Publishers’ Rights and Wrongs in the Cyberage


Thomas G. Field, Jr.
Professor of Law, Franklin Pierce Law Center
39 Idea: The Journal of Law and Technology 429 (1999)
Reprinted J. Elec. Pub. (1999).
      In 1994, William S. Strong said at a meeting of the Association of American University Presses: “I have heard Chicken Littles say that the sky is falling... in the tones once reserved for statements that God is dead.”1 He also observed that much nonsense comes out of the university community and stressed that publishers need to educate the public about the functions of copyright. Yet, more than education may be required.

      Just last September, Lisa Guernsey reported that Steven Koonin, Provost at Caltech, would prefer that its professors retain copyrights and license publishers:2

      What’s more, he said, controlling the copyrights could give Caltech faculty members — or larger groups of researchers — the chance to vet and distribute research results on line by themselves, bypassing traditional publishers altogether.
      At first, Mr. Koonin says, “it was something of a joke.”

      Few publishers are likely to laugh. Guernsey went on to say:3

      Already, journal publishers are feeling the ground shift beneath them as the Internet takes over one of their main roles: the timely distribution of written works. Compared with the speed of the Net, the months-long process of putting out a journal seems tedious.

      Still, Strong had already explained why bypassing publishers would not be helpful:4

[M]ost of us feel so inundated by random information that we despair of ever managing to know even the essentials of what we must know. Good publishers, by screening this information for quality and validating it... perform an enormous service.

      The debate now extends outside academia. For example, the Atlantic Monthly recently sponsored an online roundtable5 based on the article, Who Will Own Your Next Good Idea? by Charles C. Mann.6 Responding to arguments “that in the long run the drop in costs spells the end of the ‘moribund’ publishing industry and the beginning of direct artist-to-public contact,” Mann said in part:7 “According to... [some] e-pundits, the situation will be remedied by new services that truckle through the Net for worthy works and help present them to the attention of the public.” Yet, he found differences between such scenarios and traditional publishing “elusive.”8 I am equally baffled.

      That writers can increasingly publish whatever and whenever they desire, signifies little in terms of capturing an audience. Who can find, much less is inclined to read, books from “vanity” presses that will publish anything at cost? Beyond that, academic and professional works in many fields receive little if any recognition without peer review. Such review is often critical. It not only has a major role in tenure decisions but also may determine the courtroom admissibility of evidence based on scientific research.9

      Still, unless works are created in the course of employment10 or, say, as components of much larger works,11 authors hold copyright. Why should they give up one iota more than absolutely necessary to be published? The short answer is that authors’ refusing to transfer all rights to publishers, at best, leads to wasted time and money. When publishers hold copyright, a single registration protects an entire composite work. Individual writers are, thus, spared the need to register separately — something most wouldn’t do anyway. Also, registration, particularly prompt registration, confers benefits that are foolish to ignore.12

      Although some argue that copyright is meaningless when digital piracy is so easy,13 there is evidence that the public respects such rights — particularly when their function is understood. A Boston Globe poll, conducted shortly before Strong’s talk showed that most people regard unauthorized copying as wrong.14

      Further, at least with regard to text and named works, it is often as easy to catch pirates as it is for them to be pirates.15 If that weren’t enough, under the recent NET Act,16 even noncommercial infringement, if willful, may be criminal.17

      That copyrights retain vitality in the cyberage and that publishers should hold them at the time of first publication, however, does not dispose of the question of who should hold them later. After registration, rights can be transferred back. Publishers may give authors such an option, retaining, for example, rights only to reprint back volumes or authorize inclusion in online databases such as Westlaw.18 Yet, writers who have the option of taking most of their rights back should rarely exercise that right.19

      With the possible exception of those who earn their living from writing as such,20 authors (and firms or universities that employ or otherwise fund them) benefit most from the widest possible dissemination of their work. To the extent that academic or professional journals keep copyright, this is facilitated. Those who wish to reproduce, say, for classroom use or inclusion in anthologies are more apt to approach publishers. To the extent that copyright is held by easily-found publishers, both dissemination of works and respect for copyright are fostered — and writers are spared much bother. In a related context, Laura N. Gasaway has aptly observed:21 “Copyright holders need to simplify the permissions process for use of their materials... for both nonprofit and for-profit users. Until this is done, the temptation to use the work without permission will remain strong. ”

      Further, publishers should not keep rights beyond those required for economic viability. More attention must be given to this: Sometimes reproduction is as likely to generate publicity and encourage submissions as to interfere with cost recoupment. For example, the editor of the New England Journal of Medicine is quoted as saying “We allow authors to freely use their material — with no charge, no penalty, nothing” for paper copies.22 However, he apparently restricts web access to paid subscribers.23 Why is that important? Are randomly distributed copies linked to curriculum vitae or course pages, for example, likely to erode sales of printed copies or paid access to the full contents of any given journal? It seems doubtful.

      Such basic issues seem repeatedly to be ignored. As even more recently described in Science, a blue ribbon panel has proposed that, insofar as no copyright exists in works of federal employees, copyright in articles describing work done under federal grants be retained by their authors.24 How one leads to the other is difficult to see, and how this would serve the committee’s apparent aim of facilitating dissemination is even less clear. Yet, an accompanying editorial25 that largely rejected the committee’s proposal did no better in identifying or addressing the core issues raised above.

      It would seem that publishers’ charging universities to photocopy their own faculties’ work is sparking needless controversy. Publishers who impose unnecessary restrictions on academics or their employers do themselves and others a disservice. It is difficult to imagine why authors, particularly ones who aren’t paid, should not usually have a royalty-free license to copy for students and colleagues -- either in hard copy or on the web. Publishers that fail to accord such rights without good, clearly stated, reasons seems ever more likely to disrupt a scheme that has heretofore benefitted authors, the public and publishers alike.

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Notes

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1       Copyright in the New World of Electronic Pub’g (June 17, 1994, Washington, D.C., online at J. Elec. Publishing <http://www.press.umich.edu/jep/works/strong.copyright.html>. [This and all following links were last visited Mar. 19, 1999.]
2       A Provost Challenges His Faculty to Keep Copyright on Journal Articles, Chronicle of Higher Education , Sept. 18, 1998, at A29.
3       Id.
4       Strong, supra note 1.
5       Online at <http://theatlantic.com/unbound/forum/copyright/intro.htm>.
6       Sept. 1998, at 57 (cover story, online at <http://theatlantic.com/issues/98sep/copy.htm>) (There is, of course, a serious problem with the title insofar as copyright does not protect ideas; see, e.g., 17 U.S.C. § 102(b).).
7       Round two of three exchanges, online at <http://theatlantic.com/unbound/forum/copyright/mann2.htm>.
8       Id.
9       See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); see also, General Elec. Co. v. Joiner, 118 S.Ct. 512 (1997). (discussing the appropriate standards for district court rulings on the admissibility of scientific evidence).
10       See 17 U.S.C. § 101 (1996) (“work made for hire”).
11       Id., para. (2) of the definintion of “work made for hire”.
12       See 17 U.S.C. § 412 (1996) (prompt registration is a prerequisite to statutory damages and attorney fees).
13       A situation responsible for the No Electronic Theft (NET) Act , Pub. L. No. 105-147, 111 Stat. 2678 (1997), and partly responsible for the Digital Millennium Copyright Act, Pub. Law No. 105-304 (1998). The former is discussed briefly, infra; the latter added, e.g., § 1101 (“Unauthorized fixation and trafficing iin sound recordings and music videos”) and § 1201 (“Circumvention of copyright protection systems”) to the Copyright Act. It is interesting that Congress was in such a rush at the end of 1998 that two Acts added a different, new § 512 to Title 17 of the U.S. Code. See Unfair Competition, Trademark, Copyright and Patent: Selected Statutes and International Agreements, 241-242.10 (Paul Goldstein, Edmund W. Kitch & Harvey S. Perlman, eds. 1999).
14       Strong, supra note 1. As described by Strong, the poll seems to have been conducted as a result of events leading up to United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994).
15       See, e.g. , Alta Vista (a web-based search engine) <http://www.altavista.com/>. See also, Eliot Marshall, The Internet: A Powerful Tool for Plagiarism Sleuths, 279 Science 474 (1998) (discussing an algorithm that is particularly helpful where more than direct copying is involved).
16       The NET Act was primarily sparked by the blatant instance of non-commercial piracy addressed in LaMacchia, 871 F. Supp. 535. The NET Act is codified in several sections of Titles 17 and 18 of the U.S. Code. See, e.g., H.R. Rep. No. 105-339 (1997) (online at <http://thomas.loc.gov/cgi-bin/cpquery/R?cp105:FLD010:@1(hr339):>.
17       NET Act § 2(b), amending 17 U.S.C. § 506(a).
18       See, e.g., Publication Permission Form for Risk: Health, Safety & Environment, available on request to author.
19       In nearly ten years, no one who has published in Risk has asked for a return of rights; see id.
20       See, e.g., Tasini v. The New York Times Co., 972 F. Supp. 804 (S.D.N.Y. 1997) [Rev'd 206 F.3d 161 (2d Cir. 2000); aff'd 533 U.S. 483 (2001) (publishers' rights to include free-lance work in, e.g., electronic databases requires explicit transfers from authors).]
21       Distance Learning and Copyright in the For-Profit Environment, ipFrontline, Oct. 1998, online at < http://www.ip.com/ipFrontline/issues/current/guest_col.htm>.
22       Guernsey, supra note 2.
23       Id.
24       Steven Bachrach et al., Who Should Own Scientific Papers? 281 Science 1459 (1998).
25       Floyd E. Bloom, The Rightness of Copyright, 281 Science 1451 (1998).

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Modified 6/6/99
URL: http://www.piercelaw.edu/tfield/cyberpub.htm


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