A Copyright Thought Experiment -- Mandatory Licensing for Quotations
Earlier this week I wrote a blog post about copyright, and whether the discussion of the ideal length of copyright terms might actually obscure other, more pressing -- and possibly more readily solvable -- issues. For instance, might it be more productive to rethink how we go about the process of permissions and licensing?
"Get permission" is often tossed out as if it were a trivial task. In fact, it can often be a nightmare of open-ended searches for the holders of the requisite rights, of dog-in-the-manger behavior on the parts of rights-holders, and other problems so intractable that writers often find it easier to simply eliminate the need altogether by avoiding material that is under copyright, or at least using only material for which the rights-holders are known, and known to have reasonable terms.
I tossed out the possibility of making at least some rights and permissions issues easier by making them mandatory licensing, something similar to mechanical rights in music publishing. When a band wants to record a cover of a copyrighted song, they don't have to hunt down the rights-holder to get permission. Instead, they just have to give notice (usually through an organization established for the purpose) and pay a set fee according to the number of pressings (for physical media like records, tapes or CD's -- presumably downloadable songs would need to be by download or by purchase). If the rights-holders to an obscure song are unknown, or the rights are tied up in a bankruptcy or disputed estate, the money is held in escrow until the rights-holders are identified or the disputes are settled.
Obviously publishing is a different beast, and we would want to be careful about how we try to apply systems that work in the music industry to the written word. But there are a few areas where it might actually benefit everyone. One such instance is the right to quote copyrighted material, particularly in scholarly writing.
Getting permission for quotations, even relatively brief ones, can often become an insurmountable obstacle, to the point that writers are encouraged to avoid quotations altogether, and to prefer paraphrasing whenever possible. This is the usual course in history and the social sciences, even when paraphrasing dilutes the impact of the original language, that sharp observation of an event or an idea. However, for scholars of literature, the word choices of the author under study are often so critical to the central thesis of a scholarly paper or monograph that there really isn't much way around dealing with the necessary rights and permissions. Because of this, students are often warned against specializing in certain authors because of known problems with gaining the necessary permissions. Certain heirs are known to be exceedingly difficult, often denying permission arbitrarily and capriciously. Even when the permissions are obtainable with reasonable effort, the fees are often set at levels that would be appropriate for a commercial publication that's expected to earn its author money, but out of reach for a scholarly publication.
If we were to instead make the right to quote published works for scholarly purposes a mandatory-license right (which could be done much more easily than changing copyright duration, since it doesn't involve treaty obligations), "get permission" would go from a highly uncertain process to a known one. There would be established points of contact for licensing and procedures for dealing with orphaned works, and a set schedule of fees based upon the number of words quoted and the number of copies in the planned print run. Since most scholarly monographs published through academic presses come out in relatively small print runs (as compared to a commercial press producing non-fiction for a general audience), the fees for quotations would be much lower, and much more likely to be in reach for a scholar who needs the publication credit for a CV (and may well have to sign their own copyright over to their employing institution) rather than money to live on.
Since the process is now a knowable and manageable one, scholars are more likely to use quotations as appropriate to the text instead of avoiding them unless there is simply no way around it. As a result, rights-holders are actually likely to end up getting more money than they would when "get permission" was apt to be a nightmare maze of hunting down the right individual and then crafting a permissions-request letter that will get the desired affirmative response without excessively high fees or onerous restrictions. It would also serve as an inducement for resolving problems that tie up rights for years or decades, whether it be feuding heirs or bankruptcy litigation, for the simple reason that the parties involved can see what dog-in-the-manger behavior is costing them, in the form of money sitting in escrow waiting for them to settle their differences.
It also means that scholars will not have to worry about whether they need to soft-pedal certain conclusions in order to avoid difficulties with rights-holders about permissions for key quotations. Scholarship will be freer to be more forthright about certain historical and literary issues that formerly had to be tip-toed around for fear of having critical permissions denied. No doubt there will be complaints about loss of control, and some people will even raise concerns about privacy issues -- but if the mandatory licensing is restricted to published materials only, and does not include archival materials, everything quotable under these terms is already out in the public view.
The biggest problem I can foresee comes from the development of digital and POD publishing, in which one does not have a "print run" in the traditional sense. Instead, the publisher will be anticipating the size of demand and licensing accordingly. If for some reason a work that was published with the anticipation that it would sell mostly to specialists and university libraries instead finds a larger audience, an academic or university press with a small staff could get caught by surprise by a sudden surge in purchases, and not either make the publication unavailable or make arrangements for the necessary license for a larger print run before sales overrun the maximum number under the original quotations license. Given that copyright infringement is generally a strict-liability matter, a small press could get into big trouble very fast -- but in practice it's an unlikely situation, for the simple reason that most scholarly non-fiction is written in a style that doesn't appeal to non-specialists, and is thus far less likely to "have legs" and take off in a way that would catch publishers and authors by surprise.
Practically speaking, the most likely obstacle to implementing mandatory licensing for quotations in scholarly writing is inertia. We've always done it the old way, so why should we make it simpler?
"Get permission" is often tossed out as if it were a trivial task. In fact, it can often be a nightmare of open-ended searches for the holders of the requisite rights, of dog-in-the-manger behavior on the parts of rights-holders, and other problems so intractable that writers often find it easier to simply eliminate the need altogether by avoiding material that is under copyright, or at least using only material for which the rights-holders are known, and known to have reasonable terms.
I tossed out the possibility of making at least some rights and permissions issues easier by making them mandatory licensing, something similar to mechanical rights in music publishing. When a band wants to record a cover of a copyrighted song, they don't have to hunt down the rights-holder to get permission. Instead, they just have to give notice (usually through an organization established for the purpose) and pay a set fee according to the number of pressings (for physical media like records, tapes or CD's -- presumably downloadable songs would need to be by download or by purchase). If the rights-holders to an obscure song are unknown, or the rights are tied up in a bankruptcy or disputed estate, the money is held in escrow until the rights-holders are identified or the disputes are settled.
Obviously publishing is a different beast, and we would want to be careful about how we try to apply systems that work in the music industry to the written word. But there are a few areas where it might actually benefit everyone. One such instance is the right to quote copyrighted material, particularly in scholarly writing.
Getting permission for quotations, even relatively brief ones, can often become an insurmountable obstacle, to the point that writers are encouraged to avoid quotations altogether, and to prefer paraphrasing whenever possible. This is the usual course in history and the social sciences, even when paraphrasing dilutes the impact of the original language, that sharp observation of an event or an idea. However, for scholars of literature, the word choices of the author under study are often so critical to the central thesis of a scholarly paper or monograph that there really isn't much way around dealing with the necessary rights and permissions. Because of this, students are often warned against specializing in certain authors because of known problems with gaining the necessary permissions. Certain heirs are known to be exceedingly difficult, often denying permission arbitrarily and capriciously. Even when the permissions are obtainable with reasonable effort, the fees are often set at levels that would be appropriate for a commercial publication that's expected to earn its author money, but out of reach for a scholarly publication.
If we were to instead make the right to quote published works for scholarly purposes a mandatory-license right (which could be done much more easily than changing copyright duration, since it doesn't involve treaty obligations), "get permission" would go from a highly uncertain process to a known one. There would be established points of contact for licensing and procedures for dealing with orphaned works, and a set schedule of fees based upon the number of words quoted and the number of copies in the planned print run. Since most scholarly monographs published through academic presses come out in relatively small print runs (as compared to a commercial press producing non-fiction for a general audience), the fees for quotations would be much lower, and much more likely to be in reach for a scholar who needs the publication credit for a CV (and may well have to sign their own copyright over to their employing institution) rather than money to live on.
Since the process is now a knowable and manageable one, scholars are more likely to use quotations as appropriate to the text instead of avoiding them unless there is simply no way around it. As a result, rights-holders are actually likely to end up getting more money than they would when "get permission" was apt to be a nightmare maze of hunting down the right individual and then crafting a permissions-request letter that will get the desired affirmative response without excessively high fees or onerous restrictions. It would also serve as an inducement for resolving problems that tie up rights for years or decades, whether it be feuding heirs or bankruptcy litigation, for the simple reason that the parties involved can see what dog-in-the-manger behavior is costing them, in the form of money sitting in escrow waiting for them to settle their differences.
It also means that scholars will not have to worry about whether they need to soft-pedal certain conclusions in order to avoid difficulties with rights-holders about permissions for key quotations. Scholarship will be freer to be more forthright about certain historical and literary issues that formerly had to be tip-toed around for fear of having critical permissions denied. No doubt there will be complaints about loss of control, and some people will even raise concerns about privacy issues -- but if the mandatory licensing is restricted to published materials only, and does not include archival materials, everything quotable under these terms is already out in the public view.
The biggest problem I can foresee comes from the development of digital and POD publishing, in which one does not have a "print run" in the traditional sense. Instead, the publisher will be anticipating the size of demand and licensing accordingly. If for some reason a work that was published with the anticipation that it would sell mostly to specialists and university libraries instead finds a larger audience, an academic or university press with a small staff could get caught by surprise by a sudden surge in purchases, and not either make the publication unavailable or make arrangements for the necessary license for a larger print run before sales overrun the maximum number under the original quotations license. Given that copyright infringement is generally a strict-liability matter, a small press could get into big trouble very fast -- but in practice it's an unlikely situation, for the simple reason that most scholarly non-fiction is written in a style that doesn't appeal to non-specialists, and is thus far less likely to "have legs" and take off in a way that would catch publishers and authors by surprise.
Practically speaking, the most likely obstacle to implementing mandatory licensing for quotations in scholarly writing is inertia. We've always done it the old way, so why should we make it simpler?