what I learned at MSA

The tenth conference of the Modernist Studies Association, one of the two professional groups I belong to and am at all active in, was held in Nashville this weekend. Most of the work presented was, of course, on modernist art and literature, and I heard a ton of great papers (and at least one mostly baffling keynote, by the luminary Fredric Jameson) on things like Surrealism, Gertrude Stein, Kantian ethics, Pynchon, etc. This is my favorite conference and although the panel I submitted was rejected I decided to go to attend one of the “seminars,” a small-group discussion wherein up to a dozen scholars of all levels submit very short papers on a specific topic and then get together to talk freely for about two hours.

As most of the seminars were already closed by the time I got around to deciding to go, I settled on the seminar on “Modernism and Copyright,” which sounds deathly boring at first—even to a literary scholar—but ended up being absolutely great. I read Paul Saint-Amour’s fantastic book on the history of copyright as well as less academic books such as Siva Vaidhyanathan’s COPYRIGHTS AND COPYWRONGS and Lawrence Lessig’s THE FUTURE OF IDEAS. The seminar discussion was great and I was by far the least prepared, as most of the other scholars there had advanced research projects on the subject and I am just starting to think of how issues of copyright might impinge upon my own current project, on the use of modernism as cultural propaganda in the Cold War.

More valuable, though, than the seminar itself was the way that it got me thinking about intellectual property in a number of ways and thus to go hear what people were saying about it. The last panel I went to featured two law professors—Steve Hetcher and Robert Spoo—who were conducting a “roundtable” discussion on copyright and intellectual property issues for scholars. Because of the now-famous James Joyce estate problems,

(basically, Stephen Joyce, who controls the estate, hates scholars and anyone who would “misuse” Joyce’s work and so refuses to grant permission to scholars to quote from unpublished Joyce materials, and is even reputedly destroying some material so that scholars will never be able to use it. Robert Spoo told of meeting Stephen in Zurich and asking him if he’d destroyed some letters between Lucia Joyce and Samuel Beckett, and although Stephen did not respond his wife mimed tearing up sheets of paper)

and Valerie Eliot’s well-known refusal to let scholars quote from unpublished T.S. Eliot materials, scholars are getting very cautious about using these materials—not just from Joyce or Eliot but from anyone. Publishers, too, both of books and journals are encouraging writers to minimize any use of materials for which they could be sued, and require authors to clear the permissions themselves. (I’ve had to do this.)

On the scholar level, Spoo and Hetcher simply said that scholars shouldn’t knuckle under. Fair use tends to be upheld, they said, and although publishers shy away from “cease and desist” letters and to pass that hesitance on to authors, it’s rare that these letters, when defied, become lawsuits. Spoo added that federal circuit courts have been increasingly willing to interpret free use expansively, and to really endorse one of the four “tests” for fair use—whether the original work that is being used/quoted is “transformed” substantially (in which case it’s fair use). Furthermore, Hetcher said that courts also like to consult the prevailing standards of the community, and so if the scholar community were to band together and simply assert that their use IS fair use (as long as that could be justified), courts would weigh that against a plaintiff’s claim of copyright infringement. The flip side of that, they both said, is that when scholars defer to the demands of publishers and copyright holders they establish a similar kind of precedent that lawyers and judges can point to.

The MLA has convened some sort of a task force on copyrights and permissions for scholars. Amen to that: it sounds as if they are trying to come up with something, like the Society for Cinema and Media Studies' policy on the use of film clips in teaching film studies, that will become a "community standard" or "typical practice." I'd like to see--hell, I probably should initiate--some sort of similar thing not for publishing but for teaching: how much can we use in class course readers? I don't think the Kinko's case is the last word on it.