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Who owns John Sutherland?

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.

Carol Lee
Copyright Co-ordinator, NUJ
London WC1

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 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.

Julian Evans
Authors’ Licensing and Collecting Society
London EC1

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.

Jeremy Waldron
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.

Keith Flett
London N17

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.

Albert Henderson
Publishing Research Quarterly
Bridgeport, Connecticut

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.

Joe Clark
Toronto, Ontario

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.

Chris Wheal
London SE13

Moderation or Death

Roger Scruton, a remote and ineffectual don, takes up his quavering, corroded pen (Letters, 10 December 1998): ‘Were history called on to judge,’ he asks, ‘would [Isaiah] Berlin's name come higher or lower than that of [Christopher] Hitchens, I wonder, on the list of those who have sided with political crime?’ Can Scruton cite a single political crime with which Hitchens has ‘sided’? If not, would he care to apologise for this libel – and, in future, to consign his malodorous ruminations to their proper place in his Wiltshire cesspit?

Francis Wheen
Pleshey, Essex

Nom de Guerre

Alexis Lykiard (Letters, 10 December 1998) is quite right to point out that, in Knut Hamsun’s novel Hunger, the narrator announces his name to a policeman only to tell the reader immediately that he is lying: ‘I lied unnecessarily.’ I had written that the reader ‘fumblingly’ learns that the narrator’s name is Andreas Tangen, with the hope that my wavering adverb might catch some thing of the ambiguity of this revelation. But Lykiard upbraids me, certain that the narrator has no name, and that he is de finitely lying at this moment: ‘the narrator is lying. Indeed, he tells us so himself,’ writes Lykiard. But one of the thrusts of my article was that Hamsun uses stream-of-consciousness, which is generally the reader’s way of divining a character’s true depths, against itself, to show how bottomless character is. Hamsun’s narrator is not re liably unreliable. Thus it seems quite possible that Hamsun’s narrator lies to us at the very moment he tells us he had lied, and is in fact called Tangen all along. It would be just like this narrator to name himself and then tell us, falsely, that he has just lied. After all, 16 pages after he tells us that he is not called Tangen, he indulges in a monologue, which he finishes: ‘My name incidentally is Tangen, I’ve been out a bit late.’ Whether Hamsun’s narrator is call ed Tangen or not, I don’t believe, as Lykiard does, that he is searching for ‘meaningful identity’. If anything, he is discarding meaningful identity, precisely that identity which would enable a reader like Lykiard to pin him down and say confidently: ‘the narrator is lying. Indeed, he tells us so himself.’

James Wood
Washington DC

Pulling Ranke

It is beginning to seem unprofitable to correct Peter Ghosh’s persistent misunder standing and misrepresentation of my book In Defence of History (Letters, 7 January). Let me just say that nowhere have I claimed that the version of the history of ideas practised by my colleague Quentin Skinner bears any resemblance to that practised by Hayden White. The ‘modern history of ideas’ does not consist of a single approach or method, as Ghosh so dogmatically asserts. Some Post-Modernists have insisted that it is no part of a historian’s job to recover the meaning of a text intended by an author. They have dismissed the idea that it is possible to do this by reconstructing the contemporary linguistic context of such texts; this too, they say, is an act of interpretation on the part of the historian. Ghosh obviously has no more understanding of this point than he has of my book.

I have never claimed to be a ‘Rankean’, though I would certainly defend Ranke’s method, as far as it goes, against the absurd accusation levelled at it by Ghosh that it is a form of ‘ahistorical quackery’ invented in the Sixties.

Finally, if Ghosh thinks my view that historians of ideas spend most of their time studying a small number of classic texts is outdated, then why is he currently engaged on a new edition and translation of Max Weber’s The Protestant Ethic?

Richard Evans
Gonville and Caius College, Cambridge

On the Buses

Paul Foot writes (LRB, 7 January) that the thinking behind the privatisation of the National Bus Company ‘came from organisations like the Centre for Policy Studies’. This is the opposite of the truth. The CPS’s transport study-group co-operated closely with the NBC (which accounted for a third of public passenger mileage) before its privatisation-fragmentation, in developing new initiatives to increase the competitiveness of public passenger road transport, including the conversion of uneconomic railways lines to restricted public transport roads in London and the conurbations, in order to increase the accessibility of inter urban coach transport. The NBC’s size was an important consideration. Nationalisation of the NBC under Barbara Castle had adversely affected efficiency; privatisation as a single unit would have restored it and paved the way for innovation. When the CPS was de-Shermanised in 1983, I moved over to the NBC as a consultant, and continued to defend the company’s integrity as best I could. Foot should ascertain facts rather than invent them. Unfortunately, the NBC, which had been separated from its parent company, British Electric Traction, at nationalisation, was not best placed to campaign for self-preservation. It was the diseconomies of fragmentation which rendered the NBC vulnerable to takeover. Had Stagecoach not done this, some other body would have.

Comparing the fate of London buses with those outside London and drawing conclusions regarding the effect of ownership on mileage doesn’t work. In London, 85 per cent of passenger mileage is accounted for by (highly subsidised) public transport as against only 15 per cent in the country as a whole. It follows that increased travel overall in London will produce more bus journeys, whereas outside London and the major conurbations the decline in bus and coach travel contingent on the growth of car-ownership is still continuing. Our plans to reverse this trend in the early Eighties by converting rail into special bus-coach routes were nullified by fragmentation, not by privatisation per se.

Alfred Sherman
London SW7

The Engine Room

Penelope Fitzgerald (LRB, 7 January) has written a thoughtful and informative review of Adrian Wright’s biography of John Lehmann, but she says one strange thing: ‘He wasn’t an intellectual, wasn’t original, but he breathed literature’s changing air.’ Whatever can she mean by ‘intellectual’? Must intellectuals be ‘original’? Such a very exclusive definition would massacre the ranks and leave few editors alive. For my part, I can tell the difference between an intellectual editor and the new breed of corporate editors.

Bernard Crick