The subject of copyright enforcement came up as I was listening to a panel of newspaper journalists discussing multi-media journalism on C-Span the other day. They were worrying about what would happen when various aggregators around the world start lifting their original news features wholesale without credit or compensation.

The discussion struck me as revealing how much more vulnerable to re-use, misuse and abuse intellectual content of any kind has become in the cyberspace world. And also how much of a commodity content has become.

In the "old days" you had to do some heavy lifting—even if it meant nothing more than picking up the book or photo or illustration and taking it to a copy machine, calibrating the machine so that you got a decent image, making sure it had paper, collecting the output and then having your way with it, whatever that would be.

Before the internet, and especially before desk top publishing, you pretty much had to work with physical copies of things, benignly borrowed (or taken) words and images on paper (or some kind of "substrate" as the term of art would be) for some immediate use. This imposed a variety of practical barriers that kept the leakage of rights to a minimum and concentrated its more substantial flow in the hands of professional thieves.

All of that has changed—and with the low cost and ubiquity of scanners, with cell phone cameras that can capture a Dali or a Rockwell, not to mention your hard-won framed shot of the Chinese Great Wall, and circulate it digitally for mash-ups and re-uses—gate-keeping the rights of images is like keeping a safe deposit box in a room with an open window.

Nonetheless, the publishing industry still relies on copyright law as the foundation of its economic viability. As all who read ForeWord well know, publishers have struggled to cope with establishing rights in an electronic world, and authors and agents have been pushing back while warily going with the flow (See Model Trade Book Contract and Guide, Including Electronic Rights Clauses, a valuable 64 page booklet published by the Authors Guild, Inc., www.authorsguild.org).

All of this leads to a book I'd like to recommend to any of you who are interested in the subject, and especially if you deal with pictures as well as intellectual property and copyright in general: Permissions, A Survival Guide. Blunt Talk about Art as Intellectual Property, by Susan M. Bielstein (0-226-04638-9. University of Chicago Press, 2006).

The author is the executive editor for art, architecture, classical studies and film at the University of Chicago Press. Let me disabuse you of any concern that as a consequence of her position, this short and engagingly written work is simply a compilation of the prescriptive by-ways of legal minutiae.

To the contrary, Bielstein has transformed the process of acquiring and dispensing rights into a challenging exercise of wit, ingenuity and perseverance—governed by both precise definitions on the one hand and improvisation on the other. She launches her work with history, overview and example before getting to process.

Early on she frames all that follows in image permissions: the distinction between copyright permission (for content not yet in the public domain—not as readily determined as one might think if the content is another's version) and use permission (getting and/or paying for a reproduction of any otherwise public domain subject, jealously guarded by the museum that owns it).

With these two variables, the search for permission can be as convoluted as the three variables of the mechanical, performance and authorship rights in the music business (not to mention transcriptions and versions).

After a brief excursion into the history and definition of copyright, and how it has struggled to keep up with media technologies of the times, Bielstein establishes that "the proprietary interests of copyright and free speech are not mutually exclusive. Both rights are granted by the constitution."

Nonetheless, she observes, the way some people conceive of copyright is as "a kind of giant First Amendment duty-free zone. And on the face of it copyright is not about free anything. In the United States, at least, copyright is about commerce and spurs to free enterprise." She supports this in a chapter that provides an overview of copyright conventions and concepts globally and historically.

We are then taken to the roots of today's dilemma in defining and seeking rights to visual works, "The day that Marcel Duchamp arranged for a porcelain urinal to be delivered to the 1917 Independents exhibition in New York City was the day that a number of closely held beliefs about art began to shift...the object didn’t even have to originate with the artist who claimed it. The thing was art if the artist said it was."

So, much of the book is concerned with the question she then raises, "Today, what are we to make of art that is virtual, not actual...or driven by social participation?" Bielstein defines the issues with numerous real life examples, and closes her work with practical advice about where to find public domain resources, free resources and how to go after images that require permission.

She provides sidebars on artist's moral rights and copyrighting architecture (and pictures of architecture), and on rights to images of ephemeral performances. She discusses the pros and cons of the sovereignty of the author and of fair use, including how and when scanning images of two-dimensional originals may fall into fair use.

The work is sprinkled throughout with illustrations of visual works and their permissions trails. For many, rights are easily acquired. But for others, not so simple. One example is a famous Brassai photo of Picasso's dog, Kazback, taken in Picasso's studio. The credit reads "(c) Estate Brassai-RMN (c) Estate of Pablo Picasso/Artists Rights Society (ARS), New York. Photo credit: Reunion des Mussées Nationaux/Art Resource, NY." In order to reproduce the photograph in the book, Bielstein had to pay copyright fees to the Brassai Estate, the Picasso Administration and a use fee to RMS for the transparency.

The practical value of this work is that it draws on the author's experience and she takes you through the details of everything from choosing the size and format of digital files that you may be ordering to how to negotiate on price with museums. There is also a useful bibliography and a short list of image banks and artist's rights organizations.
 
The real meat on the bone of this work, however, is the author's blending of anecdotal experience, procedural advice and a critical effort to point the way out of the box that electronic reproduction and increasing layers of rights control are putting the users of creative assets – adding thickets of procedural obstacles and barriers of cost that lead either to shrinking use and availability or increasing use without permission.

She discusses the benefits and limitations of "flexible copyright" (copyright in advance with conditions) in the Creative Commons. She quotes Laurence Lessig from his book Free Culture that "there is no check on silly rules" on the internet because rights are enforced by code and by rote "not by a human but by a machine". She looks with favor on the practice introduced by Amazon that makes available used (aftermarket) books alongside of new works. She suggests that a similar central catalog allowing keyword search of both public domain as well as images requiring license would benefit both users and licensors.
 
Whatever the solutions, the problem is real and Bielstein lays out the dilemma. On the one hand, she writes, "Today in the new millennium...librarians at some of the major research institutions across America are on a rumble, rolling out a version of fair use in a push to make any and all intellectual property available without charge to what could turn out to be a potentially unlimited number of users."
 
On the other, she notes, the traditional freedom of exchange of a published work that passed from hand to hand "is challenged in the new coded environment, where every use of a work can now be monitored, counted and controlled, where a downloaded copy cannot be borrowed or transferred, edited or excerpted and certainly not resold."

I have always thought of words and sounds and images as arrows shot into the air as in the poem, and " they fall we know not where". But soon they become a part of the fabric of conversation, of thought and of the common language and culture. The artist by the act of publication and sale has begun the process of making his or her original work part of the common intellectual property of humankind.
 
Bielstein sees that as a "fragile ecology," and so gives voice to the soul of what we are all about. She provides much food for thought on the way to dealing with the dilemma of intellectual property in our time. This is a book that should be in every publishing professional's library.

Posted by: Eugene Schwartz, Editor-at-Large

To know is to have power. Or, in a more muscular way, knowledge is power.

This old maxim, that I first learned in my high school Castillian Spanish class many moons ago, comes to mind as the world of words and pictures and intellectual property is being roiled about by the explosion of digitally based media and instant communication through wireless and the internet.

Do we really understand what it is "to know"? Does it make any difference what is true or not true? And if it does, is there some standard by which we can reach that conclusion? And, even if we are never certain that we know the truth, do we believe that it is knowable?

This is heavy duty philosophy on the one hand – but is also a very simple and practical question whose answer governs how we approach everything we do. It is certainly at the heart of how we see our mission as publishers – of what each of us chooses to publish and why.

Generations of human beings today are being introduced to information and ideas with the expectation that they will be instantly available and instantly validated by virtue of the number of unique visitors, eyeballs, hits, user reviews or comments that accumulate around a citation or a work on Google, Yahoo, You-Tube, Slate, Drudge Report, Huffington Post, Move On, Wikipedia, or you name it.

If enough people line up behind an idea or a fact, that becomes the metaphysical truth of the moment. If enough people desire to have unrestricted access to words or music or images, the wisdom of crowds will view barriers to access as elitism or Berlin walls to be scaled.

If Wikipedia says it is so, even if with a warning that more editing is needed, the information becomes the fact for the day – suitable for a term paper or inclusion in an essay or opinion piece.

These facts and truths of the day carry the enormous power of knowledge into the market place of human behavior and social action. Instant communities coalesce around  what later may turn out to be a misquote, a mis-attribution, a misplaced decimal point, an incomplete or out of context citation, a plagiarism or a made-up observation.

Gone are the days when one had to reason their way through an argument, support it with documented attributions, relate it to universal truths already known or hypotheses previously investigated. Buzz words, slogans, talking points and conventional wisdom pass comfortably among us as the stuff of conversation and dialogue. Ad hominem attacks against the messenger serve to invalidate or quash discussion of the message.

On the other side of the coin on the knowledge issue, Chris Anderson (of The Long Tail) has figured out that to offer content free can be a gateway to drawing eyeballs like flies to pop-up ads pre-targeted to qualified prospects. Cheering him on, the wisdom of crowds says that content should be free in the first place.

Global search disseminates knowledge to the widest audience – now a metaphor for the library of the universe. Because it has brought together at virtually no cost markets as small as one, not to mention markets of millions, and has empowered us with instant access to new knowledge, the wisdom of crowds says it is fair use to copy anything for search and from search regardless of the creator's wishes.

Rachel Donaido writing in the Sunday Times Book review on April 27 observes that "everyone has a story – and everyone wants to tell it." Hence, according Bowker, she reports, "a whopping 400,000 books were published or distributed in the United States in 2007, up from 300,000 in 2006."

This huge addition to the global archive of information and ideas is staggering in its dimensions. Book reviewers, librarians, booksellers and researchers despair at the challenge to seek out those titles worthy of referencing and spending time with.

So what does all this mean? We still have a collective memory (first-hand or passed along) of the analog era of the printed word when a publisher's imprint meant that some entrepreneur had put their assets at risk to bring out books they though were worthwhile.  

Relying on a marketplace to validate their judgements, this was a form of self-screening quality control. Editors, reviewers, librarians and researchers vetted manuscripts and fact-checked each other in a process that could take many months to  many years. There is the feeling that this process yielded up more literary merit, screened out the unfounded and properly labeled the opinionated.

Well, those of us who have been paying attention, know that it was also a process that excluded the unnoticed, unseen and unappreciated, and edited out the unpleasant or undesirable – with little transparency that needed to withstand the wisdom of crowds. In the realm of education and opinion it nurtured as much mythology as it did what we consider the truth of the matter.

What I come to in this brief musing on knowledge and power is to observe that because the power of knowledge drives all human judgement, understanding what we call knowledge and how we arrive at it is paramount to our survival as a species that needs to master its circumstance if it is not to be overcome by it.

Because we are all of us subject to error and mis-judgement, it is better to have many ways in which our findings and opinions can be challenged, as well as many ways by means of which people can bring their versions of things into the arena for examination.

Placing the dissemination of knowledge in the hands of  professionally trained and credentialed gatekeepers who earned their position by education, training and marketplace forces has the benefit of enabling us to rely on easily identifiable authority to validate the information and ideas we depend on.  But it also true that while these gatekeepers could more easily control what found its way into the market, they were also highly visible and it was possible to check out their sources and validate them.

The wisdom of crowds replaces these well-identified knowledge sources with a vast uncertainty as to the source of that wisdom – but because it is so much more diverse and readily challenged, untruths are more readily exposed and quickly become subject to challenge by those same crowds – and more new truths find their way into the marketplace.

The problem and the challenge as I see it is not 400,000 new books a year of uncertain credibility or the subjective wisdom of crowds passing judgement. It is that we are in a marketplace of ideas and information in which the challenges of absolute dogmas,  fundamentalism, and made up realities are not being met by an equally persuasive reliance on reason and philosophy as a means of arriving at truth and judgment and by a willingness to advocate for the importance of reasoned judgment arrived at independently,

The value of crowds is not to determine the truth, but to challenge its advocates to make their case without needing a crowd to validate it. Without advocates there is nothing for the crowd to challenge – so it creates its own truth by its sheer numbers and the lack of, or suspension of independent thought by individuals among its numbers.

Knowledge, to my way of thinking, comes about because of independent thought and reasoning. It is a cognitive function which, when applied is enormously powerful because it activates our creative and purposive faculties. And those faculties brought to bear in the coalescing of crowds now possible in cyberspace es muy poderoso - is very powerful indeed, if I have that right.

Posted by: Eugene Schwartz, Editor-at-Large

In this era of the explosion of "content" and of ease of access to it, copyright law and publishing practice in the dispensation of rights to excerpt, anthologize and quote is actually creating barriers to creative literary expressions and academic writings in new forms of anthologies, collections and analytical works.

It has become increasingly evident in recent years that major aggregators of "content," (that is conglomerate book publishers who have amassed huge collections of backlist titles, or newspapers or magazines whose back issues reach back into generations of narratives), have begun to decouple the two parts of "intellectual property," in their business models.

Major publishers are abandoning the "intellectual part" -- their obligation as the trustees of our cultural archive of ideas and knowledge to facilitate its continued discovery, access and application. "Content," and the dispensation of rights to excerpt and collect it in other works and anthologies, are now seen increasingly and exclusively as a profit center –the "property" part.. Licenses are issued based on arbitrary assignments of value that have no relation to the capacity of the intended use to generate the revenue that would make it economically viable to re-use, or to make possible benefits to the advancement of knowledge and the arts.

By demanding unrealistically high prices (from hundreds to thousands of dollars) to use a paragraph or a page or two, a short essay or a news article in another work is creating a paradox – publishers are erecting barriers too costly to scale. Authors and other publishers cannot afford to take advantage of "the enhanced analytical methods and techniques of information science," that is providing "a changing map of knowledge as a source of books" made possible by the "electronic transition" that Peter Dougherty, Princeton University Press Director, wrote about in ForeWord's most recent eWord supplement.

The issue is highlighted in "What We Owe the New Critics," an article by Marc Bauerline, a professor of English at Emory University, in the December 21 issue of The Chronicle Review in the Chronicle of Higher Education. Although its primary thrust concerns compilation of a new selection of essays on the formalist study of literary language, the author devotes half the article to what are to me infuriating difficulties that the compilation's author, Garrick Davis, founder of the Contemporary Poetry Review, had in assembling the work, Praising it New: The Best of the New Criticism (scheduled to be published in 2008 by Ohio University Press in partnership with Swallow Press).

Bauerline gave me permission to cite from his article, and here are some examples of fees for permission to use essays: (1) on the manageable side -- $50 to $100 from New Directions, Kenyon Review and The Nation;(2) not likely manageable if not the exception -- $300 to $550 from University Press of Kentucky and Charles Scribner; (3) and then, the outrageous:

"He [Davis] 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. That sum was 23 times what New Directions had asked for a Pound essay. That must be a mistake, he thought. 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.

"Davis replied with an indignant note about the out-of-sight fee and asked for a reduction. Harcourt replied curtly and refused to negotiate. 'Because of the amount of material contained in the essay we are not willing to reduce the fee to what you are able to pay,' Christine Smith, paralegal, wrote. 'I have canceled the agreement and am sorry you will not be able to include it in your anthology.' She didn't explain what she meant by 'amount of material contained in the essay,' but her phrasing seems to refer to simple word count."

Upon appealing for a reconsideration, Davis received the following reply (sort of in the class of a form letter from the IRS), clearly from someone schooled by a system invented by a book publisher to be indifferent to scholarly or literary purposes:

"Because, as you were informed, the Blackmur agreement has already been canceled you will need to reapply if you care to use that material. Your previous e-mail was forwarded to Kent Wolf, Adult Subsidiary Rights Manager in our New York office."

Back in the days when I handled permissions as director of production at the Prentice Hall subsidiary, Goodyear Publishing Company, we charged permissions fees on a nominal page rate or on the basis of the use's prorated percentage of total text in the book multiplied by estimated revenues from the planned printings. It was a form of courtesy, as we expected the same consideration in return. When the use was not for profit or educational, we gave permission with the understanding of the limits on its use.

It is true, of course, that a publisher's most valuable asset is its intellectual property – more accurately, the rights that it owns to publish that property in various media, formats and languages to markets throughout the universe (as contracts now assert).

These rights do not appear on the balance sheet, except as they are reflected in advances or purchases. Most often, however, those costs have been long since amortized for back lists (or back issues in the case of periodicals), and they reside in the latent potential for commercial application or repurposing (e.g. creating a selection of out of print short stories by various authors.)

If the publisher has another profitable use (and by extension the author), of course they should exercise their right to publish in any form, or to withhold publication for a more propitious time. But arbitrarily withholding publication or holding out for arbitrary fees regardless of the intended use or its profitability to the user really shames the publisher for being so bound by the Property Mission as to have abandoned its Intellectual Mission's redeeming social purpose for existence.

The now 95 year span of copyright law (life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier), retrospective as well as prospective, when it was recently extended, is a far cry from the 14 years plus renewal that held until 1909, and 28 plus renewal years till 1978. It has exacerbated the negative effects of this practice as it can place some content out of reach for creative repurposing and analysis for generations.

In another blog I will discuss why the concept of intellectual property (which I believe in), gets abused when authors and publishers take for granted the culture on which they depend in order for intellectual property to have value in the first place.

What's on your mind?

Posted by: Eugene G. Schwartz

We all entered the book publishing space early in life without realizing it – it was the day we were first aware that the words on a printed page meant something and that the words and meanings stayed there.

As a practical matter, our next significant entry probably came in school, college or out in the working world when we realized we could attach our life’s work or major interests to some aspect of the industry – perhaps, originally, not even realizing the connection.

So it was for me -- passing through childhood in a small Bronx apartment filled with my mother’s books, few of which I read (but of those few marked by them forever by the wonders of imagination), World War II military service, a civil engineering degree and thirteen years in the printing business -- before I crossed the line to work as a production manager for what was then Monarch Press, a competitor to Cliff’s Notes in their early days.

Fast forwarding through work at Random House, Psychology Today Magazine/CRM Books and Prentice Hall/Goodyear and 24 years in Southern California in book production, trade organizations, small town civic engagement, writing columns in the local papers and independently consulting, I came back east to the mid-Hudson Valley in 1992 and by virtue of good fortune was engaged by Victoria Sutherland and Mardi Link to help them plan ForeWord Magazine in time for Book Expo in 1997. I stayed with them ever since as Editor at Large.

So now, ten years later, the internet and digital technologies have created a new platform for expression and infinite opportunities for publishing in many forms and formats.

Limitless subjects to blog about

In this blogging column I will seize the opportunity thus presented to talk about the past, present and future horizons of all of the elements that make up the functions of publishing – “making things generally known,” as is its generic definition.

We are at the center of a transforming industry and culture. So many of the legal foundations, business models, technologies and marketing tools that we use don’t seem to apply to the realities around us or when, as many of them do, they apply in new ways.

There is no end to the topics we can pursue , the ideas and the practices we can challenge:

• How should we manage intellectual property in the digital era of cyberspace?
• Will upcoming generations care about reading? In what interest areas? In what forms? For what purposes?
• What literary genres are ebbing and flowing – such as graphic novels, mind/body spirit, religion, science fiction – and what does it say about society in general?
• Does the author really make a difference? If so, how and when? Or is free access to content a right we enjoy without obligation.
• What are the new roles emerging for brick and mortar libraries and bookstores in the cyberspace world?
• How much does human nature need the codex (written book) as a medium of story-telling, information collection and cultural transmission?
• How will content and all of the existing publishing channels find synergies with portable hand-held, wireless portable multimedia devices?
• Do we need new business models to create revenue streams to compensate authors and publishers?
• How will new supply chain and work flow efficiencies affect job descriptions, job opportunities and career planning?
• To what extent will toner printing replace offset printing, and more importantly, how will real-time updating and multiple versioning of books affect reading patterns as well distribution channels?
• And super-ordinate to all of this are the issues affecting local politics as well as world order, civil society, faith, the creative and practical arts and human liberties – all of which are the stuff that publishing is all about.

And that is just a partial list.

There is no wanting for questions to ask; ideas to offer and challenge, new practices to learn about and old practices to wonder about. And, reaching back into our histories, commenting on the present and speculating about the future.

They are all game for this blog. What’s on your mind?

Posted by: Eugene G. Schwartz