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This paper is an update of a presentation to the Global and National Information Infrastructures Conference of the International Association of Scientific, Technical and Medical Publishers in 1994.
Adam is reported to have said to his mate, on being expelled from Eden, "Eve, we live in a time of change." I fear that some publishers believe the analogy to be too close to the bone. As they see it, leaving the age of print is indeed leaving a Garden of Eden for a world that, though unknown, can never be as good as what is left behind. I understand but do not share that pessimism, for reasons that I hope to make clear.
Let me say that I have no ax to grind and no ox that can be gored. I represent publishers (I am even married to one), but I also represent authors and I am an author myself. And, as if to complete my neutralization, the best man at our wedding was a librarian. As a result I approach this topic without preconceptions.
What I wish to give are some observations about the role of copyright in the new networked world, and about the role of scholarly publishers. If my paper has any key notes, they are "embrace change," "don't overreach or overreact," and "educate the public."
There is a lot of change to embrace. The Internet promises — or threatens, in some people's view — to change fundamentally what we mean by a "book" or a "journal," even to create new publishing products that as yet hardly even have a name. And the global information infrastructure promises or threatens to change fundamentally the relationships among publisher, author, and reader. For 500 years publishers have had complete control over the appearance and location of their product, over how it is distributed and used, and over its production. And the relationship among author, publisher, and customer has been a fundamentally linear and unidirectional one — if you will, a trickle-down relationship. In a networked world, none of that can be counted on. Let me give a simple example. A client of mine, The MIT Press, publishes several electronic journals, the first of which to hit the Web was The Chicago Journal of Theoretical Computer Science, in 1994. Responding to prodding from the editors, the Press made it possible for every subscriber to take the basic file and download in whatever typeface he or she might choose.
That was a shocking thing: the publisher had voluntarily given up control over the physical appearance of the hard-copy product. Some other publishers complained bitterly to the Press about that practice, as if the Press were somehow a Quisling for making its product conformable to the tastes of the reader. Now, of course, the practice has become commonplace.
The Press also took the then-unusual step of publishing the journal on an article-by-article basis. Contributions were made available on-line as they emerged from the editorial process, rather than being bunched up as one waits for an arbitrary publication date to arrive. The contents of the journal were made available to readers in a more timely fashion, and of course, readers did not access more than they wished to read at any given time.
In both of those respects, what the publisher did was to take maximum advantage of the flexibility of the medium. Since then most of us have come to accept that electronic publishing should not be merely, to paraphrase von Clausewitz, print carried on by other means. It should express the full potential of the medium as, indeed, print publishing has done for the print medium over the centuries.
Allowing the reader to select his own typeface, and publishing material as soon as it is ready, are examples of how we have embraced the future. Without sacrificing the rigorous intellectual standards that drive the journal, publishers today take advantage of the enormous flexibility of the Internet medium to make the journal user-friendly in a way print cannot achieve. I say that with some sadness, for I love and revere print as much as anyone. But we are in the process of the publishing equivalent of the Reformation, when the canon of the priesthood of all believers has become the watchword, and hierarchical religion (or publishing) is for many people no longer tenable.
One exciting thing about on-line publishing is that it creates the opportunity for the publisher, the reader, and the author or editor to be in a constant dialogue. I remember a presentation by the young people at Atlantic Monthly who were responsible for putting their magazine on line. One thing they'd discovered was a fervent interest on the part of the readers in communicating directly with editors and authors. The editors, poor souls, were also given network addresses, and were inundated with reader e-mail.
In publishing, too, that process of dialogue has taken root. At first many publishers participated grudgingly. The editor demanded a home page, or started one on his own, and the publisher was dragged along, like the dwarf Grumpy in the Disney movie that my children watch incessantly. More and more today, publishers are demanding and pushing for that dialog. They see the opportunities that a direct communications link to their subscribers offers: for learning about their customer base, for getting feedback from readers, and for improving their products without having to wait years for the first printing inventory to be sold out. And the threads of e-mail dialogue create a valuable archive in which some publishers even assert at least a non-exclusive copyright.
Another interesting result of Internet publishing is a fundamental change in the legal relationship between publisher and reader. Today publishers are obliged to enter into contracts with their customers. Before, the typical transaction between a publisher and a customer occurred in a bookstore where the customer plunked down money and walked out with the product. Even for journals and magazines the contract was extraordinarily simple, and the buyer's input was limited to checking a box indicating whether she wished to have a one-year or two-year subscription. Now the legal relationship has become interactive, at least in the sense that both parties are obliged to articulate their relationship with one another.
As the publisher/customer relationship becomes closer, it sometimes grows more hostile if the purchaser feels put upon by the contractshe is obliged to sign (witness the revolt among librarians who are revealing the details of their license agreements and challenging those that seem to them to be unfair) and sometimes becomes more truly interactive and more mutually educational (again among libraries, which are banding together to help publishers provide better service). The great opportunity is the opportunity for publishers to work with customers on copyright issues. By having the customer sign a contract that recites the rights that a publisher has and the limitations on the customer's usage of the material, smart publishers have added a convert to proper treatment of their intellectual property. Most people really do not like breaking contracts, and they will abide by a contract of that kind even though they have little chance to negotiate its terms, so long as they feel they are being treated reasonably and fairly.
"We tend to forget that copyright is a social contract; more than any other type of property, it depends for its existence on the consent of all parties"
Again, to take the example of the Chicago Journal of Theoretical Computer Science: in that publication, each subscriber receives a lengthy statement from the editors advising what sorts of downloading, usage, and sharing of the contents of the journal are permissible. Is that not vastly to be preferred over the old system, in which the reader could hide behind ignorance?
A great advantage of the point-of-sale reinforcement of the copyright message is that it can transcend national boundaries in ways that the formal structures of intellectual-property laws cannot. In the world of on-line publishing, nationality is quickly becoming irrelevant. Internet distribution of copyrighted materials cannot be done under nation-specific license. The concept of, for example, a U.S. publisher licensing network distribution rights on a U.K.-specific basis has become an absurdity. Licensing decisions made in one country are international in their consequences. Copyright-licensing strategy has to be coordinated internationally at the highest level within each publishing house.
Yet still the legal systems of the various countries of the world are not a seamless whole, to say the least. They are more like railroads in the early days, where a train could go only as far as its owner's franchise because the neighboring franchise used rails of a different gauge. A U.S. publisher may encounter moral-rights problems in France in its use of photographs, that would never arise here. A German publisher may encounter what it considers theft of its database here in the U.S., and then learn that under the Feist doctrine theft is a sacred right of all Americans. That sort of thing underscores not only the need for coordinating copyright policy but also the importance of obtaining a clear contractual relationship between publisher and users. That contractual relationship can overcome most incompatibilities between legal systems.
And it must be added that as different as national legal systems are on paper, they are even more so in practice. The developed nations of the world have, by brute economic force (through the GATT or threats of trade retaliation), obliged the rest of the world to pass impressive statutes that purport to guarantee to all the rights of intellectual property that we take for granted. But the cultural underpinnings are absent. We tend to forget that copyright is a social contract. More than any other type of property, it depends for its existence on the consent of all parties. And that consent has a strong cultural component. In China and other Asian countries, copyright is grafted onto a culture that for 2,000 years at least has valued imitation as the foundation of learning and of the transmission of culture across generations. In Russia, capitalism has taken the place of the state as the entity seeking to impose controls on the circulation of intellectual property, and the Russians, raised to fear and hate such controls and to value circulation in samizdat — royalty-free, needless to say — as a gesture of freedom, cannot understand what we are so upset about. In Africa, whose societies for millennia lived in an oral culture where artistic expression was fundamentally religious in character, copyright is a colonial concept. Somewhat inconsistently, Western information is correctly perceived in developing countries as the key to advancement and Western attempts to control information are incorrectly perceived as an attempt to maintain colonialism.
But in all those cultures, a bargain between two individuals has a status separate and apart from those theoretical disputes. A bargain is a bargain, and if a publisher can obtain one from the reader, the publisher may be far safer than relying on mere laws, whose enforcement is subject to whim, political manipulation, and corruption.
Important as contract is, I do not mean to suggest that it will or can supplement copyright. What, then, should be the proper role of copyright in controlling access to, and use of, on-line information?
The question is an immense one. To answer it definitively, at this point, is probably beyond the power of any living soul. What amazes me is how many living souls are engaged in the debate. Wherever you look, there are task forces, working groups, hyperventilated e-mail, and futurologists gleefully predicting the end of copyright.
The university-library community in the U.S. is abuzz with proposals for wresting copyright away from publishers; for turning universities into publishers of their own authors' works. Those are utopian or communitarian movements, with all the dangers that have always afflicted such movements. If they succeed, they will simply set up new publishers in the place of old, but new publishers without the income and capital to provide editorial support and print distribution. The fact that such schemes are even under discussion, though, illustrates the level of anger and confusion.
More responsible voices in the library and scholarly communities call for fair-use guidelines. Yet the effort to establish such guidelines ultimately has collapsed in failure. No doubt there is plenty of blame to share around, but in my judgment the publishers pushed too hard. Be that as it may, the net result is that we are left with a fair use system that is fundamentally ad hoc. I respectfully disagree with that fall-back position, and I suggest that that is not in society's interest.
First, as one who spends a lot of time drafting contracts, I dislike contracts with ambiguous terms. The same goes for the social contact known as copyright. Litigation is a poor substitute for mutual understanding.
Second, clear guidelines are more likely to be applied uniformly worldwide than any one nation's legal approach to fair use.
Third, most of us have as many moral decisions to make each day as we can properly handle. If scholars and librarians are not able to make easy use of the natural strengths of the Internet, they will do one of two things: either they will abandon worthy projects, or they will go ahead and do what they want and the devil take the hindmost. The former will breed mediocrity, the latter contempt for the law. Neither is in the publishing community's interest.
Again, MIT Press's electronics journal offers an interesting lesson. As I mentioned, the policy for downloading, sharing, etc. of the journal's contents appears up-front. It was developed by the editors in consultation with the Press. But the impetus for it came from the editors. Why? Because they perceived, among their colleagues, a fear that digital information was going to be locked up so tight that it would not reach its full audience. Without liberal guidelines, the editors feared, they might not be able to attract the best papers. For authors — at least for academic authors — the most important thing about being published is fame, not fortune.
"Copyright is a utilitarian, democratic substitute for the ancient system of patronage and royal monopolies"
It behooves publishers to think hard about what kinds of uses they can allow their readers to make without losing their shirts, so that the on-line market can develop. What are those uses? I do not have any hard and fast answers to the question and I'm not sure that any exist. It helps to some degree, I think, to analogize what can be done with electronic copies to what can be done with the traditional sort of hard copies. That is the way customers are thinking. In preparing guidelines for licensing or for fair use, publishers should try to see the situation from the user's point of view, and be realistic about the sorts of activity that will truly cause harm.
Realism is critical here. Publishers must not fall prey to the delusion that technology will do away with fair use. The Digital Millennium Copyright Act, enacted in October of 1998, contains stern language forbidding decryption, and pay-per-use technology appears to be imminent. But the fact is that if publishers lock up their products too tight they will either lose business or induce piracy. Those mechanisms, if they work too well, will backfire. For the good of their own reputations, publishers need to be seen as supporting fair use.
Besides reasonable licensing or fair use policies, the other strategy for winning the support of key constituencies on copyright matters is education. Publishers should start with their authors and editors. (That that even needs to be said is, by itself, an interesting fact. There has always been a gap between "trade" and scholarly publishing, but the gap has never yawned wider. Trade authors and their publishers may fight over dividing the spoils, but they are united when it comes to copyright. Witness the late Sonny Bono, songwriter and performer turned Congressman, who pushed hard for the recent (and to my mind unjustifiable) 20-year extension of copyright. Scholarly publishers do not get that sort of support from their authors.
The simple reason is money. Copyright is a utilitarian, democratic substitute for the ancient system of patronage and royal monopolies. I realize that would be hotly debated in some continental European countries, whose copyright law is more rooted in a Romantic conception of authorship. But whatever its moral content or origin, the economic function of copyright is to support the creation of new works of art and information. Or at least that is its function for publishers. Scholarly authors, on the other hand, are supported financially by patronage - not from the noblesse d'epee, as in the past, but from the noblesse de robe, their universities. Except for the occasional author of a successful textbook, they are profoundly indifferent to whether their publishers make money or not. What they want is maximum distribution, and they don't care who makes money from it so long as they are properly credited.
So, as copyright goes through a major evolutionary adaptation, scholarly publishers are getting no support from what ought to be their core constituency. To overcome that, publishers must reach out to their authors and editors in ways they have not much done to date. Usually the only communication between a publisher and an author is a blood-curdling contract that the author must sign or forego whatever hope of fame he may have. But every contract is an opportunity to educate. Publishers should explain to the author why copyright is important — why the publisher must control it, how the publisher will administer it for the author's benefit as well as his own.
Contracts with customers are another opportunity for publishers to educate. A license agreement with a digital user may need to contain legalese, but it can also contain a gentle sermon. The MIT Press's e-journal editorial statement respectfully reminds readers that their good faith is being relied on. Will some of them steal anyway? Of course, but I suspect not many. Will a liberal-use policy attract subscribers and contributors? I have no proof, but I suspect it has done so.
And when we speak of education, let us not overlook the general public.
The man or woman in the street is profoundly ignorant about why we have a copyright system and how it works. Publishing, and the other major copyright industries, need to make a major effort to correct that. It would make, for example, a wonderful study unit for 6th Grade civics class.
Publishers have accepted for years as an article of faith that copyright is necessary to create the economic incentive for production of works. But we had never had laboratory proof of that. A few years ago, however, The New York Times ran an article on the software industry in Russia. Russia is a country you would think predestined to have a thriving software industry. It had perhaps the greatest concentration of first-class mathematicians in the world, and software is an industry requiring little capital. Yet the software industry there was stillborn. The Times asked people why that was, and the Russians answered that software piracy is so rampant in Russia that there is no money to be made in developing new products. Now there's a civics lesson!
Speaking of Russia raises the difficult question of how to educate the public in developing countries. I would suggest that among other things, the television is a powerful tool for that purpose. One good documentary about copyright could reach millions, and reach them better than threats from trade ministers.
In educating various constituencies, publishers need to stress not only the economic facts of life but also the other services they perform. Maybe I am just a contrarian, but I suspect that as time goes by what publishers do will become more important, not less. Already most of us feel so inundated by random information that we despair of ever managing to know even the essentials of what we must know. Good editors and their peer-review networks, by screening that information for quality, and validating it during the publishing process, perform an enormous service. Good editors need the support of good publishers.
"The public takes an expansive view of fair use, at odds with that of the experts"
Only publishers and their capital can provide good quality print versions of works. Print remains the only reliable archival technology for the long term. Print serves other functions, too, that are sometimes overlooked. It permits browsing of a type very different from the 'browsing" that Netscape or Lycos will do for you. It also helps us see the written word in a different way. I think of that every time I print out something I have written that looked good as it scrolled past me on my computer monitor, only to find that, perceived in a larger view on paper, it lacked cohesion or gravitas.
The age of information can be the age of disinformation. When text and even images can be manipulated and altered seamlessly, and without a trace, authenticity becomes a paramount consideration. Jonathan Swift once destroyed a hostile critic by spreading a rumor that the man was dead. So convincing was Swift that the man's attempts to counter the rumor were dismissed as a prank. If that could happen centuries ago in the world of hot type, the opportunities for such mischief are greatly increased on the Internet. What a publisher can offer is a reliable source for the real thing.
The task of educating the public will not be easy, and we must have realistic expectations. The public has developed certain assumptions about copyright that make a purist cringe. For example, we have been living with massive piracy in the music world for decades. (Note that the music world has not come crashing down.) For decades people have been able to copy songs and symphonies off the air or they have borrowed tapes from friends and have made copies of them or they have made copies and distributed them to their friends. All that is considered by music lovers to be somehow legitimate activity. They feel subconsciously that the author and performer have already been paid enough and should not be further enriched, at least not at their expense. The same applies to photocopying, off-air taping, "sharing" of software. Putting that in elevated terms, you might say that the public takes an expansive view of fair use, at odds with that of the experts. That is not going to change overnight — or overmuch.
At the same time, although that kind of conduct may be widespread, people have (in this country, at least, and one suspects in most of the advanced economies) a fundamental respect for copyright even though they may not really understand it at all. One piece of evidence was the case in Massachusetts where a young MIT student was indicted for committing massive theft of copyrighted materials by means of the Internet. He apparently saw himself as a Robin Hood of Cyberwood Forest, but in the end he was nabbed by the Sheriff and faced serious criminal charges. He got off on a legal technicality, but that is not what matters about his case.
Having read a lot of nonsense over the years — much of it coming out of the university community, I fear — about how everything should be free for everybody to use, I was curious how people would react to that episode. The Boston Globe ran an E-mail poll of those of its readers who were wired in, and the results were quite encouraging. Although there seemed to be a lot of sentiment to the effect that the sentence proposed for the young man was out of proportion to his crime, there was only one answer in the samples I saw supported what he done on philosophical grounds. Quite the contrary, nearly all the respondents agreed that what he had done was wrong.
More anecdotal evidence came to me when I spoke to a group of New Hampshire educators in the audio-visual field. Many, perhaps most, of them were librarians. But instead of treating me like Daniel in the lion's den, they wanted to know what was fair use and what wasn't, because they found themselves being the copyright enforcers on their campuses. The irony of it was sweet. Listening to them reinforced my view that if people's consciousness about copyright can be raised they will do the right thing. But what I also heard was that they are alone on their campuses in that consciousness. So it all comes back to education.
The notes I have tried to sound here — embrace change, don't overreach or overreact, and educate the public — are in truth a harmonic. Together, they resonate with copyright as it plays out in real life: a system that can never be perfect, that moves with the pushes and pulls of conflicting human motives and aspirations, and that is probably better off as a result.
William S. Strong specializes in copyright and publishing, and is a partner at Kotin, Crabtree, & Strong in Boston, Massachusetts. He is the author of the forthcoming The Copyright Book, 5th Edition, published by The MIT Press. You may contact him by e-mail at firstname.lastname@example.org.