EPUBs are an experimental feature, and may not work in all readers.

With the advent of powerful networked desktop computers and the World Wide Web, authors have for the first time acquired control of the technology for scholarly communication. That radical change prompts the question of how authors have in the past fared under copyright law, and how they might fare in the future.

Anglo-American copyright law has always attempted to regulate the interests of three parties: the author, the publisher, and the public. Before there was a formal copyright law, royal patents granted to the Stationer's Company created printing monopolies and facilitated state censorship. The concerns of authors were hardly considered. The 1710 Statute of Anne, our first formal copyright law, left printers the dominant power in relations between printers and authors. What is most remarkable about the Statute of Anne is that the state's interest began to shift from censorship toward the creation of a public domain for intellectual property. For much of the rest of the eighteenth century, printers and publishers were in court trying to protect their traditional monopoly powers against the incursions, as they saw it, of the public domain. The issue was not finally decided until the House of Lords' 1774 decision in Donaldson v. Beckett, which affirmed the public domain created by the 1710 statute by denying common law claims to the perpetual protection of intellectual property. That decision came just two years before the publication of Adam Smith's The Wealth of Nations, with its principled argument against monopolies, and fourteen years before the first article of the U.S. Constitution made the public interest in promoting knowledge the animating principle of the new nation's copyright law. [1]

The interests of authors were often piously advanced in the eighteenth century debates about copyright, but in fact those interests counted for little.[2] Not the legal, but the commercial position of authors began to change only in the nineteenth century with mass produced paper, mechanically powered printing, fast-widening literacy, and the professionalization of writing. While authors remained dependent on those who managed printing and publication, the democratized market for reading gave authors a significant economic role unlike any they had had before.

That condition persisted until the end of the present century, through two major rewritings of the U.S. copyright law in 1909 and 1976. The new communication technologies of recorded sound, film, and the broadcast media vastly broadened economic possibilities for authors, but did not fundamentally transform their dependence on publishers. Inexpensive offset printing presses and the photocopier machine began to put the technologies of publication in the hands of authors. But it is only with the arrival of the desktop computer and creation of powerful telecommunications networks that authors have quite generally been able to free themselves from their historic dependence on publishers.

But do authors actually seek such freedom? Do they wish to exercise the rights granted to them in the Constitution but heretofore usable only in association with publishers?

There is evidence that academic authors — the authors with whom all scholarly communication begins — do not consistently seek such freedom.[3] They have few of the direct financial interests in their writings that have driven the economic repositioning of most other authors since the beginning of the nineteenth century.[4] Academic authors depend for their livelihoods primarily on the colleges, universities, and research laboratories that employ them, not on their writing. With a few exceptions, such as textbook writers, academic authors believe their copyrights have barter value only, value important for building scholarly reputation, winning tenure, and securing time and money for research.[5] The barter economy has worked well for researchers, leaving many academic authors deeply suspicious of change.

Currents of change are nonetheless making themselves felt. There are at least four arenas where academic authors are beginning to seek control over scholarly communication.

  • First, the electronic pre-publication of research findings constitutes an important break with established practices, as there is no longer any limitation, practically speaking, on who can see the pre-print. Two values motivate pre-publication services, the first of which is timely communication. The second is even more significant and can best be expressed negatively, in the willingness of some authors and readers of pre-prints in some disciplines to disengage first publication from editorial vetting, including peer review.[6]

  • Second, emerging knowledge environments, in which the literature of an entire discipline or subdiscipline is brought together digitally for convenient use, will challenge traditional publishing practices even more fundamentally. PubMed Central is potentially the most potent exemplar of a knowledge environment. As authors come to see PubMed Central as a preferred point of access for their work — that is, as a prestige conferring venue as well as a highly convenient one — they will certainly discover the value of retaining control of their copyrights as a means of securing the greatest possible flexibility in publishing.[7]

  • Third, academic authors often wish to repurpose their publications and sometimes find themselves stymied by the publishers to whom they have surrendered their copyrights. Authors are frequently surprised at their inability to use their own writings in teaching and are regularly frustrated by the costly and time-consuming procedures involved in using material in course packs and library reserves. Increasingly, academic authors wish to post their writings to their own personal or laboratory Web sites and are offended when publishers object to that as an infringement of copyright.

  • Fourth, the now booming business of distance education inherently casts intellectual property into tangible form and thereby creates copyrighted material in a manner that traditional, verbal classroom instruction usually does not. Faculty are increasingly sensitive to that fact and wish to protect their own copyright interests in distance education.[8] As faculty authors come to understand the value of their own intellectual property in distance education, they will grow more attentive to their rights in other forms of scholarly communication, including those involved in traditional publishing.

Of course, our experience of powerful desktop computers and a robust communications network is less than a decade old. Given the rapidity of change during this decade, it may be foolhardy to talk about trends. But everything we see, particularly in the consumer technology market, aims to increase the individual's control over his or her information environment. Publishers acknowledge those developments by their keen interest in countervailing encryption and other content-protection technologies.[9] With so much in flux, and with such different values in contention, it is important to understand the essential issue of ownership control that engages both authors and publishers involved in scholarly communication. What really is at issue here?

Some publishers are granting new rights to academic authors who want to secure more value from their writing. Such publishers genuinely wish to understand authors' needs and to accommodate them where doing so poses no significant threat to the business of the publisher.[10] Indeed, one might hope that the right combination of self-interest and goodwill on all sides could produce a new generation of copyright-transfer agreements that would allow publishers to continue to control copyrights but maximize values for each party.

The happy resolution imagined here focuses only on the immediate situation and obscures the more fundamental question of imperfect foresight, or prescience, involved in the long-term control of scholarly copyrights. I do not doubt that an author and publisher can strike a copyright agreement that is largely responsive to the interests of both at the time they agree. But how likely is that agreement to remain responsive to their situations as little as five or ten years from now? We have seen major changes wrought by technology and the marketplace for education in the last decade. We now confront the need to make significant adjustments in many activities, including scholarly communication, as a consequence. Why will even the near-term future be different? Given that we are unlikely to foresee the future accurately, one must ask who should bear the risks of imperfect prescience. Copyright ownership provides important leverage on managing change and uncertainty. Should that ownership advantage lodge with the author or the publisher?

"It is worth recalling the longstanding common-law argument favoring authors' rights"

I think the case for lodging those ownership advantages with the author is compelling. But let me begin by considering the scholarly journal publisher who, I believe, has inherently less need to be prescient.[11] With regard to established journal titles, publishers collect virtually all of their income — in the form of annual subscription and license fees — in advance of incurring most of their operating costs. Such publishers have been able to impose substantial increases to capitalize technology change. Moreover, when such publishers encounter business difficulties that delay the appearance of journals, they suffer no particular penalty for their business failure. Some commercial publishers of scholarly journals, in addition, earn very substantial profit margins. In that internationally based business, the major risks are exposure to currency fluctuations and cost increases for such things as paper and postage.[12] But even those risks can be managed from year to year. So at present the publishers of established scholarly journals run very few commercial risks that extend for more than one year.

Publishers do not need to own copyrights to maintain most of the advantages of their position. A copyright-management regimen that limits the publisher's monopoly to first publication and enables the publisher to earn reasonable returns on that activity will ensure the viability of the scholarly journal.[13]

If the commercial conditions of publishing established academic journals do not require much prescience, or long-term monopolies, what need do authors have for the long-term control of their copyrights? I have already identified four arenas of rapid change in scholarly communication and education where the past failure of academic authors to retain their copyrights is now working against them. The problematic aspects of those areas of current practice would largely be remedied if authors retained their copyrights. Looking beyond those or other specifics to the more general principle, one must acknowledge authors to be the essential creative agents of scholarly communication. Authors have the keenest need to work at the innovative outer boundaries of scholarly communication, where foresight or prescience is least reliable, because it is there they have the richest opportunity to change the actual substance of scholarship. We have seen the traditional map of scholarship transformed by new theories of knowledge, by deeply interdisciplinary study, and by new disciplines. In such a fast-moving environment, it will surely be important for the creators of scholarship to assert their ownership of their work, to help ensure the future vitality of their work and of the collective enterprise of scholarship.

Today, the need of authors to maintain the fullest measure of control over their own work is particularly evident in distance education, where faculty are determined to protect the integrity of their teaching activities by retaining their own copyrights. One might speculate that as more and more faculty put multimedia technology to work in their classrooms, they will see how much easier it would be if they had barrier-free access at least to the work of fellow faculty members. That could be achieved if faculty retained control of their own copyrights and managed them, wherever appropriate, in accord with the gifting culture fundamental to most scholarship and outside the commercial culture necessary only for first publication. Just as current interest in distance education and technology-assisted instruction indicates the value of academic authors retaining their own copyrights, so is it likely that other circumstances now difficult to foresee will, in a fast-moving technology environment, strongly reinforce the value of authors having the widest possible latitude in managing their copyrights for their own teaching and research purposes. Such a stance would accord fundamentally with the motive force of all Anglo-American copyright law since 1710 — a motive enshrined in the U.S. Constitution's language about the "power . . . to Promote the Progress of Science and useful Arts."[14]

If academic authors actually retained the ownership of their copyrights, the problematic aspects of the four areas of current practice described above would largely be remedied. That would be especially so if academic authors, in retaining their rights, took the additional step, where appropriate, to ensure the widest possible, barrier-free access to their work after first publication. The kind of copyright stance contemplated here might be established by a footer of the following sort, to be published with each article: "The Author grants to the Publisher, [publisher's name, e.g., Elsevier Science Ltd.], exclusive first publication rights for the Work, [name of article], and further grants to the Publisher a non-exclusive license for other uses of this Work for the duration of its copyright in all languages, throughout the world. The Publisher shall include a notice in the Work saying, '© [author's name].' Readers of this article and libraries may copy it without the copyright owner's permission, if the author and publisher are acknowledged in the copy and the copy is used for educational, not-for-profit purposes, including preservation.'"

Some journals have adopted even less formal means by which the author retains copyright. The new journal Evolutionary Ecology Research is a model of directness in advising authors that "You own the copyright." The Journal of Electronic Publishing similarly advises that "works included in the JEP are the property of their authors and are used by permission. Since the rules for use of published electronic documents are still somewhat undefined, we insist that readers apply the same principles of fair use to the works in this electronic archive that they would to a published, printed archive."[15]

There are, then, a variety of ways by which academic authors might retain ownership of their copyrights. The recent flurry of interest in distant education and the determination of many faculty to protect the integrity of their teaching roles by retaining their own copyrights in instructional materials exemplify technology-driven developments that were not widely foreseen. Without question, academic authors will in the future wish to work with publishers and others — as they do today — to secure the widest possible dissemination of their work. The argument advanced here is not that such partnerships are unlikely or unnecessary. It is rather that faculty will be able to frame those partnerships and act within them most effectively if they, rather than publishers, have control over and barrier-free access to the accumulating body of scholarship on which future teaching and research will build.

While my argument for authors' rights rests on the social policy voiced by the Constitution and the statutes based on it, it is also worth recalling the long standing common-law argument favoring authors' rights. As we have seen, the contention between common law and statutory law in copyright was decided largely in favor of the latter in the eighteenth century. But the influence of common law has never quite disappeared, as is evident, for instance, in the termination right provided in the 1976 law. Under that law, authors have the inalienable right to terminate the assignment of copyright after thirty-five years, however it may have been originally assigned. That right — which is quite actively exercised — clearly implies an enduring ownership of the work by the author, regardless of any copyright assignment.[16] Should authors, with some claim to inalienable natural rights in their own work, be dependent on what publishers are willing to concede to them? In my observation, most academic writers have an imperfect understanding of the copyright statutes, but regularly act in accord with an inalienable common law ownership right they believe, or wish to believe, they have.

The invention of moveable type in Europe five hundred years ago first empowered printers and publishers. For three hundred years, authors were a marginal factor in the commerce of the printed word. It is only in the last two hundred years, with the emergence of a mass market for the printed and later the recorded and broadcast word, that authors emerged as a significant economic force in that commerce. The development of digital technology and powerful networked desktop computers brings to such commerce a potential as revolutionary as that of moveable type. And nowhere more than in scholarly communication does the new technology promise to enable the author to assert his or her primacy. Where authors retain their copyrights, we may even be able to reconcile some of the traditions of common and statutory law that have rubbed so uneasily against one another for the last three hundred years. Today, authors' rights are asserted only weakly, if at all, in scholarly communication, especially in the publication of scholarly journals. We now have the technological power to change that. Exercising that power and reaffirming authors' rights will, I predict, result in a system of scholarly communication that is much more responsive to the noncommercial intentions of its creators and much more robust in advancing knowledge. It is, finally, the broadly educational purpose that most fundamentally motivates academic authors. Such authors should — and, I believe, soon will — begin to adopt copyright-management regimens that give full scope to the animating principle of their scholarship.



Scott Bennett is the Yale University Librarian. He received his A.B. degree from Oberlin College in 1960 and his Ph.D. from Indiana University in 1967. He completed his M.S. in library science at the University of Illinois in 1976. Dr. Bennett has published numerous papers on publishing and intellectual property, publishing history, textual editing, bibliography, preservation, and other topics. You may contact him by e-mail at scott.bennett@yale.edu.


© Scott Bennett. Readers of this article and librarians may copy it without the copyright owner's permission, if the author and publisher are acknowledged in the copy and the copy is used for educational, not-for-profit purposes, including preservation.


Notes

1. See L. Ray Patterson and Stanley W. Lindberg, The Nature of Copyright: A Law of Users Rights (Athens, Ga.: University of Georgia Press, 1991), chapter 3.return to text

2. "Statutory copyright has long been only nominally a right of the author. The epithet 'author's right' itself was a fiction from the start, because authors, by assigning copyright to publishers, assigned their entire interests in the works. . . . Copyright as an author's right was and continues to be a fiction." Patterson and Lindberg, 45-46.return to text

3. "What Authors Want" (May 1999), a study conducted on behalf of and published by the Association of Learned and Society Publishers (Worthing, West Sussex BN13 3UU), found that most academic authors (56.5 percent of the respondents to a large-scale survey of researchers publishing in learned journals) do not feel that existing copyright policies impose unreasonable limits on what they can do to disseminate their work; indeed, only 15 percent of the respondents said they did feel unreasonably limited. Nonetheless, when asked about transferring copyrights to publishers, 61.4 percent of the respondents thought copyrights should remain with the author, while 38.1 percent are content to transfer copyright to the publisher, 30-32. There was significant variation from discipline to discipline in answers to the latter question.return to text

4. Freelance authors and others financially dependent on their writing are quite attentive to protecting their copyrights in the emerging digital marketplace. The September 1999 Tasini vs. New York Times decision of the Second Circuit Court of Appeals is notable in protecting magazine journalists, who have retained their copyrights, against publishers who wish to republish their writings without further compensation in such "collective works" as the NEXIS electronic database. See: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-201return to text

5. Indeed, 51.9 percent of the respondents to the "What Authors Want" survey agreed with the statement, "Scholarly publishing is changing its function from knowledge dissemination to the building of an authors resume/CV or reputation," 40.return to text

6. See the account of e-print publication by Declan Butler, "The writing is on the web for science journals in print," Nature, 397 (21 January 1999), 199-200: "The previously antagonistic attitude of many publishers to the electronic prior publication of articles has become more liberal over the past two years. Publishers that refuse a priori to publish articles that have been posted on e-print servers — such as the New England Journal of Medicine — appear increasingly isolated. In contrast, over the past two years, Nature, the Journal of Neuroscience and several other journals have stated that posting on e-print servers does not a priori constitute prior publication, but is rather a legitimate means of communication between researchers."return to text

7. The 5 May 1999 proposal for PubMed Central (then named E-Biomed) affirmed that "copyright to reports posted in E-Biomed would be retained by the authors." A 20 June 1999 addendum to the proposal expressed a preference for authors retaining copyright but observed that the matter "could largely be left to individual editorial boards to resolve," possibly within some new fair use regimen. The 30 August 1999 invitation to participate in PubMed Central notes, more simply, that "copyright will reside with the submitting groups . . . or the authors themselves, as determined by the participants." NIH sensibly acknowledges that authors wishing their work to appear in PubMed Central will need to make their own copyright arrangements with publishers for that purpose. See "PubMed Central: An NIH-Operated Site for Electronic Distribution of Life Sciences Research Reports," http://www.nih.gov/news/pr/aug99/od-30.htm and Vincent Kiernan, "NIH Proceeds with On-Line Archive for Papers in the Life Sciences," Chronicle of Higher Education, 10 September 1999, A33. The power of authors' wishes in shaping copyright regimens is suggested by William S. Strong's account of the MIT Press's policy for managing electronic journal rights, in "Copyright in a Time of Change," Journal of Electronic Publishing, 4 (March 1999).return to text

8. See, for instance, the American Association of University Professors' new policy statement on "Distance Education and Intellectual Property," Academe, 85 (May-June 1999): 41-45, and the Association of American Universities 13 May 1999 report on "Intellectual Property and New Media Technologies: A Framework for Policy Development at AAU Institutions," http://www.aau.edu/reports/IPReport.html See also Goldie Blumenstyk, "A Company Pays Top Universities to Use Their Names and Their Professors," Chronicle of Higher Education, 18 June 1999, A39, 41.return to text

9. One of the most contentious issues in the Digital Millennium Copyright Act, left unresolved when it became law in October 1998, was the protection sought by publishers in using encryption technology to control access and use (including fair use) of copyrighted material. See Arnold Lutzker, "Primer on the Digital Millennium: What the Digital Millennium Copyright Act and the Copyright Term Extension Act Mean for the Library Community," [formerly http://www.arl.org/info/frn/copy/primer.html].return to text

10. Consider, for instance, the copyright transfer agreement used by the American Physical Society, which grants to authors rights for a wide variety of repurposing activities, including teaching and postings on personal Web sites and e-print servers. See ftp://aps.org/pub/jrnls/copy_trnsfr.ascreturn to text

11. Book and journal publishers are situated quite differently as regards the risks they assume. I focus here on journal publishers because the scholarly monograph — for all its importance to scholarship, especially in the humanities and social sciences — represents a fairly small share in the market for scholarly publishing.return to text

12. New journal starts, of course, pose some significant commercial risks.return to text

13. The American Physical Society in fact considered adopting an agreement that left copyright with authors but secured to APS a nonexclusive right to print, publish, reproduce, distribute, post on line, and publicly perform and display the authors work. APS decided against adopting such a policy because such a nonexclusive license might be unenforceable in countries outside the United States, given the reference in the license to unspecified publishing technologies as yet uninvented. Author's correspondence with Martin Blume, Editor-in-Chief of the American Physical Society.return to text

14. U.S. Constitution, Article 1, Section 8, Clause 8. Steven Bachrach et al., argue that "authors of scientific works based on government supported research should be free to distribute those works as they see fit, via journals, electronic postings, and other new modes that may appear," in "Who Should Own Scientific papers?", Science, 281 (4 September 1998): 1459. Stanley Chodorow calls for "the creation of a new market for scholarly information . . . [that] would enable scholars and universities to distribute information among themselves in a system affected by costs instead of profits" in "The Faculty, the University, and Intellectual Property," Journal of Electronic Publishing, 3 (March 1998).return to text

15. See http://www.evolutionary-ecology.com/advice/AdviceFrames.html and [formerly http://www.press.umich.edu/jep/copyright.html]. Further information is available on the "Authors' Licenses" page of the Liblicense Web site, which offers an exceptionally wide variety of information about licensing digital information: http://www.library.yale.edu/~llicense/index.shtml The newly published study by the National Research Council observes that "the digital environment will continue to bring significant and unpredictable consequences for content creators" and calls for a two-year study to understand better how content creators might position themselves in that environment. See The Digital Dilemma: Intellectual Property in the Information Age (Washington: National Academy Press, 1999), 6-21 in the prepublication copy. For further information about this important report, see: http://books.nap.edu/catalog.php?record_id=9601return to text

16. See Section 203 of the Copyright Act of 1976, and Patterson and Lindberg, 169.return to text