Dissing incentives

This New York Times article about “Legal Battles over E-Book Rights to Older Books” caught my eye both because of a usage I dislike in its title and because of its importance in the continuing discussion of how much incentive copyright really provides for writers and other creators.  The article focuses on a dispute between the family of William Stryon and Random House, his publisher, over who has the right to profit from e-book sales of Styron’s work.

I have to say first that I dislike the reference to “e-book” rights because there is no distinct right to publish an e-book.  There are specific exclusive rights within copyright to publicly perform a work and to prepare a derivative work, both of which are important in allowing the creation and distribution of an e-book based on a published novel.  But “e-book rights” is a misnomer; at best a short-hand reference to a set of the enumerated rights in copyright that are involved in e-books.  In the contract dispute between Random House and Styron’s estate, the issue will be the scope of the assignment of these various exclusive rights, not the simple question of who got the “e-book” right since, as the family points out, e-books were unheard of when Styron published his novels and the profoundly moving “Darkness Visible.”

This brief item explains that the actual issue in this case is what “in book form” means in the publications contracts Styron agreed to.

The larger significance of this issue involves e-book versions of much of the great literature of the 20th century.  The length of copyright protection imposed on this cultural heritage is usually justified as providing an incentive for writers to write, artist to paint and filmmakers to “shoot.”  If, as Random House claims in the Styron case, however, the right to exploit new technologies as they develop is encompassed in the original publication contract, this incentive seems even more tenuous than it would ordinarily.  Even if we assume that Styron was more likely to write because he knew his children and grandchildren could continue to profit from his books than he would have been if copyright term was shorter, Random House’s claim that his original publication contract transferred the right to profit from new forms of distribution seems to reduce that putative incentive.  Presumably the family will have less control over the e-book created by Random House than one for which they contract directly (as they want to do), and it seems quite likely that they will profit less, if at all, from a version sold by Random House.

If copyright is really an author’s right, as publishing intermediaries like to claim when they want Congress to enact  stronger protections, should not the right to decide when and how to exploit new opportunities, not considered at the time of an original transfer, remain with the author or the author’s family?  In short,  publication contracts in copyright should be read narrowly to preserve the incentive for authors and others  to create which is the alleged purpose of the law.

This recent article by Professor Rebecca Tushnet about “Economics of Desire: Fair Use and Marketplace Assumptions” considers the incentive structure of copyright in some detail, based on the recognition that many creators create out of desire, or even compulsion, rather than a direct expectation of the money to be made for them or their heirs.  She argues persuasively that the economic incentives that the copyright monopoly creates “largely bypass[es] a persuasive account of creativity.”  Her conclusion that “Copyright law, and general cultural policy, could do more to direct material rewards to authors if we truly believe that monetary incentives will spur creativity” seems to directly address the Styron e-book dispute.  If we are serious about copyright incentives, she suggests, “we need to keep a close eye on which entities are benefiting material from all these new works.”  This is precisely the case with e-books and the literature of the 20th century; disputes like this raise real questions about how genuine our commitment to copyright as an incentive for creativity really is.