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International Publishers Association

Peter Givler

Copyright

I'm going to talk about copyright, but let me start by telling you about the publishers I represent. The Association of American University Presses has 125 members, all of whom are nonprofit scholarly publishers. Most are affiliated with major research universities in the United States and Canada, like Harvard, Yale, Toronto, California and so on, but the Association also includes the U.S. branch of Oxford and Cambridge University Presses, scholarly societies, like the Modern Languages Association, and non-degree-granting research institutions, like the Smithsonian Institution and the Brookings Institution.

For the last few years, the annual title output for university presses in the U.S has been steady at around 10,000 new books and 700 scholarly journals; for the moment, though, I'm just going to talk about book publishing. To put those 10,000 new books in context, that's roughly 10% of the total number of new books published in the U.S. each year.

In 2002, the total book sales for AAUP members was around $450 million, and to put that figure in context, $450 million was about 1.7% of total U.S. book sales that year. So AAUP members publish 10% of the books and take in less than 2% of the sales revenue. As publishers, you understand what that ratio means; it's a consequence of publishing a lot of specialized books for small markets. It's also a consequence of operating on very thin margins. Economically, book publishing for university presses in the U.S. is a very precarious kind of business to be in.

Culturally though, it can be surprisingly robust. Publishing for small markets, markets that are far below the threshold for commercial exploitation, often just means publishing very good books for the specialists who can appreciate them. But it can also mean publishing very good books before there is a commercial market for them.

For example, in the three months following September 11, 2001, the three top-selling best-sellers in the United States were all published by university presses: Ahmed Rashid's Taliban, published by Yale University Press, Simon Reeve's The New Jackals, from Northeastern University Press, and Angus Gillespie's The Twin Towers, from Rutgers University Press. All three books had been published in the previous 12-18 months; all three had had a modest sale before September 11; all three were in print and available when, on September 12, people began to go into bookstores and libraries looking for books that would help them understand the terrible events of the day before.

Moreover, it wasn't just a case of three university presses happening to strike it lucky. In those three months after September 11, of the 25 titles most in demand from Baker & Taylor, the largest library jobber in the U.S., 16 had been published by members of AAUP. Two days after the World Trade Center was bombed, we started creating an on-line bibliography of books already published by our members that could help shed light on September 11. Books on the history of the Central Asian republics, on terrorism, on Islam, on U.S, foreign policy in the Middle East, and so forth. It took about six weeks to complete-we'd lost our broadband connection to the net in the attack and only had one phone line with a modem to work with-but when it was finished we had a list of over 650 titles, all of them in print and ready to read, that had been published by our members. (You can see that bibliography, and others on topics in the U.S. news, at the AAUP website: www.aaupnet.org.)

When I think about copyright, that's what's uppermost in my mind: trying to make sure that the publishers I represent can continue to do their work of publishing very good books for, initially at least, small audiences of experts. AAUP members publish those books so that knowledge can continue to advance-an important social goal, but one that often seems abstract and distant, far removed from the ordinary concerns of daily life. In our increasingly complex and interconnected world, though, what seems abstract and distant one evening can turn out to be dreadfully real by morning.

So what good is copyright? You'd think publishers would be the first to tell you, but they don't. Publishers have been silent, and that silence has allowed a number of peculiar ideas to flourish. Chief among them is the view that intellectual freedom and copyright law are fundamentally opposed, locked, like good and evil, in a Manichean struggle for the soul of society.

This is nonsense, but it's nonsense that publishers have done nothing to discourage. They've presented copyright as a set of dense, technical rules about how to comply with the law without ever explaining why anyone should bother, as if the mere existence of the law made its purpose irrelevant. This focus on technical rules instead of civil reasons has, in my view, created the peculiar situation in which we now find ourselves. According to a study in the U.S. conducted last spring by the Pew Internet and American Life Project, among online Americans between the ages of 18 and 29, 72% said they didn't care whether their downloads were copyrighted or not. They didn't say they found copyright law confusing and didn't know how to comply with it, they didn't even say that they thought copyright was wrong. For them, copyright was irrelevant. They simply didn't care.

I'm not here to defend the music industry, but given that overwhelming indifference to copyright law by internet users it's not hard to understand why the RIAA might have felt compelled to file all those lawsuits. A recent story in the New York Times reported that because of file sharing sales of recorded music were down 30% over the last five years in Germany with another 20% drop predicted for this year, and sales in the U.S. were down 12% in the first six months of this year.

So what is copyright? First of all, a quick word about what it isn't. An idea in a copyrighted work isn't patented; in fact, it isn't even copyrighted. As the U.S. copyright statute itself says, "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work." (USC 17, 102(b)). It would be hard to say it more plainly than that. Copyright protects forms of expression, not the ideas or facts being expressed.

As to its purpose, Byron put it succinctly in Don Juan:

But words are things, and a small drop of ink,

Falling like dew, upon a thought, produces

That which makes thousands, perhaps millions, think.

He wasn't writing about copyright specifically, but he did express a fundamental idea embedded in it: thoughts are ephemeral but words once written become things, and as things they acquire a power thoughts alone can never have.

Words are things. Copyright is a specialized form of property law which recognizes that works of original expression belong to the person who created them. Today that doesn't seem very remarkable; we hardly give it a thought. As a specific statutory right, though, it's relatively recent; the first English copyright law, the Statute of Anne, was passed in 1710, about 95 years after Shakespeare's death.

Shakespeare, whose works are so well known yet whose texts exist in so many versions, furnishes an instructive example of the perils of authorship before copyright. Under the laws of his day, once his company had performed one of his plays, Shakespeare lost the legal ability to prevent further performance by anyone else. All he could do to try to control performance rights, as it were, was keep the acting script, or prompt book, under lock and key. Since his plays were popular, a brisk business sprang up in counterfeit manuscripts-produced by actors from memory, or by scribes in the audience who took notes-that were sold to rival companies and performed as plays by-who else?-William Shakespeare. As a result, after 400 years of Shakespeare scholarship we still don't know for sure which of the many variant texts of Hamlet represents Shakespeare's own authorized version, and we probably never will.

Copyright law changed two things. First, by giving authors legal control over their own texts it created a system for maintaining textual integrity, a public record of the authorized text to which other texts claiming authority could be compared. Second, and closely related, it created our modern sense of what the profession of author means: namely, to be someone whose reputation-and with luck, livelihood-rests on being recognized as the creator of the precise texts published under his or her name.

If this sounds abstract, in university life it has enormous practical significance. For the overwhelming majority of academic authors the direct financial rewards of publication-royalties and advances-are negligible, but the indirect rewards-promotion, tenure, higher professional visibility, the ability to attract larger grants, better jobs, and so forth-are significant indeed. For better or worse they are the true coin of the scholarly realm, and at the core of those indirect rewards is professional reputation, which in a university rests precisely on being recognized as the author of a specific body of texts. To remind us of how important the integrity of this record is to academic reputation, in the U.S. two well-known historians were recently accused of plagiarism and it became a national news story, with their reputations badly damaged and the value of their work tarnished. I'm told there have been similar cases in Europe.

Copyright grants the creator of original written work the exclusive right to publish it for a certain length of time, and makes that right transferable to someone else. In doing so, copyright creates the basic legal mechanism that allows publishing costs to be recovered from the marketplace. A business investment made in publishing a work protected by copyright-the costs of evaluating, editing, designing, producing, marketing and distributing it-can be recovered (or at least has the potential to be) from sales. Once again, today we take this for granted, but before copyright, if an author wasn't wealthy, publication depended largely on his or her ability to appeal to the generosity of sponsors and patrons. By shifting the funding of publication from patronage to the marketplace, copyright laid the foundation for the enormously expanded range of ideas and information published today.

To go back to Byron for a moment, he was once described by his mistress Lady Caroline Lamb as "mad, bad, and dangerous to know." He probably was, but the phrase itself is too good to apply merely to one young man. Ideas themselves are often mad, bad, and dangerous to know. Significant ones almost always are, which is why the First Amendment is so important, and copyright so closely linked to it. In the U.S., both bodies of law originate in the Constitution, and both address the central importance of communication to a modern, democratic society. The First Amendment protects the expression of ideas from government interference, while copyright provides the economic engine that drives their wide-spread distribution.

If that connection sounds fanciful, here is the U.S. Supreme Court speaking in a recent decision: "Indeed, copyright's purpose is to promote the creation and publication of free expression. As Harper & Row observed [referring to another Supreme Court decision]: 'The Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.'"

That quotation is from Justice Ginsburg's majority opinion in Eldred v Ashcroft, the challenge to the constitutionality of the Sonny Bono Copyright Term Extension Act. CTEA is constitutional, the court said, although it may also be ill-considered. It's certainly unpopular, and a lot of publishers didn't support it. But copyright itself, Justice Ginsburg points out, is good law precisely because it is such a powerful force for public good.

Peter Givler
International Publishers Association
Frankfurt, October 10, 2003

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