Academics, writers, independent intellectuals: please read the fine-print of your contracts with conventional publishers. Do you realize what you are doing when you grant rights to the publishers? Nearly all of them–and actually all of them, really–insist on exclusive rights. That means that you have lost control over your own work. Your own words are no longer yours. If you repeat what you have already written, and print it elsewhere, you are in violation of the contract you made. (All of this applies to music too, by the way.)
Why would anyone do this? It’s what the law supports. The police and courts are standing there to enforce it. Remember too that copyright isn’t just a contract between two people. It is a binding constraint against the whole of society and every single one of its individual members. (For more, read and internalize the spectacular book Against Intellectual Monopoly.)
Why would any author go along with this? In the old days, there was a narrow time limit. The publisher owned the author’s work only for the period in which the publisher was actually publishing the work. When it went out of print, the rights reverted to the author, usually about 5-7 years or so. Maybe sooner: once the publisher saw that it would cost more to maintain an inventory than it earned in revenue, it would disgorge itself of the obligation and the author earned back his rights.
That has all changed with on-demand printing, meaning only in the last few years–and, in terms of its universal availability and use, only in the last 18 months or so. Now publishers have realized that they do not need to maintain any inventory. If an order comes in, they print the book and send it out. What this means in practice is that nothing will ever go out of print again.
Got that? Now look at the law. In 1998, Congress extended the applicable copyright date. It now lasts the lifetime of the author plus seventy years. This is where I get the name: the 100 year sentence. In most contracts, so long as the publisher keeps the book in print and can fulfill orders, which they can now do forever, the author has lost rights to his work. You will be dead, long long dead, until your work can be legally allowed to be posted online or enter general circulation.
You didn’t know this, did you? It has amazing implications for authors.
But before I go further, let me provide two examples of the implications. I’m a bit unsure why I will not give the names of the authors or the names of the books here, but it has something to do with prudence concerning their privacy rights and also they would likely fear publisher reprisal for having this publicly discussed.
Let me start with a book on business cycle theory published 9 years ago. It was, like most all books, immediately monopolized by the publisher, which is an academic house with very high prices and terrible, even unviable, discounts for resellers. It is a book desperately in need of marketing but since its distribution is discourage by the pricing structure, it is not being marketed.
Entrepreneurial errors are a normal feature of life but competition tends to take care of the problem. There is always another provider around. Except with copyright, the single provider as a legal monopoly. And what do monopolies do? Raise prices, provide bad service, and ignore issues concerning the bottom line.
But what about the author? He long ago signed his life away. Now, someone could come along and buy out the rights, setting the book free from its copyright prison, but that takes insight and resources. Meanwhile, the author is up a creek.
Another case in point is a book published in the 1950s, a hugely important book in the history of Continental philosophy. Its rights were renewed – the single greatest mistake one can make if you value the free distribution of information. It ties the manuscript up for another 60-plus years just as it was going to make a break from legal monopolization.
The rights were sold and sold again, and sold yet again. In course of timeline from edition to edition, an academic economist wrote a marvelous introduction. But the last publisher in the line didn’t like it. The publisher did run it, but since he owned the whole of the latest edition, the introduction entered into the trashcan of history. Now, it might be possible that the author could have reclaimed his introduction on grounds that it was technically out of print, but what would he done with it then? The book for which it was written was a monopolized product. It was written to go with the book. He was effectively sunk – the fullness of his lifetime.
Now, here again, it is possible for another publisher to seek to buy the rights and set the whole package free into Creative Commons or some such. This particular book is fortunate in that the Mises Institute is doing just that. But think of the sheer ubiquity of such cases. There are millions of books in question here. The higher the costs to emancipating these books, the less likely it is to happen. Academics don’t usually have the temperament to agitate for their literary rights, so they end up accepting their fate.
Most writers just figure that this is the way the world works, and don’t complain about it. Others are tricked into thinking that they will earn royalties, when it is far more likely that they will win the lottery. Most are just clueless as to what is going on here.
I personally consider the contract that leads to copyright to be one of the least understood violations of human rights. This will become increasingly clear in the years ahead, as the screws tighten ever further in light of the new laws and the new technologies.
At the same time, we are deeply fortunate that the new technologies have also provided a work around. You don’t have to sell yourself into slavery. You can arrange for the publication of your work yourself and put it into Creative Commons. Only this way can you have any hope of immortalizing your work. It is the pathway out of the 100-year sentence.
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It’s odd because people draw on culture, make extensive use of it, but then want to charge others for works based on it. It reminds me of that joke where the scientist tells God he can create life too, but God retorts that the scientist has to provide his *own* dirt. Authors must realize how much of “their” work is really just a recombination of culture.
(btw, small typo midway down: “It’s rights were renewed”)
Thank you.
There are multiple versions of the Creative Commons license. When mentioning placing a work under Creative Commons do you mean for all licenses, including the restrictive by-nc-nd? Or do you mean just by or by-sa? The distinction should be warranted because the difference between the licenses is like light and day. It ranges from being able to use a work for whatever reason, including making derivative works, to being restricted to using a work, without changing it and as long as you don’t use it for commercial purposes.
I don’t understand why -according to this article – there isn’t a competitive market force that limits the exclusivity tie between author and publisher… Wouldn’t all (good) authors prefer to go to a publisher who offers better conditions?
To Artisan:
Seriously.
To the forum at large:
I honestly don’t understand what this post has to do with “intellectual monopoly” or copyright. Unless I am mistaken, the problem has to do with a private contract made between a creator of a work and a publisher. Is it required by law that publishers have 100 year access to the works of the content creators? Admittedly–if that is the case–that is seriously screwed up.
However, if it’s the case that the publishing market has cornered this effective right through use of private contract–how does the Mises Institute of all people have any right to complain on this matter? I mean, shouldn’t the market inevitably create a publishing house that treats their authors better?… or should the government become involved? What’s the solution here or is this just bitching?
Is it the case that an author cannot retain exclusive copyright to their own works and have the printing of their book outsourced? Can an author not take existing works which they have the copyright to and place them in a public domain under a CC license at a later time? If the answer to either of those questions is a “yes,” then I sympathize entirely with Mr. Tucker’s outrage.
However, if neither of those conditions are true, this seems to be nothing more than irrelevant whining–a publishing house could in theory exist which allows authors to distribute their work under exclusive personal copyright and then elect to place that work in the public domain at a later time. If there is such a huge demand for such an institution, maybe the Mises Institute should apply for some venture capital funds, build a business out of that idea, and make a profit. Then they could be real capitalists and not have to rely on donations all the time. Problem solved.
Unfortunately, I think I know the Mises Institute’s answer to this question and it’s that copyright is evil, evil, evil and this “exclusive monopoly” should never be allowed to exist. Instead of actually using a market mechanism which could effectively allow distribution and uphold an author’s wishes to provide their work under a very liberal license like CC, I infer that the Mises Institute’s first solution is to run to the government to fix this problem, which to me seems a very un-capitalist point of view.
It seems like Mr. Tucker would have the government invalidate existing (albeit outrageous) contracts made between private parties. But aren’t libertarians all about “sanctity of contract”? If the author didn’t like it–he shouldn’t have taken the contract in the first place. Am I inferring correctly that authors who voluntary entered into private contracts should be able to renege on them legally?
However, in the case that there really is some legal reason that a private distribution method I mentioned earlier is effectively outlawed, and the problem is not just a lack of market options, I would really like to hear it. That would seem to be outrageous and I think it would make my points null and void.
@Critical Observer:
For starters, copyright does not simply pertain to the contracted parties – but to society as a whole. Try printing a copyrighted book and selling it – go on, I’ll wait here while you serve your time in gaol…
Ok, didn’t work out too well for you, did it? So, you see, copyright prevents uncontracted third-parties from using their property (the book they bought, the quill and parchment on which they will transcribe a copy to be sold) in the manner they so desire.
If enforced by government aggression, IP rights necessarily must trump physical property rights.
@Gary Hall
“For starters, copyright does not simply pertain to the contracted parties – but to society as a whole. Try printing a copyrighted book and selling it – go on, I’ll wait here while you serve your time in gaol…”
Sure, but that’s another issue–and not what the article at hand is about. At hand is Mr. Tucker griping about how an author sold his rights exclusively to the publisher, and then he proceeds to complain about the terms of the agreement. Quite frankly, if the author didn’t like the terms of the agreement, he shouldn’t have agreed to them. It’s quite amusing to see the “it’s not fair” rallying cry coming from a person who voluntarily entered a private non-governmental contract. Nothing regarding the principle of public recognition of copyright forced him to do that–he openly decided to form that particular agreement. I find it hard to sympathize with a person who knowingly sells their rights away and then wants them back.
“Ok, didn’t work out too well for you, did it? So, you see, copyright prevents uncontracted third-parties from using their property (the book they bought, the quill and parchment on which they will transcribe a copy to be sold) in the manner they so desire.”
This is what the fair-use clause is all about under copyrighted works. You can debate whether its “fair” or not. I, quite frankly, don’t care. That’s not my point, nor is this what Mr. Tucker is complaining about. He is complaining about authors who wish to make their works public under CC but have already sold the rights away. They shouldn’t have sold the rights away. Plain and simple. They made an agreement and in turn took money for that agreement. Should they just turn their backs on their existing contract because they don’t feel like it?
Notice how copyright doesn’t even enter this equation. It’s just bone-headed decisions by people either too lazy, indifferent, or stupid to internalize the terms of their contract. If these authors wanted to put their work in CC, they should have done so in the first place, or licensed publishing of their work to a more responsible party. Since apparently no such party exists, I suggested the quite natural recommendation that the Mises Institute put its money where its mouth is and form one. Otherwise, all they have proven is that the current market has led to a publishing cartel, and that the Mises Institute–as well–is too lazy, indifferent, or stupid to do anything about it….
Oh no, not another boring and useless Tucker anti-IP rant !
My advice to writes is to make your book downloadable for free in PDF and find a publisher after around the ten thousandth download.
The reason is very simple. We are living in the era of information flood. Even people who like to read don’t buy as much books as before, as there are so many things on the Internet. As for those do read printed books, the cost of printing is low and the cost of selling it on Amazon is so low that the market is literally flooded with books and from the customer’s point of view the major problems is how to find those few gems in an ocean of manure.
It means that these days the primary scarcity bottleneck is _attention_. And good economic sense advises to always optimize for the primary scarcity bottleneck as that’s where the arbitrage is.
It means that after ten thousand people downloaded your book, you can PROVE people want to read your book, meaning you overcame the scarcity of attention, and you can cut a better deal with a publisher than an author who has not proven it, despite that some people will just download it and not buy it, still, the difference between a popular and unpopular book this days is much bigger than the difference between the number of people who would only buy it if it is not available as a free download.
Another point. I don’t know how publishing goes in America but I just got an offer from a publisher in Hungary: no matter who you are and no matter what you write, they unconditionally promise to print and distribute 3-500 copies, and you in turn promise to buy all the leftovers after a year, if there are any, not on the retail price but on the cost price: at most, around $400 as a total if it really sells 0 copies.
I’m sure there are similar offers in America.
Which means publishing really, realy got very cheap now, really anybody and his dog can be published now, and it proves the primary scarcity is in attention.
I think one of the main points was that on-demand book printing changed the effect contracts of books written in the last 50 or more years. Before, the author could expect rights to revert after ten or so years, when the publisher stopped printing it. Even if all authors immediately stopped signing away their rights to the publisher, this wouldn’t fix all the current works under such control. Another point I believe is that the continual RETROACTIVE extension of copyright effectively lengthens these contracts as well, whereas before the work would have fallen into the public domain. As the article starts out, authors should review the ramifications of contracts, as the EFFECTIVE length of publisher-control has increased, even thought he WORDING of the contract didn’t change.
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