Beware the sharp clause

We all lose when scholars forfeit copyright, says Felipe Fernández-Armesto

June 23, 2011

“Yes, professor. I agree.” That’s all it takes. Then the iniquity sets in - a modest evil, by the world’s standards, but an iniquity nonetheless, which results in the alienation of the fruits of the work of scores of thousands of professional academics.

In the situation I call to mind, and have often experienced in the past, Professor Hunckelpfeffer, or whoever it may be, emails his colleague or counterpart (let’s call him Dr Pfeffelhuncker) telling him about a prospective encyclopaedia of nutrition, or a history of climate, or an atlas of historical epidemiology, or a handbook of Spanish philosophy, or a guide to Latin American churches, or the Journal of Ergonomic Hermeneutics, or another collaborative work on any of the subjects about which he suspects that Pfeffelhuncker knows something.

Hunckelpfeffer asks Pfeffelhuncker to contribute a paper or chapter. Touched by the fact that someone has thought of him, impressed with the project, flattered at the names of the distinguished colleagues in whose company his contribution will appear, Pfeffelhuncker agrees. Hunckelpfeffer requests 6,000 words or whatever it may be, by - say - September 2012. Pfeffelhuncker, who is working on an important paper on the ineffability of the ineluctable, and whose wife is expecting a baby, demurs. The two professors fix amiably on a date in April 2013 instead, and sign off with mutual goodwill.

In other words, they have a contract. Typically, Pfeffelhuncker does not think about payment. His reward is in academic heaven. He is pleased to reach the audience of the projected work and to stamp his discipline with an imprint of his own. He knows that academic publishing is a labour of love. He assumes that as a matter of courtesy, rather than of contract, he will at least get two or three copies of the finished work.

Time goes by. Pfeffelhuncker conscientiously does a lot of work towards his piece. He even begins to write it.

Then a communication arrives from the publisher, purportedly a contract, written at tiresome length in annoying gobbledegook, and imposing various new conditions that Hunckelpfeffer never mentioned and probably never even knew about.

The true contract had been made between Hunckelpfeffer and Pfeffelhuncker long ago by email. The work the latter has already done was on the basis of that contract; there can be no moral justification for introducing additional constraints.

Yet the purported contract probably mentions some risible fee or limits the contributor’s hard-won reward in some insulting fashion - specifying, perhaps, that he will get the right to purchase copies of his own work at an outrageous but nominally reduced price. Clauses appear, imposing on the contributor the trouble and cost, for example, of obtaining picture rights and indexing or of conforming to the publishers’ peculiar house style - tasks better assigned to professionals, who can do them quickly and efficiently.

The most iniquitous new clause deprives the author of copyright. If Pfeffelhuncker assents, he will be unable to reprint his piece in his collected works, or repeat any part of it in a related work, or grant the right to reproduce it for a different readership. He will not be able to put it on his own website, if he has one. If anyone should value it enough to translate or adapt it, Pfeffelhuncker will never see the financial benefit. If students or teachers make copies, the fees will go elsewhere.

To use his own work, Pfeffelhuncker will have to crave the publisher’s permission, wasting time and trouble and risking the prospect of inertia or rebuff in response. Should anyone mangle, cannibalise, pillage or otherwise pervert it, he will probably have no redress. If he becomes celebrated or “commodified” after his death, his heirs will get nothing from the resale of his output.

Earlier this month, the Society of Antiquaries of London heard researcher Sara Perry and Matthew Johnson, professor of archaeology at the University of Southampton, talk fascinatingly about the work of Alan Sorrell, the archaeological illustrator who dominated his profession in the 1950s and whose visualisations fired the historical imaginations of a generation of British schoolchildren.

The making of his pictures was the meat of the lecture, but we learned by the way how Sorrell was forced to redraw popular, artistically successful scenes, because, to earn his modest fees, he had to surrender copyright. We heard, too, that an internal memorandum in one of the museums he worked for explained how to recoup his fee by exploiting copyright and selling postcards and subsidiary rights.

We should remember what copyright is for - “to encourage learning”, as the first British copyright law said, or, according to the World Intellectual Property Organization: “To encourage a dynamic culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.”

Every time an academic forfeits copyright, the world is impoverished, as the incentive to produce original and valuable work wanes. When publishers or other commissioning bodies demand copyright, authors should resist. My work, I fear, will never have much commercial value, but as a matter of principle I never agree to surrender copyright. I concede happily what publishers really need: a licence to reproduce it themselves. Fellow scholars who value their work can, if they wish, do the same.

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