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?