How can we navigate through the information landscape that is only beginning to come into view? The question is more urgent than ever following the recent settlement between Google and the authors and publishers who were suing it for alleged breach of copyright. For the last four years, Google has been digitizing millions of books, including many covered by copyright, from the collections of major research libraries, and making the texts searchable online. The authors and publishers objected that digitizing constituted a violation of their copyrights. After lengthy negotiations, the plaintiffs and Google agreed on a settlement, which will have a profound effect on the way books reach readers for the foreseeable future. What will that future be?
No one knows, because the settlement is so complex that it is difficult to perceive the legal and economic contours in the new lay of the land. But those of us who are responsible for research libraries have a clear view of a common goal: we want to open up our collections and make them available to readers everywhere. How to get there? The only workable tactic may be vigilance: see as far ahead as you can; and while you keep your eye on the road, remember to look in the rearview mirror.
When I look backward, I fix my gaze on the eighteenth century, the Enlightenment, its faith in the power of knowledge, and the world of ideas in which it operated—what the enlightened referred to as the Republic of Letters.
The eighteenth century imagined the Republic of Letters as a realm with no police, no boundaries, and no inequalities other than those determined by talent. Anyone could join it by exercising the two main attributes of citizenship, writing and reading. Writers formulated ideas, and readers judged them. Thanks to the power of the printed word, the judgments spread in widening circles, and the strongest arguments won.
The word also spread by written letters, for the eighteenth century was a great era of epistolary exchange. Read through the correspondence of Voltaire, Rousseau, Franklin, and Jefferson—each filling about fifty volumes—and you can watch the Republic of Letters in operation. All four writers debated all the issues of their day in a steady stream of letters, which crisscrossed Europe and America in a transatlantic information network.
I especially enjoy the exchange of letters between Jefferson and Madison. They discussed everything, notably the American Constitution, which Madison was helping to write in Philadelphia while Jefferson was representing the new republic in Paris. They often wrote about books, for Jefferson loved to haunt the bookshops in the capital of the Republic of Letters, and he frequently bought books for his friend. The purchases included Diderot’s Encyclopédie, which Jefferson thought that he had got at a bargain price, although he had mistaken a reprint for a first edition.
Two future presidents discussing books through the information network of the Enlightenment—it’s a stirring sight. But before this picture of the past fogs over with sentiment, I should add that the Republic of Letters was democratic only in principle. In practice, it was dominated by the wellborn and the rich. Far from being able to live from their pens, most writers had to court patrons, solicit sinecures, lobby for appointments to state-controlled journals, dodge censors, and wangle their way into salons and academies, where reputations were made. While suffering indignities at the hands of their social superiors, they turned on one another. The quarrel between Voltaire and Rousseau illustrates their temper. After reading Rousseau’s Discourse on the Origins of Inequality in 1755, Voltaire wrote to him, “I have received, Monsieur, your new book against the human race…. It makes one desire to go down on all fours.” Five years later, Rousseau wrote to Voltaire. “Monsieur,…I hate you.”
The personal conflicts were compounded by social distinctions. Far from functioning like an egalitarian agora, the Republic of Letters suffered from the same disease that ate through all societies in the eighteenth century: privilege. Privileges were not limited to aristocrats. In France, they applied to everything in the world of letters, including printing and the book trade, which were dominated by exclusive guilds, and the books themselves, which could not appear legally without a royal privilege and a censor’s approbation, printed in full in their text.
One way to understand this system is to draw on the sociology of knowledge, notably Pierre Bourdieu’s notion of literature as a power field composed of contending positions within the rules of a game that itself is subordinate to the dominating forces of society at large. But one needn’t subscribe to Bourdieu’s school of sociology in order to acknowledge the connections between literature and power. Seen from the perspective of the players, the realities of literary life contradicted the lofty ideals of the Enlightenment. Despite its principles, the Republic of Letters, as it actually operated, was a closed world, inaccessible to the underprivileged. Yet I want to invoke the Enlightenment in an argument for openness in general and for open access in particular.
If we turn from the eighteenth century to the present, do we see a similar contradiction between principle and practice—right here in the world of research libraries? One of my colleagues is a quiet, diminutive lady, who might call up the notion of Marion the Librarian. When she meets people at parties and identifies herself, they sometimes say condescendingly, “A librarian, how nice. Tell me, what is it like to be a librarian?” She replies, “Essentially, it is all about money and power.”
We are back with Pierre Bourdieu. Yet most of us would subscribe to the principles inscribed in prominent places in our public libraries. “Free To All,” it says above the main entrance to the Boston Public Library; and in the words of Thomas Jefferson, carved in gold letters on the wall of the Trustees’ Room of the New York Public Library: “I look to the diffusion of light and education as the resource most to be relied on for ameliorating the condition promoting the virtue and advancing the happiness of man.” We are back with the Enlightenment.
Our republic was founded on faith in the central principle of the eighteenth-century Republic of Letters: the diffusion of light. For Jefferson, enlightenment took place by means of writers and readers, books and libraries—especially libraries, at Monticello, the University of Virginia, and the Library of Congress. This faith is embodied in the United States Constitution. Article 1, Section 8, establishes copyright and patents “for limited times” only and subject to the higher purpose of promoting “the progress of science and useful arts.” The Founding Fathers acknowledged authors’ rights to a fair return on their intellectual labor, but they put public welfare before private profit.
How to calculate the relative importance of those two values? As the authors of the Constitution knew, copyright was created in Great Britain by the Statute of Anne in 1710 for the purpose of curbing the monopolistic practices of the London Stationers’ Company and also, as its title proclaimed, “for the encouragement of learning.” At that time, Parliament set the length of copyright at fourteen years, renewable only once. The Stationers attempted to defend their monopoly of publishing and the book trade by arguing for perpetual copyright in a long series of court cases. But they lost in the definitive ruling of Donaldson v. Becket in 1774.
When the Americans gathered to draft a constitution thirteen years later, they generally favored the view that had predominated in Britain. Twenty-eight years seemed long enough to protect the interests of authors and publishers. Beyond that limit, the interest of the public should prevail. In 1790, the first copyright act—also dedicated to “the encouragement of learning”—followed British practice by adopting a limit of fourteen years renewable for another fourteen.
How long does copyright extend today? According to the Sonny Bono Copyright Term Extension Act of 1998 (also known as “the Mickey Mouse Protection Act,” because Mickey was about to fall into the public domain), it lasts as long as the life of the author plus seventy years. In practice, that normally would mean more than a century. Most books published in the twentieth century have not yet entered the public domain. When it comes to digitization, access to our cultural heritage generally ends on January 1, 1923, the date from which great numbers of books are subject to copyright laws. It will remain there—unless private interests take over the digitizing, package it for consumers, tie the packages up by means of legal deals, and sell them for the profit of the shareholders. As things stand now, for example, Sinclair Lewis’s Babbitt, published in 1922, is in the public domain, whereas Lewis’s Elmer Gantry, published in 1927, will not enter the public domain until 2022.1
To descend from the high principles of the Founding Fathers to the practices of the cultural industries today is to leave the realm of Enlightenment for the hurly-burly of corporate capitalism. If we turned the sociology of knowledge onto the present—as Bourdieu himself did—we would see that we live in a world designed by Mickey Mouse, red in tooth and claw.
Does this kind of reality check make the principles of Enlightenment look like a historical fantasy? Let’s reconsider the history. As the Enlightenment faded in the early nineteenth century, professionalization set in. You can follow the process by comparing the Encyclopédie of Diderot, which organized knowledge into an organic whole dominated by the faculty of reason, with its successor from the end of the eighteenth century, the Encyclopédie méthodique, which divided knowledge into fields that we can recognize today: chemistry, physics, history, mathematics, and the rest. In the nineteenth century, those fields turned into professions, certified by Ph.D.s and guarded by professional associations. They metamorphosed into departments of universities, and by the twentieth century they had left their mark on campuses—chemistry housed in this building, physics in that one, history here, mathematics there, and at the center of it all, a library, usually designed to look like a temple of learning.
Along the way, professional journals sprouted throughout the fields, subfields, and sub-subfields. The learned societies produced them, and the libraries bought them. This system worked well for about a hundred years. Then commercial publishers discovered that they could make a fortune by selling subscriptions to the journals. Once a university library subscribed, the students and professors came to expect an uninterrupted flow of issues. The price could be ratcheted up without causing cancellations, because the libraries paid for the subscriptions and the professors did not. Best of all, the professors provided free or nearly free labor. They wrote the articles, refereed submissions, and served on editorial boards, partly to spread knowledge in the Enlightenment fashion, but mainly to advance their own careers.
The result stands out on the acquisitions budget of every research library: the Journal of Comparative Neurology now costs $25,910 for a year’s subscription; Tetrahedron costs $17,969 (or $39,739, if bundled with related publications as a Tetrahedron package); the average price of a chemistry journal is $3,490; and the ripple effects have damaged intellectual life throughout the world of learning. Owing to the skyrocketing cost of serials, libraries that used to spend 50 percent of their acquisitions budget on monographs now spend 25 percent or less. University presses, which depend on sales to libraries, cannot cover their costs by publishing monographs. And young scholars who depend on publishing to advance their careers are now in danger of perishing.
The Copyright Term Extension Act of 1998 retroactively lengthened copyright by twenty years for books copyrighted after January 1, 1923. Unfortunately, the copyright status of books published in the twentieth century is complicated by legislation that has extended copyright eleven times during the last fifty years. Until a congressional act of 1992, rightsholders had to renew their copyrights. The 1992 act removed that requirement for books published between 1964 and 1977, when, according to the Copyright Act of 1976, their copyrights would last for the author's life plus fifty years. The act of 1998 extended that protection to the author's life plus seventy years. Therefore, all books published after 1963 remain in copyright, and an unknown number—unknown owing to inadequate information about the deaths of authors and the owners of copyright—published between 1923 and 1964 are also protected by copyright. See Paul A. David and Jared Rubin, "Restricting Access to Books on the Internet: Some Unanticipated Effects of U.S. Copyright Legislation," Review of Economic Research on Copyright Issues, Vol. 5, No. 1 (2008).↩
The Copyright Term Extension Act of 1998 retroactively lengthened copyright by twenty years for books copyrighted after January 1, 1923. Unfortunately, the copyright status of books published in the twentieth century is complicated by legislation that has extended copyright eleven times during the last fifty years. Until a congressional act of 1992, rightsholders had to renew their copyrights. The 1992 act removed that requirement for books published between 1964 and 1977, when, according to the Copyright Act of 1976, their copyrights would last for the author’s life plus fifty years. The act of 1998 extended that protection to the author’s life plus seventy years. Therefore, all books published after 1963 remain in copyright, and an unknown number—unknown owing to inadequate information about the deaths of authors and the owners of copyright—published between 1923 and 1964 are also protected by copyright. See Paul A. David and Jared Rubin, “Restricting Access to Books on the Internet: Some Unanticipated Effects of U.S. Copyright Legislation,” Review of Economic Research on Copyright Issues, Vol. 5, No. 1 (2008).↩