Technically Outside the Law: Who Permits, Who Profits, and Why

No one possesses the exclusive right to permit, withhold permission, or charge fees for permissions to quote from Emily Dickinson's texts. Newly available documents at Brown University's John Hay Library reveal the extra-legal basis of ownership claims on the writings of the Amherst poet.¹ These documents suggest the probable failure of any attempts at monopoly within Dickinson publication, including digital publishing. In the history of the division of the manuscripts, no individual or corporation has ever been able to assert exclusive rights. The present account outlines how those failures originate in a number of lapses, loopholes, and ambiguities around the question of who owns Emily Dickinson materials. The legal uncertainties involved in the copyright status of Dickinson texts have been and can continue to be a boon for prospective publication, paradoxically furnishing the "creative incentive" that copyright was originally designed to protect. The basis for asserting that no one owns exclusive rights in Emily Dickinson texts appears in the first professional study of ownership of Dickinson copyrights. That study was conducted by Philip Wittenberg following Millicent Todd Bingham's gift of Dickinson materials to Amherst College. His letter outlining the copyright situation, which may be consulted at the John Hay Library at Brown University, is an invaluable aid to understanding the problems surrounding the issues of intellectual property involved in Dickinson texts. His analysis has particularly important consequences for the ongoing publication of Dickinson materials, since he pointedly questions the concept of common-law copyright in perpetuity -- the very concept on which any exclusive claims to the works of a long-dead author are based. Such understandings provide the foundation for the contractually based arrangements that allow for conventional as well as electronic publication, that determine availability and access to Dickinson texts. Wittenberg's analysis is vital for those considering the prospect of making Dickinson available online. Studying the history of legal and business practices in the publishing industry and among owners and holders of Dickinson manuscripts should further indicate how copyright could be re-imagined in response to technological change.

Creating and maintaining an incentive to publish under changing technologies matters a great deal to those who perform or underwrite the labor of making Emily Dickinson's work available to the public. It is useful, here, to turn to the philosophical underpinnings of copyright with regard to incentive. On the one hand, copyright creates the prospect of monopolies as an incentive to creative people. On the other hand, copyright stipulates a time limit ("term") on that monopoly, in the name of the public good. In the original 1790 law establishing US copyright, that limit (or term) extended to the life of the author or 28 years, but Congress (under pressure from business interests) has progressively extended the term. Constitutional law professor Lawrence Lessig expresses the views of many current scholars of copyright in arguing for a return to the importance of incentive. Lessig and others would like to reverse the 200 year tendency to extend copyright's terms further and further past the death of the author and author's direct heirs: "one thing we know about dead people is that you can't 'incent' them" (Lessig qtd. in Leibowitz).

Incentive is likewise a primary concern of the National Research Council's report, "Digital Dilemma." This report, compiled by a broad coalition of scholars, lawyers, librarians and representatives of the technology industry, suggests turning away from the question of what is a copy. Instead, the NRC wants to see the idea of copyright as based in creative incentive, and to ask whether the use of a work harms the author's creative incentive (see "Digital Dilemma"). The "author," in this case, would surely not be the long-dead Emily Dickinson or her direct heirs, but those involved in creating new ways to access and deliver her texts. This would include coalitions of archivists and editors, at the very...