Forum on Intellectual Property
The New World of Publishing and New Directions in Intellectual Property
Michael Les Benedict, February 2009
For the past 15 years or so, historians have largely been the observers as new technologies have precipitated a crisis in copyright. This crisis is best understood by putting copyright into historical perspective.
The Electronic Communications Revolution and Open Access to Scholarship
English copyright law developed in response to a great technological revolution—the development of the printing press, and a great cultural revolution—the growth of literacy. These revolutions led to a struggle over the control of the value that could be secured from the transmission of information, ideas, and art in print. The struggle was resolved in law from the 1660s to 1710, a time in which progressive forces that opposed monopoly and favored the dynamic use of property—what we now refer to as entrepreneurship—were stronger than conservative, static property interests in the English political system.1 Thus the Statute of Anne—the English copyright act of 1710—rejected the claims of publishers and printers to a permanent monopoly over literary productions, instead vesting rights in authors and limiting those rights to relatively short term.2 These antimonopolistic, pro-entrepreneurial forces have predominated in American society through most of our history, and consequently the American law of copyright continued on the path set by the Statute of Anne. Like other elements of American law, copyright law has accepted the “creative destruction” of existing property values in order to promote continuing economic, and especially technological, development.3 Our laws did not enable canal companies from frustrating the establishment of railroads, for example, or railroads from stopping the construction of interstate highways. We permit the free incorporation of new businesses; the law does not enable existing businesses to protect themselves against competition by preventing their incorporation or by requiring that new businesses obtain the permission of established ones to enter the field or locality. In copyright law, we do not permit copyright in ideas but only in how ideas are expressed; we limit the term during which copyright protects those expressions; and we create exceptions to the rights that copyright law secures copyright owners. Indeed, the U.S. Constitution itself specifies that the purpose of copyright is to promote knowledge in the arts and sciences.4
Copyright law and its doctrines have developed in the course of an essentially print regime, accommodating what now appear to be relatively minor technological advances like recordings and motion pictures by analogizing them to print. Most important, the law of copyright, with very few exceptions, applies the same rules to all communication of creative productions, whether scientific, artistic, academic, for purposes of entertainment, or anything else. Copyright law enables creators and those who distribute their work to profit from its value by giving them exclusive control over its distribution for a period of time. The value of copyrighted work comes from the ability to demand payment from those wishing to reproduce and circulate it, and the law is designed to sustain that right against infringement.5
However, we are now witnessing another great technological revolution affecting the distribution of information, ideas, and art. The potential impact of this revolution on the way we circulate knowledge is incalculable. It makes possible different ways of securing value from the communication of information from those embodied in the present system and in the law sustaining that system. These alternatives grow out of the new stress on interactivity, which characterizes what analysts call the Web 2.0. It posits “open access” to the information on the web.
Think of “googling” for a Chinese restaurant in Washington. The names, addresses, telephone numbers, and web sites of a bunch of eateries appear on your screen. Or you can go to Mapquest and ask for Chinese restaurants near a specific address. Again a bunch of names come up. Click on these and you get menus, prices, formal reviews, reviews by John and Jane Doe. You get advertisements for similar restaurants. Reviewers mention similar restaurants, with hot links to them, and you get similar information. You can link on the chef’s name, or you can google her. You can copy the information and send it to a friend. The providers of all this information either do it out of the pleasure it brings them or, as in the case of Google, they make money from associated advertising, much as commercial broadcast television provides content freely to viewers.
Unless the law interferes, something similar is going to happen with scholarship. Indeed, it is already happening.6 You will google a subject or the title of an article or book you’ve heard about. Up it comes. Along with the book or article appear comments and responses by readers, some of them expert and some not. Enterprising folks have put up links to similar articles and books. Alongside these links are advertisements for newly published books in the area, or for educational software, or computer deals, or special vacations for educators, or whatever else might be of interest to someone who had searched for the original article. You can consult the part of the book you are interested in by clicking on the relevant chapters. You can scan chapters and articles through keyword searches. The footnotes of the article or e-book are hotlinked, and if they aren’t, you can google the titles. You can forward the URL to a colleague so that she can read the same item; you can copy the text and forward it.
The rewards to the authors will not be royalties on book sales, which for most academics are paltry for books and nonexistent for articles. The reward will be the promotions, salary rises, and opportunities that come with being widely known for contributions to knowledge made ever more widely available under the new regime. Besides checking with scholars in your field, the Promotion and Tenure Committee will look at the number of hits on your e-publications, the comments surrounding them, the number of times they are cited. The browsers and bundlers who make these postings accessible will secure revenue through advertising and making their search engines available to businesses.
Obviously, this would be a complete revolution with tremendous implications for the role, if any, of publishers, journals, editors, the referee system, book-length publications, tenure evaluations—just about everything with which we are familiar.
Open access is very attractive to producers and disseminators of knowledge. It is spreading rapidly in several of the sciences, where it is made easier by the fact that authors pay to have their articles published. Physics has long been the leader in establishing open access to research. The Directory of Open Access Journals lists 47 open-access journals in physics and 13 in astronomy.7 But other scientific disciplines are catching up. The Public Library of Science publishes seven significant open-access scientific and medical journals.8 BioMed Central, Chemistry Central, and PhysMath Central publish over 100 open-access journals in their fields.9 Many scientific journals become “open source” after six months, relying on scientists’ need for the most up-to-the-moment information to keep subscriptions up. They are agreeing to allow contributors to place their manuscripts in online archives—in many cases before they appear in print, in others as they appear in print, and in some after a brief delay. These archives are sponsored by the researchers’ home institutions or by organizations in their field.10
The hard sciences are ahead of the social sciences, and Europeans are ahead of Americans in the push towards open access. Many science funding and research institutions of Europe—virtually all the major players in France and Germany—have signed on to the 2003 Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities.11 But the movement is beginning to spread to the American social sciences and humanities disciplines. The Social Science Research Network (SSRN) is a growing online archive of social science and law papers and articles, many of them freely accessible.12 The SSRN’s Legal Research Network allows users to subscribe to scores of law-school research paper series, nearly all on an open-access basis.13 The SSRN has optimistically organized a new Humanities Research Network within its general SSRN rubric.14
A few humanities journals are cautiously beginning to follow the science journals’ example. Perspectives on History is an open-source periodical, and the American Historical Review makes its articles, but not other content, freely available, one of the few humanities journals to do so.15 Of course, people can also self-publish on their own web sites, or create a blog that may include formal papers, or post papers with the SSRN’s Humanities Research Network or on other online repositories established by one’s academic institution or professional colleagues.
The Internet Revolution and Copyright Law
The problem is that an open-source regime is not necessarily the best one for artistic productions and entertainment, requiring a complete rethinking of how media companies earn money. Even in the area of scholarship, it posits a business model at odds with the one that now predominates. Institutions that grew out of the print regime find this new model alien, disconcerting, and even threatening. It suggests an unknown world to institutions such as historical societies that depend on journal subscriptions, editors, and all of us who are used to being evaluated and rewarded according to our success in appearing in print. These institutions prefer the traditional regime, which is based on the ability of copyright owners to restrict access to their productions and to control their distribution. Instead of the open-access restaurant-posting analogy described above, this, current regime encourages closed, or “toll” access—what we still often find when we google an article: a citation and short snippet, followed by the offer to download upon payment of $7.95. Companies like Hein Online have grown up to bundle access to scholarly journals, and ambitious university presses are managing journal subscriptions and printing and then placing their own bundles of journals online. To avoid the irritation of having to pay every time one downloads an article, copyright owners license free access to libraries and subscribers for a fee, which reduces their own administrative costs as well. If you looked at the licenses closely, you might be surprised at the tight and confusing restrictions they place upon downloading and copying. For example, Ohio State University’s license with LexisNexis Academic obligates students and faculty to use LexisNexis’s downloading and printing commands (rather than Microsoft’s copy-and-paste commands) to download “insubstantial portions” of any file and to print them out. Except for legal and patent materials, Ohio State’s license permits users to retain downloaded material for no more than 90 days. While users can make copies from authorized printouts, the terms seem to preclude them from making electronic copies directly from the downloaded files.16 The purpose of the confusing language must be to prevent people from downloading material from LexisNexis and distributing it widely on the internet. That activity would undermine the value of LexisNexis’s service.
To understand the present situation in copyright, imagine the reaction of monks and monasteries as print technology was spreading around the Western world. What was the print revolution going to do to their beautiful hand-painted, handwritten productions? What would happen to their status as repositories of knowledge? Who would care about the accomplishments of a particularly fine illustrator and penman? Now, imagine they had been able to turn to an existing body of law that secured their right to produce and circulate knowledge and prohibit duplication by mere machine.
This time we do have a dense, pre-existing body of law that was designed to establish order after the previous communications revolution. It is based entirely on creating a traditional property right—a right that enables owners to restrict access to their property and to profit from it by charging for access—either by sale or by license. This system may be appropriate, and perhaps even necessary, to encourage artistic and entertainment production. But it is probably not appropriate for the encouragement of knowledge. Toll access really does limit the potential for the dissemination and production of knowledge inherent in the internet revolution.
The question is, what direction will the law take? Will the law be adapted to accommodate the technological revolution? Or will the law be utilized to contain it and channel it to enable powerful media interests to make money from it in the traditional way, the one that they are most comfortable with, which may maximize profits at the expense of the great potential of the new technology? Perhaps we need an entirely new regime to govern the internet media. Or perhaps we need different rules for different kinds of creative expressions—those designed mainly to entertain or disseminate the arts as distinct from those designed to produce and disseminate knowledge.
At present, copyright owners are working desperately to force the internet revolution into the channels established by traditional copyright law. They are driven by the fear that the entire structure of copyright is being undermined by the technological revolution in communications—which it is. From their perspective, they are under siege by pirates intent on stealing their property. A representative of Paramount Pictures characterizes proposals to modify copyright law to take account of the technological revolution in communications as “Because it is easy to steal, it should no longer be illegal to steal.”17 Copyright owners demand that the government protect them against the thieves. But there is another side to these demands. If media companies are successful in securing greater copyright protection, they can reap the economic benefits of the revolution. If they are not, then the creators of new technologies will reap the benefits. Thus Viacom sues Google and YouTube for failing to do enough to prevent copyright infringement online.18 Does it want Google to force infringers off the internet? Does it want Google and YouTube to help media companies collect royalties from kids who post clips on their YouTube sites? Probably not. More likely it wants Google and YouTube to pay media companies a royalty or a percentage of their receipts, much like media companies unsuccessfully sought to force Sony to do when it developed video tape-recording technology.19 Google, with its amazing technological expertise, is devising ways to prevent users from posting infringing material on YouTube. The effect would be to force the media companies to figure out a way to collect royalties from those internet users who were willing to pay them. Not surprisingly, the media companies insist that Google’s remedy is not satisfactory.20
These media giants have immense influence. Copyright owners are responding vigorously to the threat that the internet revolution presents to their ability to profit from their property in the traditional way. In a conservative age, which exalts traditional property rights and is indifferent to the dangers of monopoly, they have met with great success in all the branches of the national government, which has exclusive say over copyright. They have managed to extend the term of copyright protection to seventy years beyond the death of the creator, and the Supreme Court has rejected arguments that such an extension exceeds the limited time the Constitution envisions in order to promote creativity.21 The Digital Millennium Copyright Protection Act bars circumvention of technological protection measures; the Librarian of Congress, authorized to define fair-use exceptions, has interpreted them very narrowly.22 Congress has significantly increased the minimum statutory damages for copyright infringement.23 The Supreme Court has taken a hard line against file-sharing technologies.24
Their counter-attack is eroding the rights of users and consumers. If continued, it will significantly damage the interests of scholars as researchers and teachers, and will impose added expenses on our institutions of learning. The problem for historians is that we are largely observers. The professional associations representing scholars and librarians do their best, but those seeking legislation that helps them exploit the internet, those going to court to shape the law in their interests, are behemoths like Disney and Viacom. The law that emerges from the clash of these titans will affect us profoundly as teachers, researchers, and authors, but the interests of education and scholarship are dwarfed in the legislative struggle and not represented in court except through little-notice briefs we submit as friends of the court or insofar as our interests coincide with one of the parties.
Can revolutions go backwards? Can law counteract the natural consequences of so powerful a movement as the internet revolution? We will see. And the shape of historical scholarship and teaching in the future will be determined by the result.
—Michael Les Benedict, who is an emeritus professor of history at Ohio State University, is the AHA’s parliamentarian.
1. Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695–1775) (Oxford and Portland: Hart Publishing, 2004); Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University Press, 1968); Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge: Harvard University Press, 1993).
3. “Creative Destruction” is a standard concept of economics, originating in Joseph A. Schempeter’s classic The Process of Creative Destruction in Capitalism, Socialism and Democracy (New York: Harper and Bros., 1942).
4. “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Constitution, Art. I, sec. 8.
5. Note that it is the right to distribute one’s work that is exclusive, not the right to sell it. If one purchases a copy of a work, one can resell it, lend it, or give it away without the permission of the creator or those to whom she has delegated her copyright.
6. See John Willinsky, The Access Principle: The Case for Open Access to Research and Scholarship (Cambridge: MIT Press, 2005). Fittingly, MIT has given open access to this book, mitpress.mit.edu/catalog/item/ebook.asp?ttype=2&tid=10611, accessed May 23, 2008. See also Neil Jacobs, ed., Open Access: Key Strategic, Technical and Economic Aspects (Oxford: Chandos, 2006). One can find a wealth of information and insights about open access and scholarship simply by googling “Open Access.”
7. Directory of Open Access Journals, www.doaj.org/doaj?func=subject&cpid=48, accessed May 23, 2008. See Heather Morrison, “Open Access in Physics and Chemistry, or, A Tale of Two Disciplines,” presented at McGill Library School, eprints.rclis.org/archive/00007948, accessed May 23, 2008.
8. Public Library of Science, www.plos.org.
10. The Open Archives Initiative, www.openarchives.org, which is working towards common online archival protocols, lists 883 online archives, mainly European, that have registered with it. Registered Data Providers, Open Archives Initiative, www.openarchives.org/Register/BrowseSites, accessed May 23, 2008. Anna K. Hood lists ten American and one Canadian university open-access repositories. Hood, Open Access Resources: September 2007 (Washington, D.C.: Association of Research Libraries, 2007), 118–30. The presentation by Heather Morrison cited in note 7 above is posted on E-Lis, an open-access archive for Library and Information Science, http://eprints.rclis.org, one example of an open-access disciplinary archive.
11. 2003 Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities, www.zim.mpg.de/openaccess-berlin/berlindeclaration.html.
12 Social Science Research Network, www.ssrn.com.
13 Legal Scholarship Network Research Paper Series, www.ssrn.com/lsn/index.html, accessed May 23, 2008.
14 SSRN Announces New Humanities Research Network (HRN), www.ssrn.com/update/crn/crnann/annA001.html, accessed May 23, 2008. At present the history component consists of only 23 accepted articles or research papers in ancient history taken from the SSRN’s old Classics Research Network. SSRN Abstract Databases Search Result, History, http://papers.ssrn.com/sol3/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=997655, accessed May 23, 2008. Most are posted on an open-access basis.
16 Terms & Conditions of Use for the LexisNexis Services, section 1, www.lexisnexis.com.proxy.lib.ohio-state.edu, accessed May 24, 2008.
20. “Vid Site Ramps Up Copyright Patrol,” Daily Variety, October 16, 2007, p. 1; “Google Takes Steps on Video Rights,” New York Times, October 16, 2007, Sec. C, p. 7; “Google Tries System to Halt Video Pirating,” ibid., October 17, 2007, Finance Section, p. 13; “Viacom Chief Says Google’s New Copyright Protection System Isn’t Enough,” Techweb, October 18, 2007, all accessed through LexisNexis Academic, May 25, 2008.
21. Sony Bono Copyright Term Extension Act, Public Law 105-298, 112 Statutes at Large 2827 (1998). The law may be viewed at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ298.105.pdf, accessed May 25, 2008; Eldred v. Ashcroft, 537 U.S. 186 (2003).
22. Digital Millennium Copyright Protection Act, PL 105-304, 112 Statutes at Large 2861 (1998). The law may be viewed at http://www.copyright.gov/legislation/pl105-304.pdf, accessed May 25, 2008. The rules promulgated by the Librarian of Congress in 2000, 2003, and 2006 can be found at http://www.copyright.gov/1201, accessed May 25, 2008.
23. Digital Theft Deterrence and Copyright Damages Improvement Act, P.L. 106-60, 113 Statutes at Large 1774 (1999). The law may be viewed at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_public_laws&docid=f:publ160.106.pdf, accessed May 25, 2008.
24. Metro-Goldwyn-Mayer Studios v. Grokster, 545 U.S. 913 (2005). Earlier, media companies had successfully used the courts to shut down the popular Napster music file-sharing system. A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D. Cal. 2000), aff’d in part, rev’d in part, 239 F.3d 1004 (9th Cir. 2001).