Revisiting Scott Turow's Laudable Lament and Why There is Hope
Watching C-Span’s Book TV the weekend of July 5, I picked up their May 30 interview with Scott Turow, President of the Author’s Guild. While he was pitching his forthcoming book, Identical, Peter Slen led him to revisit his NY Times OP Ed piece, “The Slow Death of the American Author.” Peter Slen, by the way, in the tradition of C-Span’s Brian Lamb, has got to be one of the smartest and most resourceful TV interviewers in the book world.
I revisited what became a highly controversial piece when it was published on April 8 and realized that whatever its many faults in playing loosely with copyright and e-book facts, Turow was following the tradition of non-professional union leaders of the last century – advocating passionately in the marketplace (rather than simply politically) for his constituency in the face of a popular culture that increasingly celebrates authorship on the one hand and discounts its economic interests on the other, because it is so easy to do. (http://www.nytimes.com/2013/04/08/opinion/the-slow-death-of-the-american-author.html)
I also realized that promising options are at hand.
At the time, Turow was criticized by many in the industry as being a Luddite and out of step with the times, playing the victim, oversimplifying the cost basis for e-Books, misconstruing the discretionary nature of the Constitution’s copyright clause – and other loose assertions. (See Paid Content -http://paidcontent.org/2013/04/08/no-scott-turow-copyright-is-not-killing-american-authors/)
Kernels of truth though those criticisms might hold, as I reconsidered while watching the interview, and then went back to his article, I realized that his wider truth was being diminished – as often is the case when advocates raise the uncomfortable issue of money and provide vulnerabilities of argument that enable a change of subject.
Turow argues justly for author economic interests
As Turow noted, the Authors Guild exists, with 9,000 members, the vast majority of whom are not getting rich on writing, in order to enable the journeyman author to make a living at his or her craft. At bottom this is an issue of fairness and justice, which deserves to be enshrined in a legal system that observes equitable arrangements in free market commerce.
Of course, there is risk to the rewards of writing. By the nature of the medium of language, words and the ideas behind them cannot be imprisoned within the confines of a codex or digital file once seen (or heard) by a reader – they become part of our thought, and eventually of our culture. The writer’s genie is let out of its bottle and gains a life of its own in the minds and hearts of others.
Since Gutenberg, any scrivener could become a published author, and find a way to make a living by selling their work outright to printers who then became publishers, managing the commercial aspects of publication. It didn’t take too long for accomplished authors to realize they needed to take charge of their opportunities nonetheless – witness Ben Franklin, Charles Dickens, Mark Twain and Virginia Woolf.
However, the average author remained captive to his or her own entrepreneurial limits and the costs of bringing a printed book into the market. In this circumstance, an uneasy balance was struck between royalty-paid first sales and personal lending, free library circulation and what emerged as a used book market from which neither author nor publisher benefitted. Turow was writing in defense of that balance.
Our institutions work against author interests
Up through the digital era emerging in the 1970’s and beyond, other threats to author income such as piracy and copying were also limited by technology and geographic boundaries. The internet, real time, global reach and digital content have erased those limits and created a new reality.
Copyright, which began in 1790 with 14 years and a 14 year renewal was gradually extended in 1831 to 28 years and a 14 year renewal, and in 1902 to a 28 year renewal – or maximum of 56 years from registration. In 1976 the term was extended into life of the author plus 50 years and then in 1998 into life plus 70 years. As Patricia Aufderheide notes in “Reclaiming Fair Use” (2011, University of Chicago Press), “a book created by a 30 year old man with a normal life expectancy would still be protected in the year 2130, 119 years later.”
Copyright protection has now become a two edged sword. Not requiring registration, ownership is vested from the moment of the first scribble. Large corporate copyright holders who can afford policing these provisions, are now benefitting a few authors at the expense of the many, by constraining the ability of journeymen and aspiring creators to excerpt and cite from other works without going through daunting procedural barriers, at the risk otherwise of what could be draconian punitive penalties (the threat of up to $150,000 in statutory damages) and outsized processing and permissions costs.
So, Turow’s main point has traction with me, that our institutions work against the author’s interests: legal decisions such as the first sale doctrine applied by the Supreme Court to the recent Wiley case – albeit confirming what has been going on for over fifty years; regulatory interventions such as that of the Justice department upsetting a settlement supervised by the courts, and agreed to by the Authors Guild, major publishers and Google.
Turow also made a point that with Amazon’s patent for the resale of e-Books, non-drm protected works would need very few original sales in order to create an unlimited copyable inventory for the resale market. This forecast may seem a bit extreme, but I think it suggests is that Scott Turow’s lament is not without foundation. Unless the industry and the legal system is prepared to re-visit how creators can extract a legally and technologically enforced portion of the economic value of their intellectual output, very little economic value will remain after first publication.
Why there is hope: Mike Shatzkin’s “Anybody Press”
The notion of “intellectual property” can be defined in various ways – but at base it acknowledges the right of creators to be credited for their work – whether paid for or not – and penalizes its misappropriation by those falsely claiming an authorship for that which is not their own. This is an ethical/legal issue that to my mind is the underlying value proposition that justified authorizing Congress to grant copyright “to promote the Progress of Science and the useful arts” for a limited period of time.
Thus, over the long haul the author is constitutionally on notice that he or she needs to look to their own welfare as do all who engage in commerce.
So, here is where the marketplace and technology steps in as a counterweight to institutional control of intellectual property. It is why, also, getting institutions out of the way except for a minimal role of regulating traffic and settling disputes, is the best insurance that justice will come to literary markets.
I think It was best put to the test in an unrelated and extended discussion of the rising trend lines in e-book self publishing that Mike Shatzkin presented in his June 17 posting , “Anybody Press is the new member of the Big Six (for ebooks, at least).” (http://www.idealog.com/blog/anybody-press-is-the-new-member-of-the-big-six-for-ebooks-at-least/),
Noting that Bowker reported that “12% of the eBooks being bought now are self-published” and “the share of the consumer ebook dollar going to books that aren’t coming from publishing entities means that the new Big Six for eBooks are the ones we know well — Penguin Random House and the [other] four (HarperCollins, Hachette, Simon & Schuster, and Macmillan) — plus Anybody Press”
Shatzkin observes that “This is happening almost solely with individual authors and still mostly with authors who are not in demand by the commercial publishers” while “the self-publishing or Amazon-publishing route still requires pretty much giving up on bookstore or other retail distribution.” This is largely because retailers won’t accept Amazon published print editions and bookstores are not the best place for e-book discovery. Shatzkin develops several scenarios that even with short term loss of retail sales, on-line digital royalty benefit to “Anybody Press” authors will continue to effectively increase and exceed traditional channel royalties.
The new business model for authors.
I am reminded of when in the 1950’s the then already venerable typographer’s and printer’s unions did everything they could to resist the transition from hot metal to photo-composition (now digital composition) and from letterpress to offset lithography. Because of their tight control of the industry in major centers such as New England, New York and Pennsylvania, they effectively drove out business to the Midwest and South and hastened the demise of the printing business – and jobs - in the Northeast.
The situation with authors is of course different – for one thing they do not have the institutional leverage that the labor unions had -- but their challenge is analogous and their opportunity more promising. This is especially true of the journeymen authors Scott Turow eloquently speaks for (full disclosure – I am a member of the Authors Guild).
Self publishing in its many variations offers authors at last a way to control the financial benefits and licensing of their intellectual property in their publishing arrangements. In return, authors need to think of themselves and organize their affairs as part or full-time self employed business people as do artists and artisans in many other professions.
A whole new industry of operating and content service providers and sales and marketing agencies are emerging to provide for them the expertise and skills they need on a performance basis, thus reducing risk and making it profitable to take charge of their book marketing and sales management. This doesn’t mean that commercial publishers will fade from the scene. But they will not become the essential first stop for an author to enter the market, build his or her following and control the return on their most valuable asset – their intellectual property.
Scott Turow may have painted the author’s situation with a broad brush, but he got the colors right. What are now needed are initiatives by the Authors Guild, and support from other trade organizations and major service providers, to reduce institutional interference and to develop a new business design for journeymen (and journeywomen) authors. A design that deals with the new realities of the market place.
Easy to say – but not impossible to do, especially as the business model is happening anyway, and we have elections every two years that can deal with the interference -- and lots of industry lobbyists that can do the needed buttonholing.