Colleagues,
 

Thanks for all the responses and comments on the "scholarship and copyright" issue I posted for discussion on 18 June (Sydney time). Below I offer some responses, with the author of the relevant communication in upper case at the start of each paragraph.

 

GARY MONGIOVI (1st). I also am not a lawyer, but GM's point about Smith's 200-plus-year-old words surely not being under copyright makes common sense. I pointed out in my original communication that I could have had recourse to an earlier out-of-copyright edition (at least for Smith works published prior to the Glasgow Edition). But if I had called OUP's bluff, so to speak, using GM's argument, and keeping my text exactly as it was (quoting and citing the Glasgow Edition), and OUP pursued it legally, would they win? (I leave aside the question of whether Routledge would have been willing to go along for that ride.) I don't know; but they could certainly prove that I had entirely relied upon their edition for all my quotations of Smith. The question is whether they have copyright over that particular presentation and formatting of Smith's centuries-old words. (Note also: Smith's TMS and his WN each went through six editions during his lifetime, so that the Glasgow Edition texts are not precisely identical to any of the particular earlier editions.)

 

MICHAEL PERELMAN (1st). This is astonishing information, as to copyright over page citations, but serves to support the validity of OUP copyright over (their) Smith.

 

JAMES ALVEY. I am sorry that JA had similar dealings with OUP to me, six years earlier. It is interesting to have confirmation that I'm not the first to be stung by them, and for a fairly similar fee. (Presumably we are not the only two to be stung.) But the DIFFERENCE between JA's episode and mine also suggests a certain arbitrariness in the fee size: 985 2002 pounds for 14,000 words, versus 950 2008 pounds for 24,000 words. Or perhaps there are some kind of dramatically decreasing marginal returns from quoting Smith's words, beyond 14,000 or so. (One private response I received, from a person who previously worked for a major US publisher, also suggested that these procedures were undertaken in a rather ad hoc manner. Recall in this context the point of information I gave in my original post: for TMS, I was granted a free permission, whereas the rather dull Smith "Correspondence" volume attracted a fee of 100 pounds. I would presume that, after WN, TMS is the most quoted of Smith's extant texts.)

 

MIKE WHITE. No one has been able to answer MW's question -- as to who is the "beneficiary" of Smith's estate, to whom OUP referred in correspondence with JA, as the supposed recipient of the permission fees collected by OUP. I find the implication highly implausible. Perhaps "the beneficiary of the estate of Smith" is an OUP euphemism for ... OUP. (See also my comment on the Liberty Fund involvement below.) If, rather, it indicates that the long held presumption that Smith died without issue is in fact not true, it would add a surprisingly spicy new dimension to his biography. OUP, PLEASE GIVE US THE (HOPEFULLY) SALACIOUS DETAILS!

 

GARY MONGIOVI (2nd). GM is probably right, that OUP has never chased anyone after the fact for copyright violation in relation to use of the Glasgow Edition (or other such old texts). But who would like to step up to the plate to be the test case? (And you will have to convince your own publisher to go along for the ride.) I could imagine OUP pursuing the Machiavelli technique at some point: get one head on a pole in the public square, to warn off everyone else.

 

MICHAEL PERELMAN (2nd). MP's follow-up to GM (2nd) reiterates his earlier point in relation to case law and sounds dead right: not Smith's long-ago-written words but the Glasgow Edition specification (recall the multiple editions referred to above) and format of all those thousands of words is what they claim ownership in. (In relation to the OUP comment to JA concerning "the beneficiary" of Smith's estate, one then wonders how they could possibly owe anything to any Smith descendants, at least for his two published works, TMS and WN.) But as I pointed out in my first post, it would be very user unfriendly in 2008 to be quoting and citing Smith in non-Glasgow-Edition texts. (For the 4 volumes of the Glasgow Edition which are largely not previously published before the Glasgow Edition, I don't think I've exceeded the fair dealing restrictions, considering each of them as free standing works -- though maybe in the case of the Lectures on Jurisprudence I have, I haven't bothered to recheck that from my files. I didn't think too much about the size and number of quotations from each of the six volumes separately, when sending my initial permission request to OUP - because it hadn't occurred to me that there would be a payment demanded! So the 100 pounds I paid for the "Correspondence" was probably not necessary, if that volume could be construed as a free-standing work for copyright/permissions purposes.) In relation to MP's further point concerning escaping the clutches of OUP via quoting the Liberty Fund texts, this depends upon the contractual relationship between OUP and Liberty Fund -- but I presume that that relationship ensures that OUP retains all rights beyond Liberty Fund's right to publish the Glasgow Edition volumes (I could be wrong). See my further comment on the role of Liberty Fund, below.

 

SUMITRA SHAH. SS concludes with the point that public agitation is needed. Off the top of my head, I can think of only two avenues: that academic societies write to guilty publishers indicating their strong disapproval; that some forms or other of boycott be applied to those publishers. In relation to the latter, how about a refusal to referee for OUP-published journals? Of course, as with all boycotts, the immediate problem with the latter strategy is the collateral damage.

 

LIBERTY FUND INVOLVEMENT. There is another side issue on this matter, with regard to OUP in particular, which I did not mention in my original post -- concerning the involvement of the Liberty Fund in the making of the Glasgow Edition. I don't know how widely this story is known, or whether it is in the public (published) domain. It was told to me by someone very close to the making of the Glasgow Edition. It seems that at some point during the construction of the Glasgow Edition, OUP was contemplating abandoning the project as too expensive. The Liberty Fund then came to the rescue and bankrolled, in some measure, the completion of the edition. This role of the Liberty Fund, in fact, is the basis upon which they gained rights to publish their handsome (and very reasonably priced), quality paperback editions of the Glasgow Edition. I wonder if they're getting a cut of the OUP permissions revenue? (I doubt it.) Of course, their cheap editions are provided in the manner of missionaries providing the Word of God (or at least, from Liberty Fund's perspective, one of the gods) to the world at a not prohibitively expensive cost. I wonder what they would make of OUP trading the words of a god, words that Liberty Fund part-bankrolled the production of, in the form of the Glasgow Edition, for filthy lucre? (I have no idea how large the Liberty Fund funding was, relative to OUP expenditures on the project.)

 

Finally, I don't wish to exaggerate the scope of this issue I have raised. As I understand the law, if no SINGLE quote from a copyright source exceeds 300 words, then one is within the "fair dealing" allowances. That is to say, one could quote 10,000 words -- even 100,000 words -- of the Glasgow Edition Smith, and so long as no single quote was above 300 words, no permission of the copyright holder would be required. (But I could be wrong about this.) For those who have not gone through this kind of permissions process, at first glance the fair dealing allowances might look small, but they are quite substantial actually. My Smith book quotes many, many primary sources (other than Smith), and lots and lots of secondary literature. But I only had one non-Smith copyright source where I had exceeded those allowances -- a beautiful summary statement on the medieval just price by O. Langholm -- and I was able to "prune" this quote by just a few words, to get it below 400 (merely for the convenience of avoiding chasing up the permission).

 

Nevertheless, a substantial fee such as OUP is charging is a disgrace. As I had reason to ponder during the working out of this saga, it is one thing to undertake scholarship for no pecuniary gain; it is rather another to be obliged to pay for the privilege. This is particularly so when one keeps in mind that without the "product" generated, collectively, by the academy, university and academic publishers like OUP would have virtually damn nothing to sell. Perhaps it can also be said that university presses are more culpable than other publishers, on this kind of issue, because they enjoy favourable tax treatment as not-for-profit organizations; but I am not certain of the truth of that (I mean, the favourable tax treatment).


Regards,

Tony Aspromourgos


POSTSCRIPT. Just before copying and pasting my above communication into this email, I read Julian Wells's comment sent almost exactly two days ago, 23 June Sydney time (I have been buried under marking exam papers in the interim). His point at the end about "variants" is I think the same point I was making in my parenthetical comment at the end of my response to Gary Mongiovi's first communication, above.