The 100-Year Sentence

by Jeffrey A. Tucker

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, when 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 discouraged 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 has 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 could make if you valued the free distribution of information. It ties the manuscript up for another 60 plus years.

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 went 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.

March 27, 2009

Jeffrey Tucker [send him mail] is editorial vice president of www.Mises.org.

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