Who owns John Sutherland?
It is the dream of entrepreneurs to corner the market but, fortunately for the consumer, few commodities lend themselves to it. Ideally, from the entrepreneur’s point of view, a commodity should be scarce, vitally needed, highly priced, short-lived and regularly (but not too easily) replenished. In the new field of information technology, scientific research has become a tempting target for the would-be cornerer. The current battles being fought over its ownership have implications that extend a long way beyond the laboratory.
Over the last fifty years, the system of professional refereeing by which careers in the American academy are advanced has been contracted out to commercial journals. The submitted paper is sent out (blind, if the journal is conscientious) to two or more disinterested experts. Peer review, fairly applied, eliminates nepotism and malice, and acts as a safeguard against plagiarism, which is the cancer of academic life. Outside refereeing also protects an institution from law-suits, which are the nightmare of academic life.
On acceptance, an article or paper is edited by the journal – a useful service in a profession where many practitioners are non-English speakers (and many others functionally semi-literate). Journals distribute published research efficiently through an arterial system of subscribing libraries, and for the end-user the contents of the journal are ‘free’, guaranteed fresh and delivered in timely fashion to his institution’s door step. Most important, they have indexes and shelvable back-numbers. This makes for easy retrieval, cross-reference, correction, confirmation, argument and contradiction. Traditionally, the archive has been stored by the library in the form of open-access volumes.
In ‘hard’ subjects (science, social science, medicine, law) publication in a leading journal is the currency in which professional worth is measured. In a tenure review, or job interview, at a self-respecting American university ‘refereed articles’ count heavily. In humanities subjects (English, history, modern languages) they don’t carry the same weight. This disciplinary difference was at the heart of the Sokal affair. What Sokal was up in arms about was that his fake article hadn’t been properly refereed. Physica, for instance, would have sent it out to readers, who would instantly have sniffed out the scientific balderdash. The defence – provocatively stated by John Sturrock in these pages – was that humanities journals don’t work that way.
In return for their services to the academy, science journals have traditionally demanded exclusive copyright from authors. This allows the publisher to control and charge for any subsequent use of the published material – even by the authors themselves. The material can be sold on for reprinting or, as is increasingly the case, profitably converted into an electronic database or ‘e-journal’ form.
It’s a sweet deal for the publisher, who pays none of the costs of originating his material. Those costs, which can run into millions of dollars and years of salaried time, are picked up by the authors’ institutions or by grant-awarding bodies. Authors are paid nothing for the publication of their work. Nor do journals normally pay for the confidential peer reviews which guide their selection. The publisher thus gets an excellent product gratis, and all he has to do is package it. And, sweetest of all, his running costs and overheads are covered by subscriptions, the level of which he himself sets. Effectively, this means that he can make universities pay through the nose for something that the universities have paid to produce in the first place.
Hitherto the commercial journals have served the academic community well enough, but the system is now crumbling under the impact of changes in copyright law, electronic technology and commercial practice. Agglomeration and predatory takeovers in the publishing world have created the prospect of monopoly ownership. One publisher in particular, Elsevier Science (a division of the Dutch-based Reed Elsevier), is dominant. Near-panic was caused in the scientific community in late September when it was rumoured that Elsevier was about to be taken over by Microsoft, where Bill Gates has already successfully targeted picture archives as a cornerable commodity. Together, Microsoft and Elsevier would be the ultimate 800-pound gorilla, able to do what they liked.
Elsevier is notorious for jacking up subscription rates for their journals, so that keeping up with the cutting edge of science has become cripplingly expensive. Some fifteen hundred titles are listed in the current Elsevier Science: 1999 Subscription Price List. Prices range from a modest £4000 for an annual subscription to Analytica Chimica Acta with Vibrational Spectroscopy, through £8000 for both sections of Nuclear Instruments and Methods in Physics Research, to a cool £30,000 for Excerpta Medica. If you subscribe to all the journals on offer the total cost would be – as I roughly calculate – between one and two million a year and rising. (Elsevier adds twenty-odd journals to its stable every year; between 1998 and 1999 subscriptions rose 19 per cent, as costed in guilders.)
Increasingly, Elsevier is moving into electronic journals – where the future of academic publication lies. Their new ‘Science Direct’ package offers ‘an innovative and rich web-based environment’ with immediate access to up to a thousand journals. It is available only to institutions and no prices are quoted in the catalogue. Elsevier call by and decide how much you can afford.
Why does Elsevier charge so much for what is essentially a printing and distribution service? Because they can. In an unfettered market prices rise to the maximum level the customer can bear. Universities must have these publications if they want to stay in the game. If the Economist, for example, raised its annual subscription from £60 to £6000, competitors would jump in to pick up its readers at the old price. Bioorganic and Medicinal Chemistry Letters with Tetrahedron Letters can cost £6000 because there isn’t enough cutting-edge research to support rival journals. Inertia also comes into it. Running an established journal is cheap: establishing one prohibitively difficult and expensive. Acquiring a stable of such journals is something only a multinational conglomerate can afford.
The cost of science journals has had a catastrophic effect on academic libraries in the US. If their research programmes are very ambitious, they may have to divert up to 50 per cent of their acquisitions budget to buying Elsevier’s products. Humanities subjects suffer correspondingly from frozen or reduced budgets, those twin toads of academic life. The argument is that students of the humanities can live on their stored resources – all those old books cluttering the shelves. But there has also been a knock-on effect in academic publishing in the humanities. When library sales are eroded, prices for new books are raised, print runs cut and publishers’ lists shortened. The litany is familiar, but the trail doesn’t lead back to insufficient funds: the fact is that too much money now goes on science journals.
All this is bad enough, but prospective changes in copyright law means there may be worse to come. Universities could lose proprietary control of the knowledge base which is their reason for being. Where will the archived scholarship of the future be located? The proposed World Intellectual Property Organisation Treaty would give publishers ownership in perpetuity of material in their electronic databases, which will, in the not too distant future, replace the traditional university library. On open shelves in free facilities? Or as something equivalent to ‘pay-per-view’ TV, with Bill Gates, Rupert Murdoch or Don King calling the shots? If you subscribe to a printed journal and then stop doing so, at least you have your back numbers. ‘Unsubscribe’ from an electronic database and you have nothing. ‘Access denied’ – the bleakest of electronic messages.
Worse still, American ‘content’ industries (producers of movies, photographs and sound recordings) are lobbying to have the ‘fair use’ option removed. On the principle of ‘fair use’ researchers can at present take, for example, graphs, tables, illustrations or factual data from copyrighted sources, for the purpose of scholarly argument or exposition. If the threatened changes go through, a payment to the copyright-holder (i.e. the publisher, not the originator) will be levied. Again, universities will be charged twice: for producing the research, and then for using it. Any scholar who has used a picture library in the last few years will be painfully familiar with the astronomic price increases which occur when these facilities are privatised and aim for maximum profit. (How a sumptuously illustrated book like Hilary Spurling’s biography of Matisse can be produced at a less than Elsevier price I don’t know. But such books are an endangered species.)
The scientific community in America is reacting to these developments with growing alarm. The California Institute of Technology has taken the lead in picking a fight with the publishers. A few years ago, it launched a boycott of the more exorbitantly priced journals – with little success. More recently, it has done what institutions rarely do: looked at its own regulations. What it discovered was interesting. Caltech requires all its faculty to sign a contract on joining, giving the institution part-ownership of any ‘product of the mind’ they produce while in salaried employment.
Like other humanists at Caltech, I signed that agreement with the arch inquiry: ‘Does this mean you want half my royalties?’ No, I was told – but if you invent a better mousetrap … Traditionally, academic institutions like Caltech have been watchful of their subsidiary interest in patentable materials (notably scientific discoveries), much less so where copyrightable materials (writing) are involved. There is, however, no legal reason why they should not assert prior institutional co-ownership of articles, books or reviews. Technically, as I understand it, Caltech as copyright co-owner could claim a share of the fees this journal paid me while I was in the Institute’s employ.
This, tentatively and non-coercively, is what Caltech now proposes to do. In the short term the Institute wants all its faculty to agree that they will publish in journals only on the basis that they and Caltech, as joint copyright-holders, lease the material to the publisher for a limited period (reversion after two years has been proposed). The proposal is attractive insofar as it takes the fight to the publishers and has institutional muscle behind it. Other aspects are less attractive. Splitting any profits would be unwelcome. Even more unwelcome would be the thought of an institution (less benevolent than Caltech currently is) using its ownership to censor or interfere with what its employees chose to write and publish. The necessary register of publications could very easily become an instrument of institutional control.
Ideally, what Caltech proposes in the long term is to set up an Internet site (or electronic environment) for the free exchange of scientific information among an enrolled community. This community would, over time, resume the functions of peer review, adjudication, archiving and debate which have been surrendered to the academic journals. As a first step, a ‘Hyperforum’ site has been constructed (with a hefty grant from the Markle Foundation). Anyone can visit it (http://mars2.caltech.edu), but only those with Caltech e-mail addresses can get inside to the discussion area. The initial aim of the Hyperforum, as the Institute’s hand-out describes it, is ‘to build consensus through deliberative discourse’ (‘sounds like a bullshit name for a chat room,’ as one faculty member languidly put it).
All this may seem of interest only to an enclave of specialists, but it won’t be long before there are comparable changes in non-specialist journal and magazine publishing. The Internet and its digital conversions is upsetting the old order of things, and the crucial, infinitely vexing question is whether putting something on the Net or onto CD-Rom constitutes ‘publication’ or ‘circulation’. No one seems to know. A few weeks ago, the LRB reproduced an article of mine on its website. ‘The Drudge Report’ has been ‘visited’ a gratifying 890 times. The LRB sought my permission to convert the piece from print to digitised electronic form in its pro-forma way, with a postcard notification. The journal assumed, I assume, that (like Elsevier) ‘first serial rights’ covered this secondary version. This is not a question that would have arisen ten years ago. It arises now not because it’s as yet important but because it will be so in a future, comprehensively electronic publishing environment.
Since October 1997, the TLS has been offering ‘free exclusive on-line access to the Times Literary Supplement archive’. That is, to the full text of the paper from October 1994. It is ‘free’ only to subscribers. Your password into the electronic archive comprises the expiry date of your current subscription and ceases to operate once that date passes. The service not only entices new subscribers: it reminds old subscribers to renew. As the archive grows, it will become more attractive and, in the course of time, an eminently saleable commodity in its own right. At present you can get an annual subscription in CD-Rom form from Chadwyck-Healey, for £295.
I have, as I calculate, a small volume’s worth of words (some 40,000) on that archive. No one asked my permission to convert and put them there, or paid me. Presumably, the legal advice was, once again, that ‘first serial rights’ covered it. But to my un-legal mind it represents a separate, and transparently commercial, exploitation of my work. The Sutherland share of the global totality of the archive is infinitesimally small. But those words are the product of my brain, not Rupert Murdoch’s. If you got all the writers who have passively contributed to the archive into the Albert Hall and asked for a show of hands as to whether they agreed to give their work to Times Supplements Ltd, gratis and for ever, I suspect that the vote would go against the Dirty Digger. In your dreams, authors.
In using an electronic archive as bait for prospective subscribers, the TLS is following a trail blazed by American newspapers, notably the Los Angeles Times (I’ve a few thousand words on that archive as well which no one asked my permission to use). At the moment these resources are embryonic. But they are growing at remarkable speed. Journals and newspapers are beginning to realise that the Internet gives them the ability to sell their product many times over. Yesterday’s newspaper is no longer today’s fish-and-chip wrapping, it is an archive. And, as time passes, access to those archives will become more necessary and higher charges will be exacted.
The British organ which has been most forward in expropriating the products of its contributors’ brains is the Guardian. Every freelance contributor is required to sign an agreement, giving the paper perpetual rights to everything they ever have or ever will write for the paper. This has led to well publicised grievances, since the Guardian, unlike other London newspapers, does not pay authors anything for syndication or reprinting elsewhere.
In doing this, the Guardian is following the example of the most aggressive American dailies, notably the New York Times. And I suspect they are less interested in reprint fees (although they scoop those up with the heartlessness of a Las Vegas croupier) than in secondary, digitised ownership of what they publish. The Guardian and Observer were the first newspapers to create a CD-Rom archive (in 1990), which is sold as a commercial product by Chadwyck-Healey and costs £415 a year. This works out at £1.15 a day, as opposed to the Guardian’s news-stand price of 45p. It has manifestly been a profitable enterprise for the paper. I’ve got a small-volume’s worth on that archive, as well, that no one in the Farringdon Road asked my permission to reproduce. I quite understand why. If the newspaper had been required to get permission from thousands of freelance contributors, the archive would never have got off the ground. The short cut, as American newspapers have realised, is to get rid of the ‘author’, or ‘freelance’ contributor and reclassify him or her as a salaried journalist, whose work belongs to the proprietor.
One has to weigh advantages. The growth of databases and electronic archives is something to be encouraged. On the other hand, it would be unnatural not to feel alarmed at the commercial stranglehold which their creation permits. The state of science publishing – the first sector to take the brunt of the new technology – is bad and getting worse. There are more subtle anxieties, too. Freelance authors, as the romantic name for them implies, are less constrained than employees. Subservience is as corrosive in journalism as it is in academic research. Freedoms of thought and expression are at risk. Is this a price worth paying for the new conveniences of knowledge?
Vol. 21 No. 2 · 21 January 1999
John Sutherland mentioned in his article on copyright (LRB, 7 January) that the Guardian is a particular offender in trying to expropriate writers’ entitlement to their work. For the last 18 months, a number of writers’ organisations – the National Union of Journalists, the Society of Authors and the Writers’ Guild – have been trying to tackle the Guardian over its copyright (mal)practices. As a result, there is to be an independent committee of enquiry into copyright at Guardian Newspapers Limited, which will sit this month.
GNL, as Sutherland points out, is not the only company that tries to relieve freelancers of what is legally theirs. Telecommunication companies, who have developed the technology to stream phone, TV and computer into a house on one line, would dearly like not to pay writers and actors repeat fees and residuals. The advice is: don’t sign away your rights.
Copyright Co-ordinator, NUJ
John Sutherland is wrong about his 40,000 words on the electronic archive of the Times Literary Supplement. They don’t belong to Times Supplements Limited, any more than they do to Rupert Murdoch’s culture-hoovering brain; they defensibly belong to John Sutherland, unless he happens to have transferred his copyright, in writing, to the TLS. For a long time – ever since newspapers and magazines were commonly known as ‘serial publications’ – it has been industry custom and practice that, in the absence of any other agreement, the writer is granting ‘first British serial rights’ to their editor and publisher. ‘First’ means what it says: the publisher publishes once and that’s that. In the last decade, publishers waking up to the possibilities of secondary exploitation have tended to do one (or both) of two things: to coerce writers in various ways to sign away their rights in perpetuity, or to behave in a ‘problem? What problem?’ kind of way, ignoring the writer’s copyright altogether. In Sutherland’s case the TLS is doing the latter, simply attributing all copyright in its archive to itself. Morally and philosophically, their action is an interesting case of applied Post-Modernism, since it is a denial of authorship. Legally it is more dangerous, because the longer individual writers fail to object to their work being collected in electronic databases or reused in other secondary ways without their permission, the easier it will be for publishers to claim a ‘presumption of copyright’ and to begin warehousing work for resale legally.
Second, Sutherland says of his ‘Albert Hall’ scenario where he imagines all writers assembling and voting against such re-use of their work: ‘In your dreams, authors.’ But the Authors’ Licensing and Collecting Society is just such an Albert Hall, fighting these battles on behalf of writers, journalists and academics, offering them representation and advice, and lobbying for control of their rights and appropriate remuneration for secondary uses of their work. Every year ALCS also distributes to writers nearly £10m which it collects for those secondary uses. Last year it circulated a Declaration on Academic Writers’ Rights and later this month it will appear as an independent witness at the committee of inquiry into copyright at the Guardian. It is negotiating for a share of newspaper photocopying revenue to be paid to freelance journalists and, among other electronic initiatives, it operates a syndication service for its journalist members on the Internet at www.universalbyline.com. Membership of ALCS costs £5.88 a year.
Third, the proposed World Intellectual Property Organisation treaty will not give ownership in perpetuity to publishers of material in their electronic databases. Under the European Database Directive, publishers will have a right in the selection and arrangement of the content only, and all copyright material will remain under the author’s control. And control is the key for authors, individually and collectively. The answer to ‘who owns John Sutherland?’ is that he does. But these days ownership is as existential a category as reason, duty, home or anything else of value: a task that has to be worked for. Lose control of your electronic rights or your copyright, and you will find that you don’t have a body of work any more, only a collection of silent fragments orbiting far out of reach in someone else’s digital universe.
Authors’ Licensing and Collecting Society
John Sutherland made a number of excellent points about academic publishing in the US. He is wrong about only one thing. In American law schools, publication in peer-reviewed journals is not the basis on which scholarship is circulated, careers built or tenure granted. Law professors submit their articles to ‘law reviews’ which are run and edited by students. The submitted articles are not peer-reviewed, nor is there any anonymity in the process of review. The students who choose articles to publish may well be taking courses with and being graded by those who write them. Moreover, drafts may be submitted simultaneously to hundreds of journals, making the whole process something between a lottery and a vanity press. That this should be the currency in which professional worth is measured in one of the better-paid sectors of academia is a scandal. (I should add that this is not the case with academic law publishing in the UK.)
None of this affects Sutherland’s argument of course, for he is talking about an additional scandal – namely, that publishers even of respectable academic journals use the laws of copyright to sell research and scholarship back to the universities that sponsor them at a price that they can barely afford. I cannot see how this will be solved until the universities begin claiming intellectual property in the work that their employees have produced, and insisting that no exclusive copyright may be retained by the nominal authors or transferred by them to commercial enterprises outside the academic sector.
Columbia Law School, New York
If John Sutherland thinks reviewers and academics are suffering at the hands of publishing magnates he should consider the fate of letter writers. I was told, some years ago, that the Guardian had decided not to offer me a column (which I was not asking for), since they could get any Flett thought that was worth having in a letter for free. Subsequently I note that references to my fletters appear all over the Web, sometimes in quite bizarre forms. One of the latest is a mention in a Web guide to the attractions of Crouch End in North London, where I am, apparently, to be seen every Saturday morning furthering the cause of socialism. Again, none of this is inspired, encouraged or controlled by myself. If Sutherland wants to take on big business in academic publishing I am with him. I am, however, a child of 1968. I can see no reason why a thousand letters or articles should not bloom, and no reason at all why I should want to control the duplication of the things I have written.
John Sutherland twists the facts about journal prices and copyrights. When it comes to ‘cornering the market’ in basic research, isn’t it the 125 US Research Universities, of which Sutherland’s Caltech is one, that monopolise Federal grants and other academic research spending? Isn’t it the same small group – which represents 4 per cent of academic libraries – that controls 43 per cent of all collected volumes and 40 per cent of all library spending on literature, history and the arts as well as science and technology? These universities seek relief from keeping up with research, and have halved their libraries’ share of their budgets over the last thirty years. The Research Universities have created the bottleneck in communications by deliberately increasing research while ‘containing’ library growth.
The average US Research University contributes less than 1 per cent to the world output of science articles and must buy the remaining 99 per cent. There’s nothing new in this. However, rather than cheerfully support their voluntary obligation to research and education, they have taken to brutish accusations, first attacking association publishers, then commercial publishers. My reading of Sutherland’s and other harangues suggests the pendulum may soon swing back toward association publishers – some of which actually dominate various disciplines through control of review, index and/or abstract services as well as primary journals, meetings and directories of members.
What is new and interesting is the revelation that universities probably cut library spending in order to hoard their cash. Caltech has become a financial organisation that also offers research and education services. It reported a $100m profit in 1997, and its endowment is among the top thirty in the US, near $1 billion. Financial markets obviously offer more appropriate investments than its libraries.
Publishing Research Quarterly
John Sutherland is not quite right in saying that Microsoft has spent tons of money buying up stock-photo agencies; Bill Gates has. Gates now owns Corbis and the Bettmann Archive, and the pages of Photo District News, a trade rag, are regularly stained with rumours of the next archive he'll buy.
As a freelance journalist currently suing five publishing companies and an electronic database provider, I hope I can point up some omissions in John Sutherland’s piece that others should be aware of. Sutherland rightly complains that the likes of the Guardian and the Times have not asked him for permission to use his copyright in electronic media. Unfortunately, by admitting he knew about these abuses and not objecting to them, he has acquiesced to them. The legal advice I received was that knowing the practice goes on and not objecting to it is the same as signing a contract agreeing to the practice. As soon as an abuse is spotted, contributors must object and demand additional payment for the extra copyright licence. The same applies to those asked for permission in advance. Those contributors who receive ‘grab all’ copyright contracts, which include phrases such as ‘including any format not yet published, invented or known’ must write back objecting to the terms and refusing permission for their copyright to be abused in this way. Those who simply fail to sign the contract but continue to supply copy will be deemed to have accepted the terms laid down in the contract. The disadvantage of objecting will be a blacklisting from the publisher concern ed. The solution is for all contributors to refuse to sign such contracts and for those who have, or who have acquiesced, to write giving formal notice of their intention to withdraw from such agreements. If we were employees, it would be called a strike, but as we are self-employed small businesses, a politer term might be a boycott. I trust the LRB will be leading the campaign.
Vol. 21 No. 3 · 4 February 1999
I am grateful to those who wrote in the last issue with corrections and additional information, following my article on copyright in the previous issue. The paper, judging by what it printed, received a large postbag on the subject. It is noteworthy that no representative of Guardian Newspapers, Times Supplements, Reed Elsevier or Chadwyck-Healey has responded. The fact that the Guardian reprinted the piece in their ‘Editor’ supplement may, however, be construed as an oblique response of some kind.
I shall receive 80 per cent of the reprint fee for that piece, which is, I understand, the LRB’s standard rate. Recent experience at the TLS indicates that they give 50 per cent. The Guardian adamantly hands over zilch – at least to me. The last piece of mine sold on by the Sunday Telegraph yielded 100 per cent. Clearly, where I’m concerned these paymasters stump up whatever they happen to decide is the going rate. Given the fact that minimum per-word payments to contributors in these papers are all more or less NUJ-standardised, could not some convention be agreed on normal rates for reprinting? Fifty per cent seems about right to me; but I (thank God) do not have to live by my pen.
University College London
Vol. 21 No. 4 · 18 February 1999
I notice that the latest TLS (29 January) carries an article about the TLS Centenary Archive, a project funded by the Leverhulme Foundation (because the proprietor of the TLS could not afford to finance it himself, I suppose). It aims, say Jeremy Treglown and Deborah McVea, to put on-line the text of that organ between 1902 and 1988. No mention is made of copyright law which, as John Sutherland observed (LRB, 7 January), has already been decisively rubbished by the existing TLS archive.
One is bound to ask whether it is proper for academic foundations to finance projects which openly flout copyright law and the rights of those on whom such publications as your own are dependent – namely, those of academics themselves. The more academics kow-tow to the likes of Murdoch, the less likely they are to be able to reclaim the rights they have surrendered. Some consciousness-raising would seem to be in order.
On 12 December 1994, on my way home from Leicester, I bought the Guardian to read on the train. To my amazement I found myself reading a reprint of an article I had published in the Guardian thirty years earlier to the day. It was in a feature called ‘Past Notes’, and was an eyewitness account with commentary of the Berkeley student demonstrations of 1964. I wrote to the editor asking if old-age pensioners whose articles were resurrected in this way would receive a fee. He replied firmly that they would pay me nothing.
Cheadle Hulme, Cheshire
John Sutherland's essay on the changing nature of rights ownership in an electronic environment clearly reflects the frustration of newspaper and magazine contributors. However, Sutherland mis-states the situation in the academic world. Many of the journal publishers, including Elsevier Science, who belong to the International Association of Scientific, Technical and Medical Publishers (STM), do not charge authors for re-use of their own work. They share with authors a wide range of rights, including the right to re-use their own work, to distribute copies to colleagues, to reproduce and use it in their own teaching and in teaching by colleagues at their institution, and to post it on secure internal servers.
At a time when consumer publishers are seeking more rights, science authors are the beneficiaries of fewer restrictions. Yes, copyright transfer is still normally requested for the logistical reasons Sutherland suggests, but allowance is increasingly made for both the specific needs of the author and the changing nature of electronic science communication. The posting of papers prior to publication on public web-sites is common and formal publication in a journal does not usually affect the web version. Our members are steadily reducing the requirements placed on their academic authors, and at the same time widening access to their work through new on-line systems. Perhaps there is a lesson to be learned here – and shared with other kinds of publisher.
Secretary General, STM
The report in the Observer (31 January) that Rupert Murdoch's minions had cancelled an advertisement in the LRB after the mild slight to his reputation finally prompted me to do something I've been meaning to do for years: subscribe!
University of Southampton
Vol. 21 No. 5 · 4 March 1999
Duncan Wu is attacking a fiction of his own (Letters, 18 February). He has missed the distinction we made in our TLS piece (29 January) between the forthcoming on-line facsimile publication of back numbers of the TLS by Primary Source Media and our own Leverhulme-funded project, which involves identifying previously anonymous contributors in the years 1902-74. The copyright principles powerfully outlined by John Sutherland in the LRB and invoked by Wu in relation to the TLS aren’t relevant to those years, when contributors explicitly assigned their copyrights to the Times and its Supplements. But in any case the on-line edition isn’t what the Leverhulme Trust is funding. Leverhulme’s very welcome and, as will become clear, fruitful support is confined to our TLS Contributor Index, 1902-74.
Duncan Wu calls for ‘consciousness-raising’. We’ll try to raise his for him. First, it’s obvious that by naming previously unknown contributors, our Index in an important sense gives authors back their work, rather than depriving them of it. Second, the process has already (we’re now in the mid-Twenties) resulted in some literary and historical discoveries which were outlined in our TLS article and which Wu might have been expected to welcome. Third, Leverhulme’s support has produced various unanticipated benefits to scholars. It prompted Times Newspapers to provide extra resources for its unique archive so that thousands of ‘marked copies’ of the TLS and scores of editorial ledgers dating back to 1902 could be restored and microfilmed. Primary Source Media, in turn, invested time and money in developing new retrieval software which enables the facsimile text of old newspapers to be searched electronically: something which cultural historians have long wanted and which has encouraged the Times Supplements and PSM to make the old issues of the TLS available on-line with fully searchable text, as well as with our Contributor Index. It is this whole enterprise – most of it unforeseen when the grant was made by Leverhulme – which will appear under the title of the TLS Centenary Archive.
Deborah McVea and Jeremy Treglown
University of Warwick
Vol. 21 No. 6 · 18 March 1999
It is kind of John Sutherland (LRB, 7 January) to draw your readers’ attention to the TLS electronic archive, which, of course, includes his own copious and distinguished work as well as that of Duncan Wu and many contributors to the LRB. So do the back numbers of the TLS which you can find bound in any decent library, so does the microfiche edition of the TLS which has been separately available for several decades, so does the audio edition prepared for the blind. Does he think these other uses breach his copyright too? When the new electronic version became a technical possibility, naturally our copyright lawyers, like everyone else’s, did their best to be certain that we would be legally in the right in treating electronic and other derivative versions of the TLS as part of the first use of the material (‘first use’, not ‘first serial rights’, as Sutherland hazards). And we then notified all the contributors we could contact that this was our intention. I am sorry if Sutherland’s letter went astray. Moreover, we – again like other publishers – are convinced that we are morally in the right too. Shorn of all the fancy language, the archive is simply yet another way of making back numbers more easily available. And publishers have always sold back numbers.
As for Duncan Wu’s complaint (Letters, 18 February) that the Leverhulme Trust ought not to be subsidising the Murdoch empire, either the preparation of the fascinating TLS contributors’ index by two first-rate scholars is a worthwhile scholarly enterprise, or it isn’t. And if it is, which is hard to deny, then it is a proper use of the Leverhulme Trust’s money – at least as proper as the subsidy for so long paid by the Arts Council to support another commercial organisation, the London Review of Books.
Editor, TLS London E1
I suppose I should be chuffed to be told by Deborah McVea and Jeremy Treglown (Letters, 4 March) that, as someone who published unsigned reviews in the TLS during the twilight years of anonymity, I am to be ‘given back’ my work by being identified as its author in their upcoming contributors’ index. On thinking about it, however, I find I am not chuffed. I entered willingly into the arrangement of those years whereby what I wrote would be published without my name on it, and I have no sense of having been, in McVea and Treglown’s extraordinary and misleading word, ‘deprived’ of it. Any of us who were asked to contribute to the TLS under that arrangement could have refused to do so, as some people did, not because the foreknowledge of their cruel deprivation was simply too much for them but because they disagreed with the principle of anonymity, seeing it as a temptation to irresponsibility on the part of the anonymous reviewer – a reasonable view, though not one I shared.
The indexers’ presumption seems to be that all authors, even of TLS reviews, are so vain that they can but welcome being delivered up as hostages to future cultural historians, for whom the index appears to be destined, unless it is to be offered on bargain terms to us, the surviving victims of anonymity, so that we can sun ourselves belatedly in the public knowledge of our authorship. A second reason not to feel chuffed is the prospect of being compulsorily ‘outed’, forced from the closet in rough, Tatchellite fashion, without first being asked whether I have an objection. I presume that if I was asked, and said that I did indeed object, that I did not wish to have any of my anonymous reviews attributed to me, that objection would be overridden, if only because, were the boat being generously fitted out thanks to the Leverhulme Trust – and I notice that McVea and Treglown say nothing in answer to Duncan Wu’s question why any money but Murdoch’s is needed to fund this work – to be rocked by conscientious objectors, the index would be defective, and have gaps where it shouldn’t. Since the indexers are as yet only somewhere in the Twenties, and it’s hard to believe that any anonymous reviewers survive from then, the ethical question remains dormant, any possible scruples felt by the dead having no doubt died with them. There will be a fair number of survivors from the Fifties and Sixties, however, and I shall be interested to find out how many of them feel as I do that pieces of work contracted for on the understanding that their authorship would not be revealed should remain anonymous.
Lindfield, West Sussex
I agree wholeheartedly that the copyright issues concerning the TLS archive have no bearing on the valuable work proposed by Jeremy Treglown and Deborah McVea. I am pleased to stand corrected by them and wish them the very best of luck with their labours.
University of Glasgow
Deborah McVea and Jeremy Treglown write that in the years 1902-74 contributors to the TLS ‘explicitly assigned their copyrights to the Times and its supplements’. It is true that all cheques were endorsed in this style, but members of the Society of Authors were advised to cross out this printed formula and substitute the words ‘First British Serial Rights’ when signing their names. This I always did before banking my cheque. So what is my legal position now?
John Sutherland highlights the reasonable concerns writers have about the existing copyright arrangements of newspapers and publishers and whether they offer adequate protection in an increasingly electronic age. Freelances understandably suspect that newspaper managements are now making – or will in the future make – huge profits from repackaging or reusing material initially bought for the newspaper. Managements, for their part, are concerned to ensure that their businesses remain healthy: newspapers closing down or losing huge sums are bad news for all journalists. It is also a commonplace that – currently and for the foreseeable future – there is no money being made from on-line electronic publishing. Indeed, large sums of money are being lost. Professor Sutherland appears to acknowledge this general point. Talking of the Guardian’s CD-Rom archive, he writes: ‘If the newspaper had been required to get permission from thousands of freelance contributors, the archive would never have got off the ground.’
The debate has become clouded by unrealistic guesses at the amount of money publishers must be making out of freelances’ work. Sutherland, for example, draws attention to the Guardian’s CD-Rom archive, which, he says, costs £415 a year – or £1.15 a day, as opposed to the Guardian’s cover price of 45p. He says of his own contributions that they must amount to a ‘small-volume’s worth on that archive’. The implication is that he should be sharing in the considerable profits of this electronic storage system. In fact, the Guardian CD-Rom is sold for different prices, depending on whether it is going to a university or a business. In any event, the Guardian only gets 27.5 per cent of the royalties. The true figure is thus no more than 31p a day.
The clear majority of work on any CD-Rom would have been generated by staff writers on the Guardian – about 78 per cent. During 1998 Sutherland wrote four pieces for the Guardian – a total of 4281 words. There is, of course, no way of assessing whether a particular piece by him, or anyone else, on CD-Rom has been ‘hit’. It is difficult, if not impossible, to work out rationally what the additional archiving of the four pieces is worth in the context of the hundreds of thousands of pieces published in the Guardian in any given year. A word on the CD-Rom is, we calculate, worth a tiny fraction of a penny in terms of royalties received. The cost of identifying and compensating freelances would be far greater than any earnings due.
Much the same can be said of our syndication service. There have been some colourful estimates of the amount the Guardian earns from syndicating freelance articles. In fact the freelance portion of all Guardian profits from second or third use of identifiable sales comes to not much more than £60,000 in a full year, and half of that is now returned to freelances as their share.
Our overall syndication operation does make a profit. But with the exception of spot sales it is difficult, if not impossible, given the technology currently in use, to identify sums ‘earned’ by individual freelances. Traditional forms of what is now called ‘re-purposing’, including the subscription services and spot sales, don’t make much money. Some of the new electronic forms lose quite considerable sums. Guardian Unlimited – the Guardian on-line form – is set to cost three times more than its income in the coming year. Its losses dwarf the profits from the Guardian and Observer’s gross revenue from syndication, of which the vast majority of the material syndicated is generated by staff members.
The Guardian (currently one of only two national newspapers even to talk to the NUJ) reached an agreement over copyright with the union in 1990 which stated: ‘In the absence of written agreement to the contrary the company shall hold world-wide copyright in the work as it appeared in the Guardian.’ It is fair to say that the NUJ was not particularly happy about the deal. I, too, have come to recognise that it is unsuitable and unfair. Some months ago I therefore suggested that together we establish an independent tribunal to reach a new agreement on copyright.
That committee, under the chairmanship of Professor Jon Clark, has now met and reported. Among its recommendations are that in future freelances will retain ownership of copyright, but will license Guardian Newspapers Limited to publish the work. The standard licence will not include ‘all rights’ but will be wide-ranging enough to allow GNL to carry out all its normal functions. The fee will distinguish between a basic sum to cover paper forms and a portion which covers electronic, syndication and photocopying rights. Spot sales will be split 50/50 between the freelance and GNL. The full text of the new agreement – which has been accepted by both the Guardian management and the NUJ at a national level – is available on the Guardian website (www.guardian.co.uk).
Editor, the Guardian
There is now a definitive answer to who owns John Sutherland – at least when he writes in the Guardian and Observer. He does. A saga over copyright ownership at GNL has resulted in a landmark victory for the freelance writers who were determined to assert that they were the legal owners of their work. Clark’s report says that writers for GNL will ‘keep their copyright; keep their moral rights; be paid for extra uses of their work made by the paper’s syndication department’. Alan Rusbridger had claimed, over two years of stalemate, that two thousand writers for the paper had signed away their rights ‘without a murmur of protest’. These people can now get their copyright back under the new contract.
Copyright Co-ordinator, NUJ
Vol. 21 No. 7 · 1 April 1999
I am in favour of electronic databases. I do not accept, however, Ferdinand Mount’s proposition that the TLS full-text electronic archive, ‘shorn of all the fancy language’, is ‘simply yet another way of making back numbers more easily available’ (Letters, 18 March). The TLS database has been subjected to three new processes (electronic scanning, SGML mark-up and digital conversion). The original issues have been reshaped. It is a different entity from surplus copies of the paper in the stock-room or microfiche facsimile reproductions.
Even if one accepted the proposition, the material point is that the TLS has sold on its contributors’ work to an independent commercial publisher, Chadwyck-Healey. This publisher is marketing ‘The Times Literary Supplement on CD-Rom’ under its name, in its brochures, for £295 (with annual updates). The reversionary subsidiary profits of this venture apparently stop at Admiral House. Nor, as far as I know, has permission to reproduce material been sought from contributors. To argue that the Chadwyck-Healey CD-Rom is covered by ‘first use of the material’ (or, in the prudent Michael Holroyd’s case, ‘First British Serial Rights’) is to argue black is blue.
The editor of the TLS conferred with the paper’s lawyers before embarking on the database project. It would have been a professional courtesy to have consulted authors’ representatives (the Society of Authors, the NUJ) as well. But I can see that it would have held the whole thing up frustratingly. The letter which was sent out to those contributors ‘who could be contacted’ seems to have been ineffective. Of the seven contributors to the TLS in the relevant period in my department none recalls receiving this letter.
I am grateful to papers like the TLS and the Guardian for undertaking the heavy start-up costs, and the tedious labour, of creating databases. In my view, the issue could be settled easily by prior agreements (such as one of the TLS’s sister papers is currently sending to contributors) and – if the proprietors were feeling generous – some token supplementary payment. Although, as Alan Rusbridger points out, the dividends for individual authors from any electronic exploitation of their material are currently negligible, it is not science fiction to project that in a few years they will be an important component in freelance authors’ earnings. If there still are freelance writers.
English Department, University College London
The LRB and its correspondents are concerned with copyright and privacy but not, it seems, with fact-checking. First you allow Duncan Wu to air his misapprehensions about the TLS electronic archive and our index of the paper’s contributors in a letter which he then completely retracts (Letters, 18 March). In the same issue, John Sturrock – your Consulting Editor, no less, and (we hope he won’t mind our divulging) once a respected member of the TLS’s editorial staff – confides to your readers his anxiety at ‘the prospect of being compulsorily “outed”, forced from the closet in rough, Tatchellite fashion’, as the author of reviews published anonymously more than a quarter of a century ago, and his groundless assumption that, despite objecting, he’ll be ‘overridden’.
If Sturrock had kept up with the journal where he spent most of his career, or had just got in touch with us, he would have been spared his fears. Announcements of the index (TLS, 2 October 1998; 1 January 1999) have explicitly asked any anonymous contributor who wishes to remain unidentified to let us know. The invitation will be repeated at intervals as the project proceeds. Of course we would prefer the index to be complete, but we’ll respect the wishes of those who, for whatever reason, feel like Sturrock. He wonders how many of them there are. Of the thousands of living contributors involved, the number who have so far asked us to leave them unnamed is two.
In case any of your readers are more interested in consulting the TLS Centenary Archive than in publicising their wrong guesses about it, a trial site can be visited at www.psmedia-online.com. The first tranche (TLS nos 1-1000, 1902-21) will be available next month.
Deborah McVea and Jeremy Treglown
University of Warwick
John Sturrock writes: Two interpretations are possible of the fact that, to date, only two people have asked for their incognito to stay. One is the interpretation implied if not stated in Deborah McVea and Jeremy Treglown’s letter: that the great majority are either happy to be identified, or don’t care sufficiently to object. The other interpretation is that, like myself, weekly reader of the TLS though I am, they didn’t see either of the announcements McVea and Treglown refer to. Given that the index is being handsomely funded (and may presumably be sold on, once complete, to Chadwyck-Healey or whoever, as profitable CD-Rom fodder), perhaps the money should have run to a circular letter being sent to the rapidly dwindling band of veterans of anonymity – are there really ‘thousands’ of them? – many of whom may no longer be readers of the paper. There is an ethical issue after all, since anonymity was a principle, not an editorial aberration awaiting normalisation by a more enlightened generation coming after.
Vol. 21 No. 8 · 15 April 1999
Like John Sturrock (Letters, 1 April) I was reviewing for the TLS when articles were unsigned. I felt let down and embarrassed by the prospect that what I wrote then was to be indexed under my name, and now feel emboldened by Mr Sturrock to join those who will opt to have their anonymity preserved. Like him, also, I would have appreciated a letter about the intentions of the indexers to ‘out’ us, rather than having to glean the knowledge from a general announcement about the index, and write in to assert a principle.
I shall do that because, frankly, I would have been ashamed to have some of my early judgments ascribed to me; in my scrapbook they seem now as callow as my discarded creative juvenilia. But it might also be worth rehearsing some old, sound reasons why many contributors preferred anonymity. I, for one, felt it afforded the opportunity, when I began reviewing in the early Sixties, of being honest and uninhibited about the work of friends or the famous (I was warned by my editors that I might be checked if I abused my position). And then I liked to think that anonymity provided the chance of being generous without lending my name to self-seeking flattery or lenience. I believed that anonymous reviewing allowed readers to judge reviews on their merits, on what seemed to be the perception, commitment and overall thoroughness of address shown by unnamed writers, rather than by the notoriety or obscurity of revealed names. I knew that I tended to avoid or skip through reviews in other journals if they were by persons unknown to me or by better-known persons whose views I could not usually respect. This is now an unavoidable problem, as is the temptation (sometimes with the editor’s encouragement) to personalise opinions.
The first person singular was impossible to use in an anonymous piece in the TLS at that time; but allowed in a response, signed simply ‘Your Reviewer’, by a contributor to an author’s rejoinder about his/her review. In view of the intentions and opinions expressed in this letter, and not wishing even partially to ‘out’ myself, I hope I may be allowed the nostalgia of signing it
Alan Rusbridger (Letters, 18 March) has reeled out the tired old argument that he should not pay freelances any more for extra electronic copyright licences because the Guardian does not make a profit from these businesses. If he took the same cavalier attitude towards the software licences used on the Guardian’s computers, simply copying software without paying for an extra licence, he would be in court quicker than he could say ‘Quark Xpress’ or ‘Microsoft Internet Explorer’. Why then does he think he can copy other copyrighted material without paying for an extra licence?
He knows that if the Guardian does not have a top-notch website carrying the paper’s recruitment advertising, someone else will set one up and poach all the Guardian’s job ads. Without Guardian Unlimited the massive income from recruitment would dry up within five years. The Guardian, therefore, has decided to invest in its new media section. This will be what keeps it profitable in the future.
And anyway, so what if it makes a loss? My company has supplied articles to a loss-making website – articles that had previously been licensed to be printed in the Guardian – and been paid for the website copyright licence. The company running the website does not intend to make a profit from it, but uses the site as a loss-leader to attract other business. In the unlikely event that the website-owner later decides to run a paper-based version of the site, I will have to be paid a licence fee for that secondary use. The principle is very clear. Looking at the opt-out clauses in the new Guardian/NUJ deal, I believe Rusbridger has now accepted this. Unfortunately, reading Ferdinand Mount’s letter in the same issue defending the copyright theft by the Murdoch empire, I can see that it hasn’t sunk in everywhere yet.
Deborah McVea and Jeremy Treglown (Letters, 1 April) are sadly mistaken in believing that I have ‘completely retracted’ my letter of 18 February. My subsequent letter published on 18 March acknowledged my misconceptions as to the relation of their work to the TLS Archive: it does not ‘retract’ my original observation that the archive has ‘rubbished’ copyright law by its appropriation of the materials it contains. Ferdinand Mount (Letters, 18 March) attributes to me a ‘complaint … that the Leverhulme Trust ought not to be subsidising the Murdoch empire’. The tone of my letter published on 18 February may have been complaining, but it says nothing about ‘subsidies’; nor does it refer to News International as an ‘empire’. (Though it is, needless to say, intriguing that an employee of Mr Murdoch’s should himself wish to describe it as such.)
The defensive positions so far adopted are revealing, but bear little on the issue of copyright. The situation puts me in mind of that exchange in Pravda, Howard Brenton and David Hare’s exemplary play about the Eighties, in which the newspaper proprietor, Lambert Le Roux, is talking to his editor, Andrew May:
LE ROUX: To everyone I pose a question. I am the question.
ANDREW: And what is the answer?
LE ROUX: People like you.
Leaving aside the question of whether Mr Mount has written to me and Professor Sutherland to request permission to copyright materials (his letter to me must have gone astray in the post too), the onus is on academics to decide whether or not to oppose the exploitation of rights assumed without acknowledgment or recompense. By failing to act, we make a decision by default – not one that’s likely to do us any good next time someone (whoever it may be) uses our work without permission. That was why my first letter concluded with a call for consciousness-raising, and why one’s opinion of ‘the Murdoch empire’ is, frankly, neither here nor there.
University of Glasgow
It is true, as John Sutherland says (LRB, 7 January), that ‘unsubscribers’ lose access to electronic databases outright, while ex-subscribers to printed journals keep their back issues. Repetitive strain injury is the only risk I would run, though, if I were to subscribe to the Guardian, say, once a decade for only as long as it took to download that decade’s worth of articles to my computer. No doubt this could be automated, reducing the strain on my mouse-finger and achieving the whole thing within the ‘Two weeks FREE trial subscription’ with which they entice one.
Kuala Lumpur, Malaysia
Vol. 21 No. 11 · 27 May 1999
Those who share John Sutherland’s worries about copyright ownership (LRB, 7 January) may be interested in a ruling made in a Paris court on 14 April. It concerned a two-year archive that the Figaro has set up on the Minitel, an on-line service which has existed in France since the early Eighties. The Syndicat National des Journalistes and eight Figaro writers argued that the fee they’d been paid covered the first, paper publication only, and that any subsequent reissue should give rise to further payment. The judge agreed, and pointedly extended her ruling to any publication ‘sur un nouveau support résultant de la technologie récente’, a clear sign that the Internet would be treated no differently. She gave Figaro a month to sort things out, with a 10,000 franc fine for each subsequent day of non-compliance, and appointed an expert to fix the rate of remuneration for such republications. Without this payment, reissued texts are to be subject to the law on forgery.