992 the Council of the Association, responding to a member's complaint, authorized me to write this essay for Perspectives so that members might more fully comprehend their circumstances. There are a number of issues which must be attended to: 1) the social nature of literary property, 2) the maintenance of fair and reasonable balance between private control and public needs, 3) the current situation of historians in respect to copyright, 4) possible alternatives, and 5) the position of the AHA.
The Social Nature of Literary Property
Since a swelling pride of ownership commonly seizes an author at the completion of a manuscript, it is important that we historians consider both the social nature of literary property and the goals of scholarship before we make judgments about rules for copying published material. Private property is not some inherent natural right; rather it is a social construct, a set of legal attributes granted to citizens by the state. Literary property, no less than real estate, rests upon this common source.
In the United States the grant of property rights to authors when they publish their material begins with the Constitution: "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" (Article I, Section 8, Clause 8).
This language announces the inescapable tension between the public goal of promoting knowledge and invention as against the public means for such promotion: the subsidy to authors and inventors by means of a grant of time-limited private property rights. I find myself powerfully attracted to this old Constitutional formulation since it so deftly parallels the goals of scholarship and teaching.
In the research and writing tasks of historians we imagine ourselves to be useful citizens helping our fellow citizens to gain a more accurate and secure knowledge of the world they inhabit. We are not manufacturers of objects, we are professionals whose role it is to broadcast ideas about the past. Thus, both as authors and teachers we share a dedication to "promote the Progress of ... the useful Arts."
In 1790 Congress enacted its first copyright law to confer limited proprietary rights upon publishers of books, maps, and charts. Thereafter, largely through the initiative of publishers, the copyright laws of the United States have been amended to respond to new products and new means of production. I recommend Benjamin Kaplan's stylish lectures, An Unhurried View of Copyright (New York: Columbia University Press, 1967), to any reader interested in the history of copyright legislation and its case law. At the present moment the new machine is the photocopier which can copy a printed page for five cents or less. A scholarly journal or book, however, cannot be produced initially for five cents a page. It is this reproduction cost advantage that fuels the current war between the reproducers and the publishers.
In 1976 Congress enacted its latest major revision of American copyright law. Unfortunately, this statute and its subsequent interpretations represented a wide swing away from the public goals of encouraging the dissemination of useful knowledge. Instead it favored long-term private ownership and control. My understanding is that the desire to secure international markets propelled most of the changes. American publishers, and movie, music, and film distributors were seeking copyright treaties to protect their products, and it was they who needed to make over our law of copyrights so that it more closely resembled the Continental law which treats literary property as a natural right rather than as an instrument of social policy.
The new act extended the duration of a copyright from twenty-eight years, with a renewal privilege, to the life of an author plus fifty years (17 U.S.C.A. sec. 302). Its provisions (sec. 107) also set the terms for photocopying, which have been interpreted as forbidding the sale of photocopied anthologies without the previous permission and payment of royalties to the copyright owners. (Basic Books, Inc., Harper & Row Publishers, Inc., John Wiley & Sons, Inc., McGraw-Hill, Inc., Penguin Books USA, Inc., Prentice-Hall, Inc., Richard D. Irwin, Inc., and William Morrow & Co., Inc. v. Kinko's Graphics Corporation, 758 F Supp 1522, SDNY, 1991.) It is this law that makes cheaters of most of us, and which, I think, is a serious barrier to the dissemination of published works and the teaching of history.
The Situation of Historians
In our role as teachers the most common photocopying, in my experience, is the copying of chapters and sections from out-of-print books for distribution to students. The next most common photocopying is the copying of a chapter or two of an in-print book for student use when the amount of use does not warrant requiring the students to purchase the book. The least common, but useful, photocopying is the copying of articles from learned journals for student use. In all these cases the historian is obliged under the current law to get advance permission and to pay royalties—in my experience, usually around twenty-five dollars for fifty or less copies. There are delays in this process, and, of course, the publisher can refuse permission to copy.
Today royalties and their protection by copyright cannot be regarded as a significant spur to the protection of historical research. Instead of the early national situation of isolated amateurs, the United States teems with an army of historians who are salaried employees of our schools, colleges, museums, and public institutions. Many are encouraged to write and to publish in pursuit of lifetime job tenure. The minuscule royalties that most scholarly books garner, and the absence of payment for articles, are thus not of a major concern to such historians. It might be a nice calculation to estimate whether the bookkeeping costs of keeping track of these small payments to authors justify the custom.
By another logic we might think of such payments as double dipping, since the historian's secure, if small, salary with its injunction to do research is the underlying social contract. And should not projects supported by grants from the National Endowment for the Humanities and private eleemosynary institutions become public, not private, property? Doesn't the securing of private copyrights for such publications imitate the patents drug companies secure on new medicines whose research has been funded by federal grants?
A few histories are immensely profitable. Occasionally a team of historians gang together to write a cash-cow text. In so doing, they harvest the resources of contemporary scholarship. Also, there is that rarity among us, a best-selling book. I leave it to the reader to judge whether the historians who write such profitable works either deserve or, in a more Constitutional mode of thinking, require protection.
Whatever one's feelings in these matters, it is surely the case that the present law is feeding publishers, not historians. Are the current constraints on the free and easy dissemination of information worth the barriers to use or the costs and inconvenience of the current permission system? I think not.
The present copyright situation suggests a number of different alternatives. Three immediately come to mind: the Robin Hood alternative, the collective action alternative, and the industry bargaining alternative.
Following the Robin Hood alternative we could bow under the weight of difficulties which attend any attempt to reform the copyright laws. We would take note of the fact that the current law favors publishers and a very few historians and that it encourages sporadic enforcement by publishers. Yet the United States is a big country, its schools and colleges are many and dispersed. We could therefore relax and take comfort in the inability of publishers to enforce their law and sit back in contemplation of widespread illegal copying by historians. We might also observe that the current situation is not likely to last for long since computer text storage and text network exchange are now promoting new modes of diffusion of knowledge other than the older book and article publication.
The collective action alternative suggests that we might ignore this problem, and instead form a committee to look into the possibilities of improving the dissemination of historical research by means other than journals and publishing houses. The advantage of such an approach would be that it would position the AHA for expert testimony before library groups, publishers, and Congress, and would prepare us to secure in the future a better balance between the advantages of authors and the social needs for the diffusion of knowledge.
The objections to these two alternatives, of course, are that they make us all frauds and cheats. It surely is a debilitating thing for a society of laws when teachers and professors set an example to their students of a glib breaking of the law.
The industry bargaining alternative would call for opening negotiations with publishers to seek terms that reflect our copying needs. We might demand that all the publications we historians use carry a note that they may be freely copied without permission within the United States.
Or, we might instead insist that approved publishers affix a notice that some number of pages, say fifty, might be copied without permission but that the copier should send the publisher one dollar at a given address for each copy made.
Such a fee notice would be a variant on the current Canadian law. The AHA could, if it wished, endeavor to get the Congress to amend its statute by adopting the Canadian system. The Canadian law allows cartels of publishers and users to be formed in any number. These cartels then bargain among themselves, under some public agency supervision, over the charges and modes of use and collection. Currently the bargain is one dollar per copy, per article, and the notice of the fee and mode of payment appears on the article itself. It is, to be sure, an honors system, but in fact so is ours. My Canadian colleague says the system is very convenient. The only disadvantage of such a policy for the AHA is its inevitable slowness for Congressional enactment.
Since libraries are the principal purchasers of historical books and journals, there may be useful alternatives that encourage the design of systems for the easy multiplication of copies within libraries. Such a strategy might call for the transfer of federal and foundation research funds to libraries on the grounds that the current problem is not the lack of historical research but the restraints on its easy dissemination.
The Position of the AHA
The issue that is most immediately distressing is the confusion of purpose and response within the American Historical Association itself. A complaint on this issue by Professor Martin S. Pernick of the University of Michigan came before the Council last December, eliciting a diffuse and ill-focused response. None of us knew quite what we might or must do. We had no sense of what our relationship to the members of the Association might be. It would surely be a benefit to the Council as well as the members if we had clearer methods of communication and responsibility.
Because this is the United States, I assume that we would like our organization to be a democracy. In such an institutional form the members, not the officers or staff, would have the power and duty to set the agenda of the organization.
It is not hard to imagine how the members could exercise such power, despite our numbers and dispersion. For example, the Council could make a list of the eight items that had accumulated over the year's correspondence and business. This list would then be mailed out to the members with their annual ballots with the request that the members rank the items in the order of their sense of importance. The item or items at the top of the membership's preference would then become the urgent business for the next Council meeting. The Council would then soon report back to the members on its course of action.
In sum, it would be of tremendous benefit to the Council and the Association's members if there were a mechanism that allowed its members to say what was important to themselves in their current experience as historians. No such process now exists.
—Sam Bass Warner, Jr., is Jack Meyerhoff Professor of American Environmental Studies at Brandeis University and member of the AHA Council.