Comments on: Humanities Hobbled by Copyright Law http://madisonian.net/2007/12/22/humanities-hobbled-by-copyright-law/ a blog about law, tech, culture, and related things Sat, 11 Feb 2012 02:59:42 -0600 http://wordpress.org/?v=2.8.4 hourly 1 By: C.E. Petit http://madisonian.net/2007/12/22/humanities-hobbled-by-copyright-law/comment-page-1/#comment-228322 C.E. Petit Sun, 23 Dec 2007 16:17:57 +0000 http://madisonian.net/archives/2007/12/22/humanities-hobbled-by-copyright-law/#comment-228322 I'm not entirely certain that the cause is quite so clear as Professor Pasquale implies. It is not the "archaic copyright system" per se, but a combination of archaic publishing-industry contracting practices and the work-for-hire doctrine, that seems to be at the root of what's going on. (N.B. I was in-house at a publisher with an extensive academic operation, so I've seen the permissions process up close and impersonal.) The combination looks something like this: * The US WFH doctrine allows publishers a default right to assert control over contributions to a collection, anthology, or serial... presuming that the other prerequisites to WFH treatment are met. * Publishing industry contracting practices greatly extend WFH treatment beyond the statute's scope (either the 1909 Act or the 1976 Act, take your pick -- it's the same problem). Most academic publishing contracts ARE NOT negotiated, but are essentially boilerplate, particularly for journals and for those seeking tenure. Most authors -- particularly academics -- are not sophisticated enough to spot the rights grabs, let alone the parts that are not enforceable (e.g., claiming an article as a WFH when it was not commissioned). If the publishing industry would use the correct terminology -- a publishing agreement is a license, not a sale, for works that do not PROPERLY fall within WFH, particularly in light of sections 203 and 304(c) -- this would be less of a problem. However, that's not going to happen any time soon, because it's not in the industry's immediate financial interest... even though it IS in the industry's longterm economic interest. I'll leave my muttering about "the tyranny of the quarterly earnings report" for another time. --CEP I’m not entirely certain that the cause is quite so clear as Professor Pasquale implies. It is not the “archaic copyright system” per se, but a combination of archaic publishing-industry contracting practices and the work-for-hire doctrine, that seems to be at the root of what’s going on. (N.B. I was in-house at a publisher with an extensive academic operation, so I’ve seen the permissions process up close and impersonal.)

The combination looks something like this:

* The US WFH doctrine allows publishers a default right to assert control over contributions to a collection, anthology, or serial… presuming that the other prerequisites to WFH treatment are met.

* Publishing industry contracting practices greatly extend WFH treatment beyond the statute’s scope (either the 1909 Act or the 1976 Act, take your pick — it’s the same problem). Most academic publishing contracts ARE NOT negotiated, but are essentially boilerplate, particularly for journals and for those seeking tenure. Most authors — particularly academics — are not sophisticated enough to spot the rights grabs, let alone the parts that are not enforceable (e.g., claiming an article as a WFH when it was not commissioned).

If the publishing industry would use the correct terminology — a publishing agreement is a license, not a sale, for works that do not PROPERLY fall within WFH, particularly in light of sections 203 and 304(c) — this would be less of a problem. However, that’s not going to happen any time soon, because it’s not in the industry’s immediate financial interest… even though it IS in the industry’s longterm economic interest. I’ll leave my muttering about “the tyranny of the quarterly earnings report” for another time.

–CEP

]]> By: Kevin Mark http://madisonian.net/2007/12/22/humanities-hobbled-by-copyright-law/comment-page-1/#comment-228282 Kevin Mark Sun, 23 Dec 2007 09:26:11 +0000 http://madisonian.net/archives/2007/12/22/humanities-hobbled-by-copyright-law/#comment-228282 Ever since I read 'the long tail' which says that 90% of books sell less than 1000 copies and having heard about how academics give their works and copyright to academic presses, I wonder why no one has gone to self-publishing with something like lulu or why someone has not created a small press for academic works that does not 'steal' authors works the author wanted to have wide distribution at a reasonable cost and simply amass tons of papers and charge tons of dollars for. It reminds me of the riaa-like model. And some artists are now able to exists outside of that economy of total right transfer and make better deals. Ever since I read ‘the long tail’ which says that 90% of books sell less than 1000 copies and having heard about how academics give their works and copyright to academic presses, I wonder why no one has gone to self-publishing with something like lulu or why someone has not created a small press for academic works that does not ’steal’ authors works the author wanted to have wide distribution at a reasonable cost and simply amass tons of papers and charge tons of dollars for. It reminds me of the riaa-like model. And some artists are now able to exists outside of that economy of total right transfer and make better deals.

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