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