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AAUP Copyright and Permissions Resources The Value of University Presses Scholarly Publishing Bibliography
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Copyright: It's for the public good by Peter Givler, Executive Director, AAUP See also: Copyright and the Costs of Scholarly Publishing This article originally appeared in The Chronicle Review, May 9, 2003. I got my start in publishing as a college traveler and, except for one memorable year as a trade editor, I've spent my career in publishing talking, arguing, and working with academics—authors, editors, editorial-board members, and even a few deans and provosts. I think I understand academic values well enough, and the challenge of trying to make this scholarly publishing business serve those unbusinesslike ends has made my career interesting in more ways than I ever could have imagined when I started out almost 35 years ago, starry-eyed and in love with books. I often feel as if I'm trying to bridge two worlds; it's exhilarating, frustrating, deeply satisfying work, and I've never regretted choosing to do it. It does have its trials, though. The academics and librarians I know are smart, interesting, delightful people, but they do have some peculiar ideas about copyright. To hear them tell it, copyright is a law invented by publishers solely to serve their own financial interests, a personal-use exemption to copyright law exists for the convenience of scholars, and any educational use of copyrighted material is, by definition, a fair use. And the most pernicious of all: Copyright and intellectual freedom are fundamentally opposed, locked, like good and evil, in a Manichaean struggle for the soul of the university. Trying to understand such discussions sometimes makes me feel that, instead of bridging two worlds, I'm becoming the Man with Two Brains. I appreciate why copyright is controversial. A tight academic job market has ratcheted up the pressure to get into print just at the time when mounting financial difficulties have made it harder to publish books, library budgets are under tremendous pressure, and the rapidly changing electronic scene opens new possibilities and sets new challenges for scholarly communications almost daily. Copyright is implicated in all those problems, and the pressures are probably going to get worse before they get better. But from a publisher's point of view—and it doesn't matter whether commercial or nonprofit—copyright is bedrock, the legal foundation of the business. So you would think publishers would be the first to tell you why copyright is important. Alas, we don't. Instead, we have presented copyright as a set of dense, technical rules about how to comply with the law without ever explaining why anyone should bother, as if the mere existence of the law made clarification of its purpose irrelevant. That Big Brotherish air has been reinforced by Hollywood, the wonderful folks who brought us term extension for Mickey Mouse, and the laughably bogus copyright "Warning!" at the beginning of every movie you watch on your VCR or DVD player. Maybe those who believe in secret military bases and a United Nations bent on world domination also believe that the FBI, with Interpol panting on its heels, will come crashing through the door if they make an illegal copy of Home Alone. For the nearly normal among us, though, the idea is preposterous, and it only serves to undercut the idea that copyright is real and enforceable. It is both, and I believe that publishers should enforce their rights in court. Litigation is, and should be, a last resort. But if publishers have failed to argue the good of copyright, we have often, in the past, failed to treat infringement seriously as well. So I'm pleased about the recent suits filed against copy shops in Florida, Illinois, California, and Indiana, and I hope publishers will continue to seek creative new options for enforcement. But rational persuasion is even more important. So what is copyright? First of all, a quick word about what it isn't. An idea in a copyrighted work isn't patented; in fact, it isn't even copyrighted. As the law itself says, "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work" (USC 17, §102 (b)). It would be hard to say it more plainly than that. Copyright protects forms of expression, not the ideas or facts being expressed. As to its purpose, Byron put it succinctly in Don Juan: Words are things. Copyright is a specialized form of property law that recognizes that works of original expression belong to the person who created them. Today that doesn't seem very remarkable; we hardly give it a thought. As a specific statutory right, though, it is relatively recent; the first English copyright law, the Statute of Anne, was passed in 1710, about 95 years after Shakespeare's death. Shakespeare, whose works are so well known, yet whose texts exist in so many versions, furnishes an instructive example of the perils of authorship before copyright. Under the laws of his day, once his company had performed one of his plays, Shakespeare lost the legal ability to prevent further performance by anyone else. All he could do to control performance rights, as it were, was to keep the acting script, or prompt book, under lock and key. Since his plays were popular, a brisk business sprang up in counterfeit manuscripts, produced by actors from memory, or by scribes in the audience who took notes, that were sold to rival companies and performed as plays by—who else?—William Shakespeare. As a result, after 400 years of Shakespeare scholarship, we still don't know for sure which of the many variant texts of Hamlet represents Shakespeare's own authorized version, and we probably never will. Copyright law changed two things. First, by giving authors legal control over their own texts, it created a system for maintaining textual integrity, a public record of the authorized text to which other texts claiming authority could be compared. Second, and closely related, it created our modern sense of what the profession of author means: namely, to be someone whose reputation—and with luck, livelihood—rests on being recognized as the creator of the precise texts published under his or her name. If that sounds abstract, in university life it has enormous practical significance. For the overwhelming majority of academic authors, the direct financial rewards of publication, royalties and advances, are negligible, but the indirect rewards—promotion, tenure, higher professional visibility, the ability to attract larger grants, better jobs, and so forth—are significant indeed. For better or worse, they are the true coin of the scholarly realm, and at the core of those indirect rewards is professional reputation, which in a university rests precisely on being recognized as the author of a specific body of texts. To remind yourself how important the integrity of that record is to academic reputation, just think back about the recent public furor over accusations of plagiarism leveled against two well-known historians. Copyright grants the creator of original written work the exclusive right to publish it for a certain length of time, and makes that right transferable to someone else. In so doing, copyright creates the basic legal mechanism that allows publishing costs to be recovered from the marketplace. A business investment made in publishing a work protected by copyright—the costs of evaluating, editing, designing, producing, marketing, and distributing it—can be recovered (or at least has the potential to be) from sales. Once again, today we take that for granted, but, before copyright, if an author wasn't wealthy, publication depended largely on his or her ability to appeal to the generosity of sponsors and patrons. By shifting the financing of publication from patronage to the marketplace, copyright laid the foundation for the enormously expanded range of ideas and information published today. To go back to Byron for a moment, his mistress Caroline Lamb described him as "mad, bad, and dangerous to know." He probably was, but the phrase itself is too good to apply merely to one young man. Ideas themselves are often mad, bad, and dangerous to know. Significant ones almost always are, which is why the First Amendment is so important, and copyright so closely linked to it. Both originate in our Constitution, and both address the central importance of communication to a modern, democratic society. The First Amendment protects the expression of ideas from government interference, while copyright provides the economic engine that drives their wide distribution. The U.S. Supreme Court recently affirmed the important relation between free speech and copyright: "Indeed, copyright's purpose is to promote the creation and publication of free expression. As Harper & Row observed: 'The Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.'" That quotation is from Justice Ruth Bader Ginsburg's majority opinion in Eldred v. Ashcroft, the challenge to the constitutionality of the Sonny Bono Copyright Term Extension Act, the 1998 law that added 20 years to copyright. That law is constitutional, the court said, although there are faint hints in the decision that the court also thought it ill considered. It's certainly unpopular, and a lot of publishers, to whom the use of materials in the public domain is as important as it is to others, would be happy to see Congress rescind it. But copyright itself, as Justice Ginsburg points out, is good law precisely because it is such a powerful force for public good. |
