February 6, 2016

A Circuitous Journey with Black Elk and Ezra Pound | Peer to Peer Review

kevin-l-smith-newswireBlack Elk Speaks is a book many of us read during our student days; for me, it was actually assigned in a class on the Hebrew Bible, as another example of the transmission and reinterpretation of oral traditions. As this article from Inside Higher Ed describes, the book itself has been on a rather circuitous journey over the 80-some years since it was first published in 1932. If we are also willing to follow some twisting paths, we can learn something from the publishing history of Black Elk Speaks by looking at the problems it raises and the solutions it suggests.

The remarkable thing about Black Elk Speaks is that it has been published by three different publishers in the United States. The first edition, in 1932, when both Black Elk and John Neihardt (the man who wrote down and published the Lakota chief’s story) were still alive, came from William Morrow. After Neihardt died in 1973 (23 years after Black Elk), the copyright in the book passed to his family, who created a trust to administer it; that trust entered an agreement with the University of Nebraska Press, which published the book until 2008. That year, the director of the Nebraska press left to go to the SUNY Press, and he took Black Elk Speaks with him, which is very rare in publishing. Now, after five years with SUNY, during which time that director departed, Black Elk is “going home” to Nebraska.

The rarity that this movement creates is the availability of different editions of the book from different publishers. That is, there is a semblance of competition in the publishing of Black Elk Speaks. I say “semblance” because only one publisher holds the copyright monopoly at any one time. Nevertheless, it is currently possible to buy a copy of the book that was published by each of these three publishers. In fact, a fourth version is also available, on a website run by First People of America and Canada. Since Black Elk Speaks does seem still to be protected by copyright, my speculative explanation of this online version is that either there is a special agreement with the Neihardt Trust or else the First People do not recognize the U.S. copyright. So for a variety of reasons, Black Elk Speaks is an unusual instance of competition in book publishing.

Normally book publishers do not compete in this way. The copyright monopoly means that only one publisher can publish a book at any one time. And most often, when that publisher is no longer interested in publishing a book, that title simply becomes unavailable. So it is quite unusual to have multiple editions of Black Elk Speaks available, offering consumers a rare opportunity to compare editions and select the one that best suits their particular needs.

This anomaly brings into relief the normal effects of the copyright monopoly. Like all monopolies, its purpose is to limit availability in order to force prices up. For consumers, the result is higher prices and limited choices among products (only one edition, or successive editions from the same producer). For book titles, the usual result is that most works become unavailable to consumers rather quickly. Black Elk Speaks is an anomaly for very specific and distinctive reasons, but it offers an opportunity to reflect on what alternatives to the strict publishing monopoly might look like.

In his recent book Without Copyrights (Oxford Univ., 2013), law professor Robert Spoo, who describes the effects of America’s protectionist copyright laws in the early 20th century on Modernist literature, makes a couple of points that seem relevant to this discussion.

First, in describing the “trade courtesy” that existed in the days before the United States recognizes copyright in works that were first published or printed abroad, Spoo makes us aware that the publishing industry has always resisted competition; even before a monopoly in books of foreign origin was imposed by the state, publishers acted, in a way that would probably now be considered a violation of the antitrust laws, to suppress competition. Even though other publishers were legally entitled to produce different editions of these foreign books, the threat of reprisals from other publishing houses restrained them. So the situation with Black Elk Speaks is especially unusual and especially troubling to those in the publishing business, because that business has relied upon, and profited from, a monopoly even when the law did not create that situation.

The other relevant portion of Spoo’s book to this discussion, to my mind, is his analysis of the copyright proposals of Ezra Pound. Pound was both fascinated and repulsed by copyright laws. He deplored the U.S. failure to recognize what he saw as his rights because of our protectionist law at the time, but he also recognized that copyright could be abused, especially when it served to suppress unpopular or unprofitable voices. Thus, although he did advocate perpetual copyright protection—a position occasionally cited by copyright “maximalists” —he also suggested a complex series of rules that would relax restrictions whenever a book went out of print, so that others could pick up the work and republish it. In short, Pound advocated strong protection as long as a work was available but also a series of compulsory licenses that would ensure, in so far as possible, that copyright did not become a mechanism by which works could become lost to future generations. Unfortunately, with rare exceptions like Black Elk Speaks, that is exactly what we have allowed to happen today.

In general in the United States, we believe that competition is a good thing. The point of the copyright monopoly was originally to provide enough exclusivity so that authors and publishers could recoup their costs to produce a work in the first place, including enough profit to incentivize the next act of creation. But after that, there is no reason that competing editions could not be allowed. This would give consumers choice over which edition included features that best suited their needs or tastes; in the case of Black Elk Speaks, each subsequent edition has had elaborate commentary and other features, illustrating the value of even rudimentary competition. And competing editions would help ensure that fewer works simply became lost, abandoned by the rights-holder with no legal way for others to pick up and reprint them—the situation Pound wanted desperately to avoid.

A few years ago, the Harvard University Library Lab offered an experimental license that was designed to address exactly the problem of the copyright-enabled suppression of books owing to lack of competition. The Library License is a suggested addendum to a publishing contract that could be used by authors who, like Ezra Pound, want to be sure that their works remain available to future readers. It provides that, after five years, if a work ceases to be profitable to a publisher (defined as selling fewer than five copies in each of three consecutive months), a license would spring up for libraries to make and disseminate, in a limited way, a digital copy of that work. The goal, of course, is to rescue works from obscurity and take a partial step to addressing the orphan works problem, which is now much worse than Pound could ever have imagined.

What the Harvard Library License suggests—regardless of its potential practical impact—is that copyright does not have to be an “all or nothing” proposition. Even though international treaties do not allow formalities to be imposed on copyright, compulsory licenses and even so-called “liability rules” (like the orphan works legislation that was proposed in Congress in 2008) could be put in place, as Pound envisioned, that would allow users, including libraries, to exploit works after they were no longer generating a profit for the rights holders. Copyright could be a sliding scale of protection. The more available a work was, the more firmly the copyright monopoly would stay in place. But once the incentive provided by that monopoly had stalled, as evidenced by a lack of availability, then others would be free to “publish on” the original work.

Black Elk Speaks has done fine from the copyright monopoly; it has been continuously available for over eight decades and has generated substantial profits for its rights holders and publishers (but how much, one wonders, for Black Elk’s Lakota kin?). Ezra Pound’s work has likewise remained available, although it was not as profitable as he wished in his lifetime because of the inequities of copyright law. But thousands of works are not so lucky. The all-or-nothing nature of copyright has forced the large majority of our cultural heritage from the early part of the last century out of sight. The first step toward changing this situation is simply recognizing that it does not have to be this way.

This article was featured in Library Journal's Academic Newswire enewsletter. Subscribe today to have more articles like this delivered to your inbox for free.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s (kevin.l.smith@duke.edu) principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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  1. Joel Neuberg says:

    Dear Kevin L. Smith,
    Thanks for a very interesting and informative article. I suggest Pound’s work “was not as profitable as he wished in his lifetime” not only “because of the inequities of copyright law” but because he had the poor judgement, if he sought profitability, to focus on poetry, literary criticism, and seriously questionable radio work.
    Best regards,
    Joel Neuberg