KR BlogEthics

On Intellectual Property and Copyright, Pt. 1

This is the first in a series of exchanges between Meg Galipault and Stuart Bernstein on intellectual property and copyright issues. This question and answer was conducted in during the summer months of 2007. Each post will follow a short set of exchanges. Learn more about Bernstein and the agency he created here.–TM

MG: Why is copyright protection so important? These days, a lot of people assume that it is okay, and perhaps even their right to re-publish work on the Internet. After all, they are making the work available to more readers. What is wrong with that?

SB: That’s a big question. Let me start with what I think a lot of people don’t understand about this debate.

Every publisher and every agent has a subsidiary rights department or a permissions department or both. Or, the agent or publisher devotes some time to administering the subsidiary rights in a work. Whole works or parts of works can be licensed in numerous ways. A short passage from a novel may be used in a classroom as part of a coursepack, a poem may be licensed to a state’s educational testing program, a short story might be licensed to an anthology, or some part of a larger work may be licensed to a
textbook publisher.

The licensing of these rights earns money for the creators of the works being licensed. And while we hope that money is not the engine of literary creation, most of us who work as advocates for creative artists want them to be financially freed to do their work and to make their vital contribution to the culture. Making their work available for free on the internet can work against that goal.

Copyright is meant to leave the decision-making about where or when or how a writer’s work is published in the hands of that writer.

A writer just starting out may feel that the benefits of putting work out there for all to see outweigh the potential loss of control and the loss of future income from that work. Another writer may have sensitivities about the venue or context in which his or her work appears or may not enjoy seeing the work in little bits and pieces or may have very specific thoughts about the way it looks on the page. In any case, it should be the creators of copyrighted works (or those to whom they have knowingly licensed it) who
get to decide where it goes and under what conditions. Anyone else should follow the time-honored rule of ASKING PERMISSION.

Yes, there is such a thing as fair use, but even the U.S. Copyright Office web site, which offers only general guidelines in explaining the concept, recommends that if there is any question of whether the planned use is “fair,” the copyright holder should be sought for permission.

MG: Google claims “fair use” for its Google Print Library Project, which is currently being challenged by the Authors Guild. Do you think Google is doing anything wrong? If so, how? If not, why not?

SB: Everyone understands that when a student quotes a few words or a line from an author in a term paper or honors thesis in order to illustrate a point that this is a crystal clear example of fair use.

Google’s posting of snippets from books protected by copyright differs greatly in its essential character and in its motive. First of all, part of an author’s protection is the protection from copying. Google’s massive scanning program violates this right even before snippets are made available on the internet. Making a copy of a work in copyright requires asking permission. Unauthorized copies floating around increase the potential for more unauthorized copies. Remember, these aren’t copies someone has to pay to have photocopied, or even spend time using the office copier when no one is looking, they are copies that can be duplicated and transported in a matter of seconds at zero cost. Once a digital file gets out, the possibility of duplication grows exponentially.

Furthermore, Google’s motive, despite its genial assertion that the company hopes to benefit civilization and foster progress, is profit. Google is driven by advertising, so making those snippets available and making unauthorized copies of those books helps Google attract advertising and multiplies the viewers of that advertising. When one of my clients’ works is being exploited in this way for a commercial purpose–the opposite of fair use–I want to be asked for permission, then consult with my client, and then give Google a yes or a no.

It comes down to what the copyright holder wants, at least as the rules dictate now. For those who want to give Google these rights, I say, Go for it. Endorse it. Give blanket permission if it pleases you.

I get a little impatient with the not so subtle message that I am being stingy by withholding such rights from Google and the like. In many cases, though, I’ve agreed with publishers that a short, mutually agreeable passage from a book should be allowed as a sample on web sites. More and more, books are being made available in audio form, e-book form, and always in special editions for the reading disabled at no charge by the copyright holder.

Reviewers are certainly more than encouraged to read and write about books by my clients. Those reviews can be searchable on newspaper web sites, (note that newspapers very often charge a fee for delving into their archives). Books can be listed in library card catalogs (whether in a big file cabinet or online), scholars can write whole books about them (though if they want to quote extensively, they have to ask permission), booksellers can describe them in their newsletters and on their web sites, and regular
folks can browse everything in a bookstore or library, even borrow–and for free!

Google, though, isn’t the public library. It’s a giant corporation worth billions.

Stuart Bernstein is a New York-based agent representing over 20 working artists. He began representing writers in 1995.

About the Program

The Kenyon Review Associates Program provides Kenyon students with valuable experience in literary editing, publishing, and programming. KR Associates work closely with Kenyon Review staff, gaining valuable experience in a number of editing, publishing, and programming areas including manuscript evaluation, publicity and marketing, copy editing, developing web site and social media content, outreach programming, event planning and promotion, and other creative and editorial projects

KR Associates attend regular seminars conducted by Kenyon Review editorial staff, visiting readers, and publishing industry professionals. These seminars cover a wide range of topics including editorial philosophy, evaluation of submissions, print and electronic production, marketing, and design.

KR Associates enjoy also enjoy exclusive access to visiting writers and speakers, free issues of The Kenyon Review, and valuable work experience and employment references.

This program is made possible through an initiative of the Kenyon Review, part of the mission of which is to contribute to the enrichment of the academic, cultural, and artistic life of the Kenyon College community.

Requirements and Expectations

  • Submission Evaluation: All Associates are required to read and evaluate eight Kenyon Review submissions per week. Associates who are not able to complete their weekly submission assignments for more than two weeks in a row may not be allowed to continue in the program.
  • Trainings and Seminars: In-person attendance is mandatory at all trainings and seminars. We plan on scheduling six to eight seminars per semester, and most will take place on Thursdays during common hour.
  • Literary Engagement: Associates are expected to participate in literary events on campus and throughout the local community.

Application Details

The application deadline for the 2023-24 program has passed. Applications for the 2024-25 program will open in the fall of 2024. Please check back then for more details.

Questions? Please contact Tory Weber for more information.