At 12:18 PM 10/15/1998 -0500, Siva Vaidhyanathan wrote:

>The bill would also
>extend corporate copyright by 20 years, so the Mark Twain Project's
>Notebooks and Letters collections published since 1978 (except for those
>portions previously published by Paine, et al) will enjoy 20 more years of
>protection and monopoly pricing.

Monopoly pricing? The very notion suggests an inadequate grasp of
publishing economics. True, if all of Mark Twain's letters and journals
were suddenly in the public domain, there surely would be more competition
to publish some of them in ways that might prove lucrative (and only in
such ways). But would there be any competition to publish a complete
scholarly edition of them? Frankly that seems unlikely (the "monopoly" from
hell). Under the present arrangement, the combination of revenue and
royalties earned on each volume does not begin to equal the production and
storage costs until at least a dozen years after first publication---at
which point the publisher is faced with the problem of how to reprint, and
how to meet a continuing demand of 5 to 10 copies a year for the next 50
years. The cost of producing the physical books is subsidized by the state,
and the cost of editing them is subsidized by the NEH and by the state, not
to mention many individuals and foundations. The up-front financial burden
is so great, and the likelihood of income so small, that copyright
protection serves not to prevent competitive scholarly editions, but only
to prevent publishers and professors from issuing lucrative *selections*
from them without first making some gesture of reimbursement toward the
Press for part of its original costs. Several major and a few minor
publishers have reprinted our Mark Twain texts for only minimal fees.

Without some such mechanism, no one would be willing to publish a scholarly
edition. But it also needs to be said that so long as the Press has had its
"exclusive" right, it has freely extended that right to countless scholars
seeking to publish or quote from unpublished writings by Mark Twain in
advance of the edition. I myself have *never* turned down such a request.
All anyone has to do is ask. But I suppose for the generation raised on the
ethic of the internet, asking for permission is almost as hard as
acknowledging publicly what the source of your Mark Twain e-text is.

Simply put, the value to the public of copyright protection in this case is
that it enables *someone* to publish and to keep in print dozens of very
expensive-to-produce books that will simply never sell enough copies to
make the publisher, or anyone else, very much money---indeed, that could
not be sold at their "monopoly price" without extensive subsidies far in
excess of the royalties paid and the revenue generated. That includes, by
the way, very substantial subsidies from the copyright owner, the Mark
Twain Foundation---a charitable foundation obliged by law to distribute its
income every year in support of various Mark Twain enterprises of its
choosing. These have in the past included annual grants to the Mark Twain
Journal, to the house at Hartford, to the Elmira Center, to the Mark Twain
Project, and doubtless other related efforts not known to me. It hardly
seems fair to liken this copyright owner to a Disney or a Microsoft.

>All of the MT material that remains unpublished in 2002 will enter
>the public domain that year. That means the Mark Twain Papers and the Trust
>will no longer have control over the unpublished material or its royalties.
>So scholarship on American authors who published before 1978 will become
>much easier in 2002.

The point that all works created by anyone before 1976 but remaining
unpublished go into the public domain at the end of 2002 is correct, and
deserves to be more widely appreciated. But the implication that therefore
neither the Mark Twain Papers nor the "Trust" will any longer "have control
over the unpublished material or its royalties" and that therefore
"scholarship . . . will become much easier in 2002" is mistaken, on several
counts.

First, we should be clear that the recent 20 year extension has not changed
the 2002 deadline, which was part of the 1976 law, save only that the term
of copyright for something published by the end of 2002 now extends to 2047
instead of only to 2027 (that's a *total* term of 45 instead of only 25
years---still far less than a "normal" term). Second, everyone concerned
with access to Mark Twain texts and documents should recognize that the
2002 deadline *created* a very strong incentive to the copyright owner to
publish everything in some way---not necessarily in a very useful way, much
less in a way that everyone can afford to buy---before the end of 2002. It
did so because only by publishing in some fashion can the copyright owner
start the statutory copyright clock running, and thereby protect what he
rightly sees as his property, or at least as his property until it suddenly
becomes no one's property in 2047.

So everyone should also realize that virtually everything now unpublished
by Mark Twain will therefore *be* published before the end of 2001---not in
thoroughly edited, printed volumes that can be individually purchased for
less than the price of a good pair of shoes, but in essentially raw,
unedited form (probably a multi-reel microfilm) that only a few libraries
and fewer individuals will be able to afford or want to use. Publication in
this form may make it marginally "much easier" than it now is, say, to
borrow the microfilm of these papers from Berkeley---but it won't do away
with all need to ask permission to quote, reprint, or republish, or the
need to pay fees for commercial uses of the material. And it certainly
won't do away with the scholar's need for greater accuracy, contextual
information, and general intelligibility than such a microfilm will
provide. Indeed, all those needs are likely to increase under these brave
new circumstances. (I should add that *if* this all-inclusive form of
publication is *not* effected by the UCPress, it most certainly will be by
the Mark Twain Foundation itself, after the Press's contract with the
Foundation expires in January 2002.)

I can't help wondering whether these kinds of consequences were anticipated
by those who wrote the 1976 law---but they are nonetheless the real-world
consequences we have to live with.

Robert H. Hirst
General Editor, Mark Twain Project