Word cloud for Copyright infringement
Image courtesy of Ms. Kassie’s Preschool

Editor’s Note: This post is by Bryn Geffert, the Librarian of the College for Amherst College:

Before me is an Excel spreadsheet of 342 rows and sixteen columns, containing 5,472 cells highlighted by nine different colors, all tracking the dispatch and receipt of 562 letters to and from more than 100 copyright holders.

On the shelf behind me, in a large, three-ring binder, reside unopened envelopes enclosing some of these letters, each with a yellow sticker reading: “RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD.” A note registering each sticker appears in column “J” of my spreadsheet.

Column G tracks invoice numbers.

Column E records payments now totaling $9,670.

Brown cells in my spreadsheet indicate “All efforts to contact publisher failed.” Pink cells indicate “Permission granted but fee required.”

Had Piet Mondrian branched into psychedelia on a grand scale, he might have produced something like this.

I know not how many hours I’ve spent creating, revising, and updating this monstrosity. Or how many hours I’ve consumed writing, addressing, and mailing the letters it catalogs. I do know, however, that to date I’ve paid student workers an additional $3,000 for help wrestling it into shape.

So what is it?

A record of my attempts to find and then pay copyright holders for permission to include excerpts of their work in a book I’m authoring for a large university press.

It is, in other words, the type of document a university press’s legal department requires to protect itself under a regime of copyright statutes and fears of violating Fair Use that collectively restrict the use of most material produced after 1923. Even when the author is dead. Or missing. Or has no idea whether she retained or signed away her rights. Or couldn’t care less. Or whose heirs wonder why I’m bothering them. Or whose publisher went out of business decades ago. Or who would love to see an excerpt of her work reprinted, but cannot, alas, convince her publisher of the value in this.

I concede that—however much I dislike this spreadsheet—it is necessary. I concede that my very good editors must defer to their very good lawyers, who must protect the interests of their university.

But I also submit that there is something absurd and dispiriting and counterproductive in all this rigmarole. And I suspect that my editors would, if pressed in private, cotton to a similar characterization of the system in which we all find ourselves.

When filing invoices and writing checks, I sometimes envy those working during what I image to be the halcyon days before the 1998 copyright statute—or the 1976 statute, or the 1909 statute, or the 1831 statute—when published material entered the public domain more quickly. I turn melancholy when inserting row #257 into my spreadsheet; when corresponding with the rights manager at another university press, whose hourly salary costs his press more during the time he spends helping me than the amount I end up paying his press; when being told by an author that “No, I apparently don’t own copyright in my work, and I’m afraid I don’t know who does”; and when begging my dean for permission to hire yet another student worker to archive hundreds of sent and returned letters.

So here I sit on a snowy day in western Massachusetts, beautiful white flakes outside my window, and a garish quagmire surrounding me in bits and bytes, papers and envelopes, folders and binders—none of it having anything to do with scholarship.

And here I dream about a world in which publishers adopt more capacious interpretations of Fair Use, or authors release their work under expansive Creative Commons licenses, thus obviating in many cases the need for Fair Use analyses at all.

I think wistfully about Article 1, Section 8 of the U.S. Constitution, which grants Congress the right 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.” And I think about how much better life would be if those rights were secured for reasonably “limited Times” only. Or, even better, secured and then immediately shared. How wonderful it would be to “promote the Progress of Science and the Useful Arts” as opposed to the bureaucracies that largely succeed in stymieing it.

I doubt whether any of us will live to see a copyright statute under which producers automatically secure rights for truly “limited Times.” Too many for-profit institutions have too much at stake. Even the indefatigable Lawrence Lessig despaired after losing Eldred v. Ashcroft (see “How I Lost the Big One”).

But other options exist.

One solution, of course, is for publishers to push the envelope on Fair Use. What is to prevent university presses from agreeing among themselves to adopt big-hearted and charitable understandings of a principle so insistently vague? Imagine if University Press A elected not to bill University Press B to reuse its work, and University Press B elected not to bill University Press A to reuse its work, because both shared a common, munificent understanding of Fair Use. Imagine if the AAUP adopted a reciprocal agreement common to all its members.

A more elegant solution for all involved—authors, publishers, parent institutions—is simply to publish under Creative Commons licenses designed to encourage reuse. I offer as exhibit A my own institution, which recently launched an entirely open-access press. Every item published by the Amherst College Press will bear a Creative Commons license. No author need ever ask Amherst for permission to reprint anything produced by its press so long as he or she abides by the terms of the license. No accounting department will collect permission fees from authors faithfully reproducing passages in their non-commercial work. No legal counsel need draft opinions on whether a scholar who reprinted x% of an Amherst publications sailed within the coastline of Fair Use’s safe harbor. For exhibits B, C, and D, see the University of California’s Luminos program, Open Humanities Press, and the Lever Initiative.

Before dismissing out of hand the longing and idealism that informs these new publishing ventures, academic publishers should rigorously examine the costs of current practice. To my knowledge, no broad study has ever attempted to assess the costs of extracting permissions. What do the salaries and benefits of permissions managers cost each university press? What do university presses pay lawyers to enforce their copyright claims? How much time do editors devote to helping their stable of authors obtain permissions from other presses? And what is the human cost of current practice: the cost of aggravation, frustration, and lost time? How many hours per publication must authors spend chasing rights-holders? How much better would scholarship be, and how much more productive would scholars become, if a comprehensive study were to conclude that the costs of the current system are just too high?


29 Thoughts on "Guest Post: Bryn Geffert On Securing Rights"

Hi Bryn,

Thanks for this guest post. I think it exposes an aspect of authorship of which many are unaware. It raises some thoughts I wanted to add:

First, given that Amherst College Press uses a CC BY-NC-ND license, and, assuming that you intend to sell copies of the book you’re writing, their open access program would not have any impact at all on your need to secure permission for reuse of material from their books. Since you would be making a commercial reuse of that material, you still have to go through the same process. So it strikes me that what you’re seeking here is less a move to OA than a call for copyright reform.

One potential solution would be compulsory licensing (https://en.wikipedia.org/wiki/Compulsory_license). For example, if I want to play your song on the radio, I don’t have to track you down and ask permission, instead I go to a licensing firm and pay a small pre-determined fee. This would greatly ease your efforts and reduce your costs. At the same time, because monetary rewards (even if small) are offered for reuse, it creates motivation for authors and publishers to make sure their works are registered and available.

Lessig also suggested a really interesting system that would offer relief here as well:
Basically, copyright would last 14 years, then, if you were still commercially exploiting that copyright, you would need to renew it for a nominal fee. A company like Disney could continue to renew their copyright indefinitely as long as they were exploiting the works in question, but everything not renewed (and centrally registered) would fall into the public domain.

And perhaps on a philosophical level, should an author/press be willing to sacrifice the return for their hard work in order to make your life easier? This article recently came out, discussing a Harvard professor who has made millions of dollars by authoring a best-selling textbook:
When asked if he would instead be willing to author an open source textbook, his answer was, “Would you keep doing your job if you stopped being paid?”

Is the goal of making things easier for permission seekers (who hope to earn money from their reuse of works) more important than rewarding the creators of those original works? If we remove financial return to authors and presses in order to help the financial returns and reduce efforts for secondary users of the content, does that impact the creation of original content in the first place? If an author knows that their work must be released OA if they’re going to publish with a university press, will this drive some authors to not bother creating it because they know the rewards may be minimal? Or will it drive authors with any sales potential away from university presses to commercial publishing houses instead?

David, I like your suggestions but am not sure that the questions in your final paragraph necessarily follow from the Mankiw example. Faculty get no professional reward for writing textbooks – indeed, many are discouraged from doing so – thus the only reason to undertake this is probably financial. Authors of scholarly monographs already have little financial incentive – royalties are low and for first books, may not be offered at all. So in that scenario, why not at least be discoverable, accessible and read?

That’s a really good point Alison–for different books and different authors, there are different motivations. But I can think of several examples of university presses that have one book that takes off out of the blue and basically funds the whole program for a year or two. Having one hit book can pay for a lot of books that you know won’t sell well but that are important for a field or for preserving the historical record. Perhaps my question is that if you’re going fully OA/CC BY and likely limiting the revenue a book can earn, do you eliminate these sorts of successes? (And believe me, the authors of those books are more than happy to accept their significant royalties)

Quote: “Basically, copyright would last 14 years, then, if you were still commercially exploiting that copyright, you would need to renew it for a nominal fee.”

An idea like that might have made sense twenty years ago when most books were printed once and became unavailable a few years later. It makes no sense today when POD and digital means that books can remain in print virtually forever and self-publishing means that author is often the publisher.

I’ll be blunt. What you’re describing easily be described as a scheme to ensure that the elderly and their spouses spend their last years eating cat food. Too strong? No, think of a professor who publishes a series of modestly selling textbooks over his career, assuming that they’ll provide added income for himself and his spouse as they age. With age often comes health issues and memory problems. He isn’t able to keep up with this 14-year renewal cycle, and his book falls out of copyright. Unscrupulous people—there’s never a lack of those—take over his revenue stream with their own editions. He and his spouse do end up eating cat food.

No, copyright should not be a constant renewal hassle for authors just to save someone else their own paperwork permissions hassle. That’s punishing a thousand authors to make life easier for one university press editor. My own solution is to break with Berne’s no-registration bias, require authors to file contact information (lessening one problem mentioned above), and have copyright terms either in years or life-plus that mean no filing of renewals. That would remove one of the absurdities of copyright law, requiring permission but having no provision for tracking down who to get permission from. It would also not be a burden on aging authors. One filing would take care of all their copyrights. The same contact web site would also allow authors to state what permissions they give or don’t give. I tried to get Google to develop such a system a few years back but nothing came of it.

States should also require that literary estates be formally probated in wills, even if it’s only boilerplate that doesn’t apply to most people. It is amazing the authors who fail to take care of that. The estate of John Steinbeck, for instance, fell into the residuals clause of his will. The result has been a series of legal battles. I know his daughter-in-law and it has been very frustrating for her.

There’s actually a more practical solution to the permissions problem, one used by a scientific publisher I sometimes work for. Insist that authors quote only enough of the textual material to justify the point they’re making and no more. That’s fair use and doesn’t need permission. Then get permission to use all graphics. You typically can’t fair use a graphic. It’s all or nothing.

And yes, the academic community should encourage statements on the copyright page stating what various uses are permitted without getting permission. I’m publishing reading textbooks in fields as varied as history (Lily’s Ride) to nursing (My Nights with Leukemia). Each includes a statement at the start that instructors can duplicate and use up to three chapters (they’re short) in their classes without seeking permission. That helps them deal with the uncertain ground between fair use and requiring entire books as textbooks. Copying more than that makes no sense anyway. The digital versions are only $2.99.

And yes, I’m a bit like that aging professor I mentioned. I’m approaching retirement, need the income my books will generate, and hate the bother of keeping paperwork current.

–Michael W. Perry, Inkling Books

Personally, I always thought that Lessig’s idea for keeping copyright through annual payments was his only good proposal. And why wait 14 years for this to kick in? A $50/year registration fee for a book-length work seems to me to be a pittance for having the power of the state behind one’s property claims. In theory, this could make copyright perpetual, giving new meaning to the Long Tail of Mickey Mouse.

But that could well be considered a “formality” under Berne Convention rules, which prohibit making copyright protection dependent on complying with such formalities.

Hi Michael,

To be fair, it wasn’t my plan, but was one proposed by Lawrence Lessig. The point wasn’t so much to ease the permissions process but instead the solve the problem of orphan works. The idea was that if no one cared enough about a work to bother paying $1 every 14 years, then that work would enter the public domain. Realistically the cat food-eating professor you describe above wouldn’t be doing the renewal himself unless his work was self-published. It would be handled by his publisher as long as they were continuing to sell the book.

I do agree with you that the lack of a central registry is a major problem with our current copyright system in terms of both licensing and orphan works. But even that fails when a publisher goes out of business or a copyright holder dies (as you note above). It’s no use having access to a disconnected phone number or the address of a building that has been torn down. Hence the need to periodically update that registry.

The idea is that works going into the public domain in a reasonable time is the default. If you’re commercially exploiting the work, then clicking a box on a website and paying $1 every few decades doesn’t seem all that excessive to me as compared to the price we’re currently paying in losses to our collective cultural heritage.

Actually, establishing a Book Registry was part of the proposed settlement of the suit that authors and publishers brought against Google, but when that settlement was rejected by Judge Chin, the Book Registry proposal disappeared also. (The person who was supposed to head the Book Registry, Michael Healy, now works for the CCC.)

All too many publishers, alas, not only do not give information about permissions on the copyright page but they include what have been called by critics “ad terrorem” copyright notices that warn everyone against copying anything without permission, which of course reads fair use right out of the law. Despite recommendations I and others have made for years about this, the practice of using such false notices continues.

Orphans works legislation already proposed basically solves the problem because it allows for use, after due diligence with efforts to locate an author, without incurring liability for anything other than a standard permissions payment if the author should come forward later.

A study of the cost and burden of copyright would certainly be interesting and perhaps even useful. The problem is that the cost is probably small compared to the total revenue generated by all of the copyrighted materials. If so then it is not a strong argument for changing the law.

As for licensing, I assume your book is intended to be sold. While I know little about this, does not that mean that an NC form of CC license would not help you? If you need a CC license that allows commercial use and you want these to be used universally then that is a big ask.

It is a niggling point, but I also imagine that books requiring hundreds of permissions are relatively rare.

Great post, Bryn, and beautifully written. I hope we see more of your contributions here.

I’ve long wondered about whether non-commercial use by a university press would help to clarify the fair use issue. In other words, if we published a piece of scholarship only in an open access format, would university lawyers agree that there was little if any risk involved? Is the fact that we’re charging for the scholarship working against us? We are nonprofits publishing primarily for educational use, but our products have prices, often very significant prices. If we gave the work away, would that change both the nature of the use as well as the market impact of the use, and sufficiently provide safe harbour for a fair use case? This is a question I intend to take up with our library’s copyright librarian and with our university’s lawyers.

Except that if you sell POD editions of your OA monographs, as we did at Penn State (where Tony previously worked), then you are engaging in commerce. If you don’t use the NC or ND tag in your CC license, your author has no ability to control any translation of the work, and any company anywhere can sell POD or other editions of your book and keep all the revenue therefrom.

Nicely put. The purpose of copyright has certainly been perverted by commercial interests. The story of the video documentary “Eyes on the Prize” (http://www.washingtonpost.com/wp-dyn/articles/A14801-2005Jan16.html) quickly comes to mind and prompts the question of how much has been and will be unavailable to our culture because of the copyright quagmire we’ve allowed to develop.
Academics receive non-pecuniary rewards (promotion, tenure, enhanced access to grant funding, etc.) and ePublishing has lowered costs significantly. Institutions of higher education are both the primary producers and consumers of scholarly publishing, especially in the humanities and social sciences. Dis-intermediating academic publishing to the point where documents can have zero cost to consumers (college and university libraries for the most part) would enable frictionless dissemination.
This is not so much a technical or organizational problem as it is a socio-political one. It won’t be easy. Cultural change is never easy.

Bryn will be interested to know that the AAUP adopted a Resolution on Permissions in 1961 that attempted to do what he suggests is needed, viz., create an inter-university press agreement on how permissions should be handled and under what circumstances permission might not need to be sought. It was a precursor to the STM agreement that Joan Marsh cites in her comment. The Resolution was for many years printed in the back of the AAUP membership directory, so anybody who still has an old copy of that booklet can find it there. Probably most people connected with the AAUP today have long since forgotten about it. I have a long memory.

There also exist centralized services like the CCC that have programs like Republication Licensing that might be of some help.

I would be interested in knowing more about what types of excerpts Bryn is being asked by his publisher to get permission for. University presses are in a strong position to assert fair use because the scholarly works they publish are the primary examples of where fair use applied, based on the Article 1 philosophy underlying the whole copyright system. University presses should not be shy to exercise those rights and should help educate university attorneys, who often lack copyright expertise, about how fair use works. At Penn State, for example, we used 35 movie stills in a book about black film without asking anybody’s permission, and our university’s attorney accepted our fair-use argument for doing so. Authors who feel they have a strong fair-use case should press back against their publishers on this question, and press staff should press back against university attorneys who may be too timid or risk-averse in these matters.

And of course we would all benefit if our representatives in Congress would actually do something useful and pass “orphan works” legislation that has been proposed at least since 2008.

Many of our authors would be grateful to have the assistance of student workers in seeking permissions, though I’ve never encountered a scholarly book that required quite so many as you describe.

Wait, Lisa, you worked at Penn State Press with me where we published art history books regularly. Many of them, with sometimes hundreds of illustrations, required many, many permissions. Admittedly, you worked in marketing and didn’t directly experience the process of getting permissions, which was mainly handled by our editorial assistants working with the authors. One of those assistants eventually created a handy database, like the kind Bryn uses, just for art books.

That was a long time ago, Sandy. Editorial assistants don’t request permissions for authors any longer. We simply don’t have the capacity to do so. The expectation is that the author will secure necessary permissions prior to submitting the finished manuscript for transmittal, which is what Bryn is doing. And if he’s working on an art history monograph, then yes, I suppose this would be familiar territory expected by having chosen the discipline. The larger point here is the conflation of open access and fair use.

It’s not that the editorial assistants themselves directly requested permission, but they had to make sure the authors they worked with did and they had to keep track of all the special provisions that often make working with art licensing vendors and museums a nightmare. If you think getting permissions for text is complicated, getting permission for reproducing artworks is a whole other dimension of complexity.

For general information, it should be noted that Sandy Thatcher does not speak in an official capacity for either Penn State Press, or the of the AAUP. These are his opinions alone, and while he does have a certain expertise in Copyright law and fair use, it has been many years since he was a full-time employee at a university press.

Meredith is quite right, and I have no authority to speak on behalf of the AAUP. I don’t believe I ever pretended that I did, except when I was president of the AAUP in 2007/8. But after retiring from Penn State in mid-2009, I have continued to work for a variety of academic publishers, including some university presses (among them, for a year, Meredith’s own), as an independent contractor acquiring books in various fields, and I have continued to be a member of the AAP Copyright Committee and the CCC’s board of directors as well as serving as a special advisor to the AAUP Copyright Committee and on the editorial advisory boards of Learned Publishing (until just recently) and the Journal of Scholarly Publishing. And I daresay no person in university press publishing, past or present, has written as much about copyright as I have. I also served on the search committee for the director of Amherst College Press, which may be pertinent in this context.


In my experience publishers appreciate fair use as much as authors do. Could you provide some more detail about what sort of book this is that requires permissions for “excerpts”? It seems strange to me that a university press would be so fanatical. Is this some sort of new paranoid trend? How would it be in a publisher’s interest to embrace fair use, since ever book they publish depends on it? There must be more to this story. Is it an anthology of previously published work? A reader of some sort?

Mary – I suspect he is referring to those monographs that feature or are a critical edition of, another parties creative work. So quotes from James Joyce are considered third party use and would/could require further permission beyond the publisher, such s the estate.

Thanks, Meredith. Criticism of another’s published work is a clear and obvious fair use. In fact, it is the quintessence of fair use and his publisher knows this. Such uses are the foundation of a university press’s business. They would be out of business if their authors needed to ask permission to criticize another published work. If that work is unpublished, well, that’s another matter, but I sense from what Brynn has written above that difficult author estates are not the issue here.

I’m with Lisa above: Brynn’s circumstances don’t ring quite true to me unless he’s compiling an anthology of previously published works, many of which are old, and for which he’s required to request permission to reprint. What he’s illustrating is the orphan works problem, as Sandy indicates in his response, but Brynn’s construing it as if it is a problem created by a publisher’s unreasonable legal department.

But, again, I’d like more details in order to understand better exactly what the problem Brynn is having. I’m surprised that he was not advised about the difficulties and expense he would face when he decided to take on the project. They were entirely foreseeable. That doesn’t mean the orphan works situation is proper or even tolerable, but his outrage seems a bit naive.

Also, if it wasn’t obvious, I had meant to write above: “How would it be in a publisher’s interest NOT to embrace fair use?”.

Mary: I’m sorry to say that I can think of a variety of situations in which a university press might not be in a position to fully exploit fair use:

(1) Fear of litigation may prompt excessive caution

(2) A press may be constrained by the requirements of its institution’s counsel, who sometimes are not sufficiently versed in copyright law

(3) There are authors and artists whose estates are known for their extraordinary aggressiveness in harassing publishers who don’t clear permissions even when fair use may be claimed (so, not the same as my (1), since the caution in this instance is not excessive)

(4) In the case of images, the rights-holder sometimes is the only source of the high resolution image necessary for reproduction, in which case permission becomes a de facto prerequisite to obtaining the image

I think it’s fully fair to ask whether university presses could do more to make incremental improvements over the status quo, but I don’t think we’re in a position to deliver the silver bullet Bryn (rightly, imho) laments in his elegant column.

Peter Berkery, Executive Director
Association of American University Presses

Thanks to Bryn Geffert for stimulating another intriguing set of discussions, and to Peter for his helpful summary comment. However, may I gently remind readers of the SK that ‘Fair Use’ is not a concept necessarily recognised in jurisdictions other than those of American states, and discussions of this kind are often bedevilled by a lack of understanding of the laws as applied in (e.g.) England (where the rather different concept of Fair Dealing has always been dominant) or Germany, where an altogether different author-moral-rights-centric convention has historically been determinant. These distinctions matter, as by definition very few scholars beyond those working on American themes and topics are seeking third party permissions from entities based in the US alone. Which isn’t to say that we couldn’t and shouldn’t make greater progress towards the end that Bryn seeks, but that ultimately any such solutions will need (much) more global or at least transatlantic purchase if they are to work in practice.

A disclaimer (given the exchanges above). At the end of last year I stood down as Managing Director of the academic division of Cambridge University Press, and am now ‘pre-tired’, working with a number of University Presses including Yale, and as the Academic Correspondent for the Independent Publishers Guild here in the UK. But am emphatically writing in no capacity other than mine own!

Richard is absolutely right, and the complexities he points out mean that sometimes a publisher will need to restrict the territory in which a new book can be sold for just this reason. That occasionally happened for Penn State when we published an art book containing illustrations of artworks that are in the public domain under US law but whose creator’s “moral rights” under European law, which are perpetual, made it risky to publish the work in the home country of that artist.

Comments are closed.