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Humanities Hobbled by Copyright Law

While scientists are pioneering exciting new modes of cooperation, humanities scholars are increasingly tripped up by an archaic copyright system. Great schools of the recent past may be doomed to an ownership pattern fractionated enough to frustrate even the most persistent assembler. Mark Bauerlein describes one editor’s struggle to put together an anthology of the “new critics:”

New Criticism will carry on only if it survives in the classroom, which is to say only if instructors have a handy anthology to assign. They’ll get it in early 2008, when Ohio University Press, in partnership with Swallow Press, issues Praising It New: The Best of the New Criticism. . . .

It almost didn’t happen. And the reason why raises broad questions about how humanities fields progress. . . .

The works [in the anthology] no longer have commercial value, but many of them remain in trade-press hands. That is a problem for professors who still value them, who not only face the disregard of colleagues but also the copyright practices of publishers. . . .

[The anthology editor] asked Harcourt Inc. for permission to reprint an essay by Blackmur entitled “A Critic’s Job of Work,” and Harcourt came back with the outlandish price tag of $2,350. . . . Blackmur’s essay has no commercial value, and, as far as he knew, no for-profit press planned to reissue Blackmur’s works. The Ohio press is small and will be happy if the volume sells a few hundred copies a year. . . .

I’ve lamented this situation in a post on art history publishing, and another on writers getting “priced out of the canon.” Here’s a bottom line from Bauerlein:

[P]rofessors owe respect to the past of their own fields. It is up to them to safeguard intellectual history, to keep the pressures of money and fashion at bay. The actions of a commercial press here demonstrate that if professors take their field’s past for granted, or if they regard that past as an inferior practice, it will fade and disappear. They should realize that, for all the adversarial postures toward the market and bourgeois values, their “presentism” . . . combines all too smoothly with the bottom line of the corporations who own their forebears. . . . [P]rofessors need to stir up a counterforce. If they won’t respect their predecessors, why should anyone else?

Meanwhile, Ohio State U. P. has a DIY venture in the works that may pave the way for more affordable access to out-of-copyright works:

Frustrated by high textbook costs and hoping to make a little pocket money, the English department at Ohio State University recently put together its own two-volume textbook for lower-level British surveys. Faculty members and graduate students “edited it from the ground up,” says Richard Dutton, the department’s vice chair. A local copy business handled the publishing, and because the copyright had expired on most of the selections, permission costs were low.

The department expects to earn a couple of thousand dollars from the venture, as well as points from OSU’s administration. Should the big publishers worry about such grass-roots competition? “I can’t be sure if this is linked to our innovation, but the local bookshops are selling the Norton anthology at a discount,” Mr. Dutton reports in an e-mail message to The Chronicle. “I do know that the local representative of Longman … has been sending alarm bells to her head office.”

And, he adds, voicing a suspicion shared by many, “the secondhand market is, of course, the real reason why the big publishers have to keep revamping their offerings.”

Is frequent revision to anthology publishers what proprietary pincites are to West?

2 thoughts on “Humanities Hobbled by Copyright Law”

  1. 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.

  2. 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.


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