May 1, 1991

From The Chronicle of Higher Education

Note: This essay offers perspectives of me and my coauthor Carl Hausman from our perspectives as textbook authors on issues related to copyright that arise when professors produce course packets without securing permission of textbook publishers. It is available to Chronicle subscribers only by clicking here: Honoring Copyrights Should Be Simple Decency – Archives – The Chronicle of Higher Education.

Honoring Copyrights Should Be Simple Decency

By Philip Benoit and Carl Hausman

As textbook authors, we are pleased by the New York District Court’s recent decision against Kinko’s Graphics Corporation, but we think it is important to clarify why we view the appropriation of our works without permission and payment of fees less as a question of economics and more as an issue of simple decency.

Between us, we have written nine college textbooks and several mass-market books. Recently, one of our publishers was among several that sued Kinko’s; the judge in that case ruled that Kinko’s had infringed on the publishers’ copyrights by reproducing, at the direction of college and university faculty members, portions of various books that Kinko’s then sold to students as anthologies.

One of the first salvos fired in the battle against the unauthorized use of copyrighted material in custom-produced anthologies involved one of our textbooks, Modern Radio Production, published by Wadsworth Publishing Company. Shortly before formal action was brought against Kinko’s by other publishers, a Wadsworth official came across an anthology that contained all of one chapter of our book and large portions of two other chapters — about 10 per cent of the entire text. Altogether, this amounted to the wholesale appropriation of about a month’s worth of our labor.

The publisher wrote to the professor who had commissioned the anthology, asking him to supply a copy of the document that granted him permission to use the material. When no response was forthcoming, a telephone call revealed that no permission had been sought.

The professor felt that he was abiding by the fair-use provisions of the copyright law, and therefore had just gone ahead and used the material without a second thought.

After the professor’s understanding of fair use was improved through his conversation with the publisher’s representative, he agreed to pay a fee of 10 cents per book page — a total of 47 dollars and 60 cents for the 17 copies of the anthology he had already produced and distributed.

When the publisher notified us of the incident, we shared a sense of indignity that our work had been repackaged into an entirely new format without a thought that we should be informed.

Therefore we take satisfaction in the court’s ruling because it restores a measure of dignity to the relationship of author and publisher and the constituencies we seek to serve by establishing a requirement that authors and publishers be consulted before our material is used in circumstances other than we intended. In this way the ruling reinforces the idea that intellectual property deserves as much protection as physical property; it cannot be “borrowed” without the consent of the owner. The appropriation of material that consumed substantial amounts of our time, energy, and resources is, in our minds, tantamount to theft.

Strong language? Perhaps, but anyone who has written a textbook realizes that the work is tedious, demanding, and not always particularly rewarding. Scholarly credentials are generally built on research-based publication. While textbooks sometimes do produce substantial royalties, that cannot be taken as a given. Advances are typically small in comparison with those offered by publishers to authors of trade books, and a textbook may not earn anything beyond the advance (much of which may be consumed by the authors’ expenses for photography, photocopying, travel, and research activities). In essence, a textbook is a crapshoot with about six months to a year of your working life at stake — and the only real reward, other than personal satisfaction, is monetary.

As a result, the idea that material can be reproduced in any form that anyone desires, without so much as notification of the authors and publishers, seems arrogantly exploitative. While appropriating authors’ works for anthologies may be convenient for professors, the commercial copy chains that package these anthologies are making money using the work of others.

We are not arguing against the occasional reproduction of an article or a page of a book for use as a class handout. We are contending that a company that earns a profit by repackaging a substantial portion of someone else’s work should have to seek permission and pay for the right to reproduce the product of that person’s labors.

And we further contend that the professors who indirectly subsidize this practice by requiring students to purchase the purloined works diminish the marketplace for ideas by condoning the misappropriation of labor and income.

It is dismaying to hear professors say they want to use other people’s work in their courses and give them credit, without having to worry about seeking permissions. How might those professors react if someone “borrowed” their syllabi, exams, lecture notes — material they were paid to create and in which they had invested great effort — and used them wholesale in a book or instructor’s manual, without their knowledge? Would they be satisfied to be magnanimously given “credit”?

Authors who have been through the rigorous process of writing, review, and revision feel no less violated than would the professors whose teaching materials were appropriated and used without their permission.

In the wake of the Kinko’s decision, we as authors may or may not see an increase in revenue from sales of our existing books if those who package anthologies stop doing so because they find it too inconvenient to seek permissions. And we will receive only a percentage of the modest permission fees that may be charged for the use of our published work, even if copy shops do continue to produce anthologies after getting the required permissions. (As authors, we earned $6.63 from the permission fees eventually paid for the use of the material taken from Modern Radio Production.)

What we will gain is the dignity of knowing that the time and effort we have invested in our textbooks is not being stolen under the guise of being “borrowed.” We’ll also gain the satisfaction of knowing that what we have written is being used by honorable men and women.

Philip Benoit is director of communications at Dickinson College. Carl Hausman is Mellon Fellow of the Humanities in the department of journalism and mass communications at New York University.