Carol Ebbinghouse of Western State University has given us permission to post her excellent article in the March 1996 issue of *Searcher: The Magazine for Database Professionals*. Because of its length (more than 6,000 words), we are transmitting here only the first half of the piece. Subsequent sections of the article are headed "The Library Perspective," "Response to the NII Intellectual Property White Paper," and "Publisher Proposed Solutions." Anyone who wants an e-mail copy of the entire article can write to me. We thank Carol for her thoughtful and comprehensive overview of the issues, and for allowing us to make her work available in this format.
Irvin Muchnick
Assistant Director
National Writers Union
<irvmuch[_at_]netcom.com>
>From SEARCHER Magazine, March 1996. For a free sample issue and
subscription form, contact Information Today Inc., 143 Old
Marlton Pike, Medford NJ 08055, 800/300-9868.
THE SIDEBAR: WHO GETS THE MONEY?
by
Carol Ebbinghouse
Campus Librarian
Western State University
In my last column we discussed how to make sure that someone paid the copyright royalties for multiple copies of documents. Well, we got the part right about the searcher paying royalties. But who got the money? Did it ever get to the person or entity that actually owns the copyright? How does that money filter down to the copyright owner? Or does it?
Why Should Searchers Care?
Those of us who depend upon full-text databases have a lot to lose. Legal searchers have dealt with the differences between Lexis/Nexis and Westlaw "full-text" periodical databases for over a decade. When Lexis loads law reviews, they load the whole law review -- relying on publishers and/or editors to gather author permissions. Westlaw, on the other hand, checks with each individual author for permission to electronically publish their article. As a result, searching Harvard Law Review, or any other journal publication on Westlaw, does not mean you have searched the full text of every article published in the time period covered. You have merely searched the full text of every article they have permission to electronically publish. Most sharp legal searchers looking for full-text articles go to Lexis/Nexis first, if the journal is available on both systems. There is no reason to begin with an incomplete database, when a complete full-text database is available.
The threat to full-text database integrity is obvious. If publishers pay authors for electronic rights to publish their articles, chapters, and so forth, then authors will not sue the publishers, database producers, search services, or CD-ROM producers. If the publishers contract and pay extra for the electronic and future technology publishing rights initially, at the same time they pay for the first North American print rights, then entire issues could be loaded in "really full" full text. If publishers continue to keep copyright royalties for photocopies and electronic versions of articles that they fail to contract for, and refuse to pass the payments to the authors who never gave up their rights to this compensation, then full-text online and document delivery may come down like a house of cards. The authors will sue everyone, and since I believe they will win, ultimately take their works and go home.
The coming crisis is not all the publisher's fault, however. Database vendors have balked at either capturing or releasing article or chapter level financial information. They can apparently tell which publication has been downloaded, and they know which publisher to send the check to, but they do not give publishers enough information to know which authors to compensate or for which articles. So what, ask the publishers, are we to do? Who do we pay? The authors respond, they should pay them. It is copyright royalty money, after all, and should go to the creator who has never contracted away the right to such compensation.
Who will win? Publishers, database producers and vendors, and the authors and their professional organizations each have their positions and their different solutions. The libraries, document delivery services, and end-users have their positions and their own notions of suitable resolutions to the problems. Now the government has gotten involved -- the executive branch with the NII report as well as Congress. Proposed legislation may make matters worse by committing us to a national and/or global "solution" based on rushed bills written without input from all the players.
Everyone who accesses full-text databases, who photocopies articles at their library relying on fair use principles, who requests inter-library loans, who relies on document delivery services, or who has ever written an article that appeared in full-text databases or on CD-ROM products -- in short, everyone in the information food chain, should care.
This article will introduce you to the players and their issues, as well as what national organizations and the government are doing. It will give you names, addresses, and Internet locations to gather more information, so you can ultimately make your own informed decisions. We who care need to tell our friends, co-workers, and professional organizations to get involved. The future of electronic information -- especially full-text and document delivery -- is being decided and you have a right and responsibility to become informed and involved.
How much money are we talking about? Most people in the industry agree that authors won't get rich -- and most won't get much, if anything. It depends on whether anyone wants to copy what they write. According to Rebecca Lenzini, President of Knight- s CARL Corporation and UnCover (recently spun off from the Colorado Alliance of Research Libraries), on a per-article basis, the money wouldn't buy the author a cheap hamburger. UnCover paid about a million dollars in copyright royalties total in 1995.
The Copyright Clearance Center's Isabella Hynes, on the other hand, reports that the CCC's anticipated distributions for 1995- 96 is $27,000,000. Of that, one-third comes from transactional programs -- where they can identify author specifics with article/chapter level information. The other two-thirds comes from the corporate program's institution-wide, site license pricing which does not disclose usage at the article/chapter level.
Let's follow the money.
The Database Searcher's Perspective
All we want to do is pay the darn royalty, when we have to, and sleep at night knowing we have done the right thing. Is that too much to ask? Like a lot of things in life, doing the right thing isn't always easy or automatic. For us, paying a copyright royalty charge is just one part of document delivery (like access charges, print fees, rush FedEx charges, and so forth). It is built into the total fee we pay when we order an article, a chapter, or whatever. It is easy, because we do not have to figure out who should get the money we send. We make an act of faith that the money will wind up in the hands of the copyright owner -- be that the author, original publisher, CD-ROM manufacturer, database producer, or some other person or entity. Well, there is no integrated, unified system, and according to authors, the system that exists, doesn't work -- at least to their advantage.
The Author's Perspective
Once upon a time, and more and more these days, authors have discovered their works turning up in full-text databases available for downloading, photocopying and/or ordering by fax -- all for a fee that includes a copyright fee for the rights holder. This story would have a happy ending if payment of royalties went to the author for the electronic version of their writings -- but the royalty money usually doesn't reach authors.
Jonathan Tasini, President of the National Writers Union (NWU), received a check one day for $100 allegedly paying him for the electronic rights to an article that he had written and sold to Newsday. Tasini believed that he had only sold the first North American serial rights to his works, so he scratched out verbiage on the back of the check indicating he would grant all electronic rights to Newsday, and cashed the check. Later he found his story had gone online with Nexis (previously Mead Data Central, now Reed-Elsevier's Lexis-Nexis), and on a CD-ROM produced by University Microfilms International (UMI) -- all without his consent or any separate compensation. He and other NWU members sued the primary publishers --the New York Times Company, Time Inc., Newsday, Times-Mirror, and Atlantic Monthly, as well as the secondary publishers, the electronic information system Lexis- and the CD-ROM producer, UMI.
The authors want compensation for the systematic re-distribution and copying of their creative work. The publishers allegedly take the copyright compensation paid by searchers, document delivery, and photocopy services as a windfall for articles they never created and for which they rarely expressly acquired reprint, secondary, electronic, online, CD-ROM, or heretofore unknown technology publication rights.
Attorney-author Mary B. Jensen, Professor and Director of the Law Library at the University of Mississippi summed up the major issues raised by authors:
"The root of the problem is that too many journal publishers
do not understand that an assignment of copyright must be in
writing and signed by the author. Without a signed writing
from the author, the journal publisher gets nothing more
than first North American print serial rights. The
publisher does not get the right to publish or distribute
the article electronically or to authorize anyone else to
publish or distribute the article electronically. And any
license the publisher gives an online vendor to
electronically reproduce and distribute the article is
invalid because the publisher has no right to sublicense or
license a right s/he never acquired in the first place.
Some authors object because the publishers are making money
from a right they did not compensate the authors for.
Other authors, like me, object because the publishers are
placing high fees on the distribution of articles which the
author would prefer to see distributed at low cost or for
free to encourage wide distribution. Some authors get their
benefits from writing indirectly through having their works
widely read and recognized. I'm losing a valuable right
when someone decides not to read my short article on how to
figure out what is in the public domain because an online
vendor or publisher attached a substantial unauthorized
copyright fee to the delivery of that article. Every time
someone doesn't read what I wrote because of an unauthorized
cost associated with delivery, I've lost an opportunity to
enhance my reputation. I also miss the opportunity of
knowing that my work is being read when I am not consulted
and never receive reports on how often it is being
distributed. Other authors lose more direct compensation.
And either way, the publishers and vendors are ignoring
authors rights under copyright law which is both a moral and
economic injustice."
Proposed Solutions from Authors Groups
Representatives of various author's professional groups have proposed a licensing system much like that employed in the music business. Authors who claim copyright to any particular article, chapter, or book would register the title with a licensing organization. Whenever a document provider wanted to compensate the copyright owner for a copy, the money would flow through a formal accounting system to the author on some flat fee or peruse royalty basis. Some authors are less interested in compensation, as Mary Jensen points out; they could list their works as freely available to make them more accessible.
To complicate things, two new professional writers organizations have emerged with licensing schemes besides the Copyright Clearance Center originally established by publishers on the recommendation of Congress.
The Authors Guild and American Society of Journalists and Authors (ASJA), with 6500 and 800 members respectively, have created the Author's Registry by soliciting lists of authors and articles from literary agents, representatives, agencies, and organizations such as the National Writers Union. Later individual authors will be able to sign up. Ideally, people who want to negotiate with rights holders (be they agents, organizations, or individuals), will go through the registry. The registry will collect the money, and then distribute it to the rights holders.
The National Writers Union has solicited its 4,500 members and others to register with their Publication Rights Clearinghouse (PRC, pronounced "perk"). For $20 NWU members may register articles, chapters, etc. Non-members pay $40. Members of the Author's Guild, ASJA, and Investigative Reporters and Editors (IRE) may register at the NWU member rate for a short time. According to Irvin Muchnick of NWU, the music industry supports dozens of licensing agencies -- and he doesn't mind if PRC becomes the ASCAP or BMI of the literary world.
One of the first companies to sign on to the concept of licensing by authors is CARL Corporation and its subsidiary, the UnCover Company, which has worked with the CCC paying copyright royalties in the past. CARL Corporation, now owned by Knight-Ridder, has executed an agreement with the National Writers Union's PRC. They also have negotiations under way to work with the Authors Guild.
According to CARL Corporation president Rebecca T. Lenzini: "Recently, through the Writers Union, we have learned that in many cases the author, rather than the first print publisher, owns electronic or reprint rights. This arrangement simply makes use of our existing technology to track those cases and make sure the fees reach the real rights holders." Under the PRC agreement, the clearinghouse maintains a list of all authors that register. The authors may specify anything that is not to be made available for document delivery. Some authors do not want their works delivered until there is a payment mechanism in place. Authors may also specify material they want made available upon payment of a standard fee and/or items for which no royalty fee is sought. PRC tallies the documents delivered and re-distributes the royalties paid to PRC to individual authors.
Today, according to Bob Simons of Knight-Ridder's Dialog, all of KRI's document delivery goes through CARL/UnCover and SourceOne. In these services, where Knight-Ridder provides the documents directly, they administer the copyright compliance requirements themselves. According to Bob Simons, he has talked about the new challenges for publishers in speeches he has made to the industry -- encouraging them to secure all the rights they need to provide the electronic articles in their databases. KRI/Dialog, he says, has acquired the data in good faith from publishers, demonstrated by their requiring assurances that publishers have all the rights to their data and that publishers indemnify KRI/Dialog for any challenges to those rights. Received on Wed Mar 27 1996 - 15:13:59 GMT
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:20 GMT