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From the Forum on Intellectual Property in the February 2009 issue of Perspectives on History

Authors' Rights in an Age of Electronic Reproduction

Alice Kessler-Harris, February 2009

Les Benedict begins his discussion of the transformation wrought by electronic publishing with the British statute of 1710 that vested rights to the written word in authors, rather than in publishers. Until recently, I had taken such rights for granted. As scholars who write, we generally seek little in terms of material rewards. But we have a stake in the integrity of our ideas and in the language with which we express our thoughts. Our major demand of publishers has been that they respect that investment. I had not thought of this as an issue until a recent experience that led me to wonder whether electronic publishing harbored a threat to the expression of scholarly ideas.

In spring 2005, I participated in a panel discussion on trends in global feminist history, the revised proceedings of which were to be published. The organizers asked us all if we were willing to publish our pieces as a “forum” in a reputable scholarly journal. I agreed. Mine was less than 5,000 words long. When it came time to sign off, I was sent a publication agreement that I felt I could not sign.

This contract, probably pretty standard, gave the press not only copyright, but exclusive right to publish the piece “in whole or in part” now and forever, anywhere in the world, in any format and “in forms yet to be invented.” Needless to say there was no talk of splitting the proceeds, a clause typically included in pre-electronic days, but that was a minor lapse in the face of my fear that signing that statement would give the press virtual ownership of the piece. My nine-page manuscript, after all, was never intended to be a work “for hire”; it was not written for an encyclopedia or a text. It had not been “sold” in any sense; it was written as an informal think-piece. Could I guarantee that no part of it had ever before been published? Perhaps—at least not in the same words I had used this time around. Could I guarantee that I would not want to use these ideas again? No, of course not. This was the kind of piece we willingly write and publish for the pleasure of the argument, not for profit. I was not willing, I said, to sign over the copyright; and I would grant permission to publish, only on condition that I could first approve requests to publish anything other than the whole piece.

Thus far, I had been communicating with the journal staff. But now, someone at the journal’s publisher replied, and sent along a “non-exempt publication agreement” accompanied by a note, which informed me that the journal’s publisher made very few exceptions in regards to copyright and that too, for artwork and not scholarly articles. With 60 journals and at least five authors in each issue, the note continued, making exceptions would put too much strain on the tiny permissions department. Was I reading right? This seemed to imply that my rights as an author must give way to the practicalities of modern publishing. But the note agreed to offer me a copyright line at the bottom of the article, and so I read the “non-exempt” publication agreement.

Here, I discovered that the most offensive terms had not been deleted. As the author of the article, I would:

Grant to the press and to the editors a royalty-free, non-exclusive right to publish the Article in all forms of media including electronic, cd-rom, online, discs, microfiche or microfilm, print and forms yet to be invented; and to license others to publish the Article, or extracts from the Article, in electronic, print, film, or other forms.

Once again, I balked. I could sign off on an agreement that allowed the press to publish my piece forever in any format they chose. I could stifle my concerns about the company in which the piece might find itself. But I could not stomach the idea of seeing my piece cut and trimmed at the whim of somebody else’s space requirements. What if they omitted crucial links in the argument, butchered the language? Extrapolated an idea so that it appeared without context? It was one thing to turn over the right to publish, quite another to allow persons unknown to me to excerpt the piece with or without footnotes, and to publish those pieces as if they constituted my thoughts. I crossed out the five most offensive words: “Or extracts from the article,” initialed the piece and returned it to the Press. I indicated that I was willing to have them re-publish “extracts” only with my express permission.

There followed an exchange of letters between me and the “Journals Production Supervisor,” who argued that my caveat did not address their chief concern—that they could not guarantee that extracts of my article would not be licensed. There was no mechanism in place to ensure that such licensing would not happen, the production supervisor informed me. Once again the demands of technology (or so it seemed) collided against the rights of authors. I was further informed that while the article could be flagged in the permissions database to prevent licensing of extracts, the journal could not guarantee that mistakes would not happen, and thus they could not agree to what they could not promise to perform.

But surely this was a question of priorities. Why would they, as journal publishers, ever want to license extracts of short pieces since doing so could easily make “gobbledy-gook” of the whole piece? What, I wondered, would be the problem of agreeing to publish all articles in their entirety, unless they obtained permission for extracts … a procedure that would protect the rights of authors, at least a little more fairly? When I proposed this solution, the publisher’s representative reiterated that they could agree to put into a contract only that which they could promise to do, and added that one of the impediments to making an exception was the fact that they had blanket agreements with large consolidators such as ProQuest and Gale.

Finally, then, the cat was out of the bag. The shift to electronic publishing had simply taken some decisions about the publication process out of the hands of the authors and their journals, and removed them to the sphere of the electronic world. I understood now that the issue of an author’s right (like an artist’s) not to have a work changed or represented in ways inconsistent with the author’s purpose, simply lacked salience in the face of the demands of electronic publishing for efficiency, consistency, and regularization. For the press, this was not an issue. They would do what needed to be done to facilitate access through electronic media. Without great expense, they could not protect author’s rights, and so a nearly 400-year-old custom and tradition of author’s rights was simply vitiated.

The press offered me a final solution: I could, if I wished, simply deny them the right to license others to publish the article. Under those circumstances, they would use the whole piece in blanket agreements (which was fine with me) and would do their best not to license the article. There were two problems with this. They could not promise that this system would work. I was warned that an occasional subrights permission might slip through and that I would neither be notified about rights requests nor would they be referred to me. That is, I would be left unaware of any interest in my piece.

What had happened to the days before the advent of electronic publishing? In those days authors could readily retain copyright, signing over the right to publish, and withholding authority to reproduce, or distribute a piece without consent. My file drawers contain letters that ask for permission to reprint articles, or inform me that permission has been granted for a particular reproduction. They include detailed negotiations with editors of one collection or another over what excerpts make sense; which footnotes to keep; or whether a piece might be published without them. And then, there are the old check receipts for 50 or 75 dollars, representing half of the fee charged for reprinting articles. In the electronic era, despite—or because of—the new technology, all this is no longer possible: it makes it difficult to retain the right to reproduce even my own work in a collection of my own essays. It is as if allowing someone to publish my work transforms it into their property not mine.

There is an alternative. A month after this bristly and inconclusive correspondence with the journal’s publisher came to an end, I raised the issue in an AHA Council meeting. How in this day and age, I asked, was an author to retain control over her own work? What were the American Historical Review’s policies? The AHR was then negotiating a new publication agreement with the University of Chicago Press. I learned that the press signed what appears to be a model agreement. It transfers copyright to the AHA (some might question this), but then cedes the postpublication rights back to authors, leaving them free to reproduce, or distribute their work anywhere they wish, except in another scholarly journal. The agreement provides the AHA the right to publish its journal in all nonprint media, including JSTOR, and the open-access History Cooperative (thus bypassing consolidators like ProQuest). The agreement allows educational institutions free access to all articles for teaching purposes while charging a fee to “for profit” publishers which would, mirabile dictum, be split with the author. And it cedes remaining rights back to the author for his or her own personal use of the material. Finally, the agreement contains a crucial protective clause: “All reproduction permitted by the Journal must reproduce the Article in full, along with all footnotes and other supporting materials, except with [the author’s] written permission.”

I am reassured that even in an electronic age it is possible to protect the rights of authors, but that we need to be vigilant if we are to do so. When we write for scholarly purposes, without any monetary reward, we are entitled to only one thing: respect for our authorship. If we let this go; if we succumb to the argument that technology has its own imperative, if we do not fight to retain our interest in the distribution and circulation of our ideas, we may well ask what, in the future will be the incentive for creative scholarship. The coda to my own story is not so encouraging. In the end, I acceded to the requests of those who had organized the forum in which my piece was to appear. Not wanting to hold up production, I signed an agreement I disliked, and sent it off. When I got back the galleys of the article, I discovered that the press had simply forgotten to insert the copyright line at the bottom of the piece.

—Alice Kessler-Harris is the Hoxie Professor of American History at Columbia University. She is a member of the AHA’s Council.