LIBRARIES, USERS & THE PROBLEMS OF AUTHORSHIP 

IN THE DIGITAL AGE

Laura N. Gasaway







                                                                                            52 DePaul Law Review 1193 (2003)
 

I.  INTRODUCTION

The concept of authorship, so central to copyright law, also has very practical implications for libraries and their users for a number of reasons.First, the often contentious relationship between copyright owners and librarians may be sharply contrasted with the relationship between libraries and authors.The latter is hugely positive.Libraries cannot exist without authors who produce the works that are housed in library collections.Authors often make extensive use of library collections to perform the necessary research for their works.In fact, many authors acknowledge and thank librarians for their assistance in helping to locate arcane information so crucial to their work.A perusal of the preface in many works reveals the high regard in which authors hold libraries and librarians who are often mentioned by name.Second, libraries even contribute to an author’s reputation, not only by making their works available to various readers, but also by inviting them to present their works at public gatherings in the library, and featuring authors in newsletters and in library displays.An excellent example is the Chicago Public Library’s One Book, One Chicago program where everyone in the community reads the same book and discusses it.[1]Libraries further enhance the reputation of authors by serving as the repositories of published works, organizing and preserving them and making them available to users.[2] Third, in many foreign countries, library activity actually help provide financial support for authors under the Public Lending Right particularly in European countries, Canada, Australia and New Zealand.Authors receive compensation when their works are lent by libraries, but often it is the country’s government rather than the library or its users which actually compensates the authors.[3]Fourth, many authors feel a great love for libraries, and the reverse is certainly true.Library associations present many book awards to the “best” in a category each year to recognize outstanding authors.Examples include the American Library Association’s Caldecott Award[4] for the best in children’s picture book, its Newberry Award[5] for outstanding contribution to children’s literature and the Coretta Scott King Award presented to “authors and illustrators of African descent whose distinguished books promote an understanding and appreciation of the ‘American Dream.’"[6]State library associations present state and regional awards, especially for children’s works and regional fiction.[7]Fifth, support of authors sometimes even involves litigation.Some of the national library associations filed an amicus brief on the side of Tasini in the Tasini v. New York Times[8] case in which freelance writers successfully sued publishers over their electronic rights.It is interesting that the American Library Association (ALA) and Association for Research Libraries (ARL) supported authors even though the closer interest may have been that with publishers in this instance.The resulting removal of articles authored by freelance writers from the New York Times database was not positive for libraries and their users, but both ALA and ARL believed that their traditional support for authors could not be overlooked and that this compelled them to file an amicus brief on the side of writers.[9]Sixth, librarians also write books and articles, some dealing with library science, some with intellectual property, but also with a host of other subjects.Several mystery writers are reformed librarians[10] and a number of authors set their mystery stories in libraries such as Jo Dereske’s Miss Zukas series.But library collections would not be very rich if the only works in the collections were works written by librarians.Libraries depend on authors, and they have always have done so.Lastly, authors provide one of the standard elements of bibliographic control.Bibliographic control is the mastery over written and published records, which is provided by and for the purposes of bibliography.Bibliographic control is defined as 
          the process of describing items in the bibliographic universe and then providing name, title, and subject access to the descriptions,
                   resulting in records that serve as surrogates    for the actual items of recorded information.Bibliographic control further requires
                   that surrogates records be placed into retrieval systems where they act as pointers to the actual information packages.[11]


 

The relationship between publishers and librarians is considerably more problematic by contrast.It is often a love/hate relationship, and yet libraries and publishers are very interdependent today.Libraries often are the only purchaser of expensive esoteric works and journals that are invaluable for serious research.Librarians are asked to suggest new titles and useful works that a publisher should consider producing.Publishers like to offer “deals” to libraries on purchases, they sponsor events at library association meetings, present librarians with small company gifts that advertise the company, and the like.But there are many antagonisms too, such as exorbitant journal pricing, (not so much in law, but in science and technology.[12]Not only are journal prices excessively high, but often the library subscription rate is five or six times that of an individual subscription.[13]Commercial journal publishers unabashedly discuss the maximization of profits for their shareholders and view libraries as a huge market, a source of these profits.While library budgets have increased, they have not kept pace with the rate of inflation in publishing; further, the increasing volume of material published annually is overwhelming.


 

Moreover, librarians watch with alarm what they view as the “great copyright grab” where publishers and producers are holding copyright in more and more of the works produced while at the same time seeking to restrict the rights of users to access these works and to use them.Librarians worry that publishers are moving toward a pay-for-use world, which will exacerbate the problems of the information poor.


 

In this article I will address authorship generally and then specifically as it relates to libraries with special focus on authors as the central element in bibliographic control.The article contrasts the view of authorship as it is used in libraries with that in copyright law and concludes with particular problems for libraries associated with digital works and authorship.
 

II.  AUTHORSHIP GENERALLY









What was it that made human beings first want to document their ideas and share their creative renderings?It may have begun with Paleolithic cave paintings, but it could have begun even earlier.[14]Some of the earliest cuneiform writing is from Sumeria recorded on clay tablets. Sumarian-Bablyonian epic poetry began as oral recitations that were eventually recorded around 1200 B.C. as the Gilgamesh Epic.The same migration from the oral to the written tradition occurred in ancient Greece as evidenced by the Homeric tales between 900-700 B.C., which eventually were preserved in written form as the Iliad and the Odyssey.Recorded by hand, these works were copied over and over again, and it was inevitable that errors would occur in this process of hand copying.Later manuscript copies likely bore little relation to the original.Around the seventh century A.D. wood block printing developed in China and was used to produce books.Wood block printing was slow to be used in Europe, but by the 1300s it had been widely adopted.[15]Although Johann Gutenberg is credited with the invention of moveable type in Mainz, Germany in 1450, there is increasing evidence that it was known and used as early as 1234 in Korea.[16]Books were printed in Europe from the mid-15th century forward, and printing made it possible for print houses and publishers to develop and profit from producing books.Further, authors now had the ability to distribute their works widely to share their ideas.[17]


 

As a group of writers began to derive their livelihood from their writings, the concept of authorship in the modern sense arose.[18]


 

            The new conceptions of writing and reading entailed seeing the writer as an originator one who no longer

                   produced texts as a cog in a publication machine, but instead created them as an ‘author.’It is this
                   emphasis upon creativity as the mark of authorship that informs current legal discussion of copyright.[19]

 

In the Romantic construct of authorship, there is a hierarchy that ranks works of the imagination higher than other works.[20]And copyright law presumes that authors who have created the property are entitled to special or unique rewards because of the social value of their creations.[21]The Statute of Anne[22] made the first reference to author in copyright in England in the 18th century.Although the statute referred to authors, the real intention behind the statute was to protect the rights of booksellers and printers.[23]But gradually, the concept of authorship began to replace the interests of publishers in English law.The term “ … [author] took on a life of its own as individualistic notions of creativity, originality, and inspiration were poured into it.‘Authorship’ became an ideology.”[24]


 

In the course of the last three centuries, the fiscal imperatives of copyright have become aesthetic and legal constructs, changing our definitions of texts, copyright and authors.In the case of copyright, what was once a law to ensure publishers’ and proprietary rights to products is now an often unspoken belief that solitary authors have original ideas, and that those authors should be able to control those ideas as an expression of their originality.[25]


 

Yet, copyright is not the only way to support authors.They could be subsidized directly by the government, be awarded grants (such as from the National Endowment for the Arts),[26] or through a Public Lending Right.


 

Martha Woodmansee writes that society tends to idealize the lone author working to produce a copyrighted work.[27]Libraries also are likely to see authors that way and there certainly are many examples to support this view.We envision the author pecking away on the computer keyboard to produce excellent mystery novels, historical fiction or legal tomes.This is the ideal author – a loner who watches people and gathers characters like most of us gather coat hangers or the author is one who use works of nonfiction just to uncover sufficient historical details to set the work more or less accurately in a period of history.


 

What of works of nonfiction?Are the writers of these works not authors too?Certainly they are, but we just do not idealize them to the same extent.We think of them as serious researchers working in dusty libraries to uncover little know facts to help support arcane arguments.Or analyzing and synthesizing scientific writings to produce new works that will make a difference, which, in the best view will make a difference in the world at large, and at worst, will at least support the author’s quest for tenure at an in institution of higher education.But creativity is not reserved solely for works of fiction, artistic and dramatic works.
 

A.   Importance of Authorship

Copyright law provides that an author is the person or persons responsible for creating an original work of authorship that is fixed in a tangible medium of expression.[28]Solo authorship is normally what one envisions when thinking about who is an author.Some scholars even differentiate between writers and authors and define an author as one who more or less has a dialogue with the public, as opposed to a writer who just writes out words.[29]

 

The term “authorship” generally is used as a shorthand method to encompass the relationships between a person or persons and the content of an item which denotes responsibility for either the creation or modification of the intellectual or artistic content of the work.[30]For libraries, authorship is a very important key to grouping works or documents by subject matter, quality and level of knowledge. In fact, the author often implies subject matter often since authors tend to write in a limited number of subject fields or genre, and they possess different levels of knowledge even about the same matters.The author also tells readers about the quality of the knowledge the individual has or communicates.A reader may determine this herself or by reading reviews of the author’s works.Further, author tells the reader something about the level of the work since some authors write only for adults, others only for children, etc.[31]


 

There is a sort of magic in solo authorship because society honors and admires those authors who can produce great works as they labor alone.But that magic is not really related to copyright or to library issues.Additionally, there are others who seek to be considered as authors.


 

Among professional indexers, for example, there is a movement to call themselves authors and to be credited with authorship for the scholarly work they perform in creating the index to a work.“The interpretation of text for an index is not unlike the process of sifting through hours of transcribed interviews and research materials gathered for a feature story. In both situations, it is necessary to pull the important topics out and make them explicit.”[32]Members of the public seldom consider indexers to be authors, but the same may be said of many indexers themselves who fail to consider that they might be authors.Most indexers are anonymous, and at least one indexer has opined that if the indexer were identified at the first of each work, the quality of indexing itself would improve.Further, if editors realized that they were dealing with authors, then indexers would be given the same degree of editorial control that other authors receive.[33]If a stand alone index meets the copyright requirements of originality and fixation, the index is copyrighted,[34] but those indexes that are described as “back of the book” indexes are not.


 

Translators are another example of contributors to a work who are not recognized as authors in library catalogs but may be so recognized in copyright law.“Translation is stigmatized as a form of writing, discouraged by copyright law, depreciated by the academy, exploited by publishers and corporations, governments and religious organizations.”[35]Since translations are defined as derivative works in the copyright law,[36] there is only a narrow area for translation.[37]The reason the role of the translator as an author is marginalized might be the prevailing concept of authorship which focuses on originality and self expression.Translation, on the other hand is viewed solely as derivative.“Given the reigning concept of authorship, translation provokes the fear of inauthenticity, distortion, contamination.”[38]Moreover, because of its nature as a derivative work, translation challenges the notion of scholarship. It is impossible to produce a translation that is not somewhat slanted by cultural views, and yet academic institutions venerate foreign language and literature, and do not even want to consider cultural conditions under which languages are taught.[39]While a translation is a derivative work, the copyright law recognized this type of authorship and a work is eligible for copyright if it meets the originality and fixation requirements.Nonetheless, a library will enter the work in the catalog, i.e., “catalog” the work under the name of the author of the original work with only an added entry for the name of the translator, if there is any catalog entry for that individual at all.There are scholars who advocate for translation to be recognized as a distinct type of authorship which involves collaboration between divergent groups as opposed to a form of personal expression.[40]

B.   Collaboration

    As stated above, the myth of the solitary author often is just that, a myth.In fact, most of the writing that is done in the professional setting in America is the result of collaboration.[41] Collaborative works have traditionally been more likely to be works of nonfiction rather than fiction.Yet, collaborative works may be more valuable and contribute to the progress of science and the useful arts to a far greater extent than a novel, and yet it is difficult to feel warm and fuzzy about a collaborative group that develops a new legal encyclopedia.In some disciplines, collaboration is the norm rather than the exception. The ability to bounce ideas around a group and clarify both perception and presentation of the work is extremely useful, and in many scientific fields important papers have two, three or many authors.So, joint authors are often the norm, especially for works of nonfiction, but there are also works of fiction that are co-authored.

 
The Copyright Act recognizes joint authorship when a work is prepared by two or more authors “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”[42]Many disputes have arisen between individuals who are involved in the production of a work over whether they should be considered joint authors.[43]Often, the dispute is over royalties and the desire of a contributor to receive continuing compensation for his contribution when the work is commercialized and especially if the work is commercially successful.Since the law provides that initial ownership of the copyright vests in the author, the importance of being a joint author is obvious.

 

Co-authorship also is quite common in the publishing industry.If the work is a work for hire, the employer is the author.[44]Publishers themselves may be the author under the work for hire doctrine.[45]A work for hire is defined as a work produced by an employee within the scope of her employment or a work that is ordered or commissioned for use as a collective work.[46]For this latter category, however, only certain types of contributions are defined as being a part of such a collective work.These include contributions to a motion picture, as a translation supplementary work, as a compilation, instructional text, as a test or answer material for a test or an atlas.Furthermore, the parties must agree in writing to the above arrangement.[47]


 

Collaboration on large research projects and the resulting writing that summarizes the results present complicated issues for determining authorship, and the rules for such determination vary across academic disciplines and fields.Since authorship determines tenure and promotion, it is an important issue for faculty members.Academia is replete with stories of young authors who are entirely omitted from the authorship line unfairly but who have little recourse if they want to preserve their jobs.While there are ethical guidelines for authorship in various disciplines, they do not always make much difference even though it is unethical conduct for a senior researcher to take credit for something produced by a younger colleague.Some researchers have even petitioned the federal government to develop better authorship rules for works produced with federal funding. Perhaps even more promising is that some research labs have decided to solve the problems caused over wrangling for authorship by publishing their work under the name of the lab as the author.[48]


 

If more writing is collaborative today, the electronic era is hastening the demise of the idea of the author working alone.[49]Moreover, various contributors to works may seek recognition as co-authors.For example, in December 1999, cinematographers from 22 European countries met Torun, Poland, and produced the Torun Declaration 99.The Declaration states that the work of cinematographers on films as works of art depend on their creative work as the author of the images.Therefore, European cinematographers seek recognition as co-authors of films and other audiovisual works, and they claim moral rights as authors.[50]

C.   Corporate Authorship

    The reality today is that more and more works are produced as works of corporate authorship, a concept with which libraries have always been familiar.Whenever I conduct copyright law workshops, not a single attendee asks me to explain the meaning of corporate authorship.The same cannot be said for faculty members who frequently ask, as do law students.To some extent, corporate authorship is a fiction, since a corporate entity itself is incapable of writing. But certainly employees of the corporation are capable of the feat, and because of employment contracts, the corporation claims responsibility for the writing of the work.The relationship between a person or corporate body and the content of the item described in a bibliographic record is described as follows.An individual may be responsible for the creation of a work, for modifying, compiling or performing it.A corporate body may be responsible for the emanation of the content.[51]If it is hard to feel warm and fuzzy about collaborative works, it is virtually impossible to so feel about corporate authorship, thus the ideal of the solitary author continues.

 

IIl.  AUTHORSHIP, LIBRARIES AND BIBLIOGRAPHIC CONTROL


A. General

    Librarians have a very practical view of what authorship means: it is a key element for bibliographic control.Depending on their job titles, assignments and proclivities, librarians are more or less familiar with the detailed rules for determining authorship for bibliographic control.In fact, libraries were identifying works by the name of the author long before author’s rights developed in the 17th century.[52]

    What does the concept of authorship mean to library users?If one were to ask them, probably not much. Most library users simply have not pondered the matter.