Casualties of Copyright Policy
Seattle Pacific University
About South African Literature:
A Case Study in the Trials and Tribulations of Scholarly Research
Do not cite
without permission of the author.
In the late fall of 2002, my book Truth and Reconciliation: The Confessional Mode in South African Literature was published by Heinemann Press, one of the leading academic publishers of African studies. I had signed a contract with Heinemann on October 13, 2000, and sent them a completed manuscript on March 12, 2001. However, my book was not sent to the printer until March 19, 2002-one year later. Although copyediting took some time, most of this delay can be attributed to the difficulties I experienced in obtaining the permissions that my publisher demanded. After an avalanche of emails, phone calls, faxes, and letters; a mounting tide of legal demands; and a tsunami of aggravations- to stretch the meteorological metaphors-I resorted to severely editing the manuscript so that it could finally be published. It was a frustrating, nitpicking, and ultimately costly process. Although I readily admit that I made several mistakes in the process, the current copyright law and the unnecessarily stringent requirements of a publisher anxious to avoid lawsuits contributed much to this mess. In my experience, "fair use" policy is not very fair to a scholar.
Truth and Reconciliation traces a particular mode of literature, which I call "the confessional," in South African writing from the apartheid period through the 1990s. After a theoretical discussion and an overview of historical, theological, and judicial practices of South African confession, I conduct close textual analyses of ten South African writers who have written confessional texts. As a Bakhtinian critic, I am committed to allowing the multiple voices of a text and author to speak along with my own assessment and analysis. Furthermore, evidence of "confessional" aspects often is revealed through diction and rhetoric. Hence, I quote a lot.
Although my book is part of the Heinemann Studies in African Literature series, its production was supervised by a team from Greenwood Press, which had recently purchased Heinemann. With my initial contract, I was sent Greenwood's "General Guide for Authors," which included information about copyright and permissions. My initial mistake lay in not studying this document in greater detail, for it clearly states, "All permissions must be cleared before the manuscript can be accepted and scheduled for publication. If for any reason permission is withheld, you must either paraphrase the quoted material or delete it from your manuscript" (their emphasis). Greenwood's interpretation of "fair use" policy and procedures for obtaining permissions were then detailed. I needed to send Greenwood the permissions that I received in writing, along with a copy of the original request and a detailed list of the manuscript pages on which each quote appeared. I was to obtain permissions to cover all editions in all languages, from all copyright holders. Quoting more than one line of poetry and over 300 words of prose violated "fair use" and so required permission. The Guide also stated that if you quoted more than 10 percent of the original source, you should request permission. But 300 words of a typical book are far less than 10 percent of its content, which seemed inconsistent.
I've published four other academic books, each with a different publisher, each of whom has had a slightly different interpretation of "fair use." The amount quoted that necessitates obtaining permission differs (ranging from 250-500 words in prose; from one to ten lines of poety, in my experience), the definition of making a reasonable attempt to find the permission holder differs, the way of counting the words differs. There are no clear rules, only interpretations-which often appear to be guided by publishers' fears of legal action.
Recognizing Greenwood's stringent definition of "fair use" with respect to poetry, I submitted the manuscript in March with a note that I was in the process of getting permission to quote the lines that I cited from Dennis Brutus's confessional poems about life on Robben Island, collected in Letters to Martha. I also pointed out in this initial letter that several of my discussions of prose writers included over 300 quoted words, but never in one block, as I often cited individual words, phrases, or sentences. I am interpreting this as "fair use," I stated, asking that if Greenwood disagreed with my interpretation that they inform me so I could begin to request additional permissions.
Ironically, Brutus's Letters to Martha had been published by my own publisher, Heinemann, but when I contacted the permissions editor, I was told that the press did not own the copyright; Brutus had maintained it. The first letter that I sent to the University of Pittsburgh's English department, where Brutus was teaching, was returned; several phone calls later I had a second Pittsburgh address for Brutus and another request in the mail. Within a month, I received a copy of my letter back with a note from Professor Brutus scribbled across the bottom: "Permission granted. All good wishes. Will write shortly. Dennis Brutus. April 3, 2001." He also enclosed two new poems, which was a nice touch, I thought, and didn't charge me a cent. (For an earlier scholarly book I had written on J.M. Coetzee, I had to pay Adrienne Rich $50.00 to quote fifteen lines.) Although I never heard from Brutus again, Greenwood accepted the handwritten note as an official permission, and I was well on my way. Or so I thought.
At the end of July, four months after I submitted the manuscript, Kay (a pseudonym), an editorial assistant at Greenwood, contacted me to correct my mistake regarding prose citations. I had failed to read the Author's Guide carefully, for it stated that if I quoted more than 300 words "either in one place or scattered throughout the manuscript," I would need formal copyright permission. Kay listed twelve additional authors from whom I would need to obtain permissions or else cut my quotations of their prose to 300 words. On August 5, she wrote again, stating that she could not send my computer disks to production until the permission problems had been cleared up. A day later, she relented, saying that at least half of the passages would need to be cleared before production would begin.
I was on vacation during the first two weeks of August, but upon my return, I immediately began re-envisioning the book. For reasons I will explain below, I quickly decided to edit quotations from three authors, but by August 20, I had sent out requests for permission to quote the ten remaining authors. Thank heavens for the internet, I thought, as I located the addresses of various permissions departments on-line, and sent my requests via email. Kay had given me a new deadline of September 15, so I requested a response by that time and included all the information that Greenwood had prescribed: copies of the exact passages I was quoting as they appeared in my manuscript, and a request for permission for both hardcover and paperback editions, and for all languages throughout the world. If a publisher held only the U.S. and British rights, I asked for information about the holder of world rights.
I decided to cut the quotes from three authors for strategic reasons. I used Foucault fairly extensively throughout my first two theoretical chapters, since I was arguing against his interpretation of the power dynamic of confession, but I immediately decided to omit most of the direct quotations and merely paraphrase his position. I just couldn't face sorting through the various English and French permissions that would be necessary. Besides, I reasoned, quoting the exact wording of his theoretical position was much less crucial than the later textual analysis. Quotations from Rian Malan's memoir My Traitor's Heart were cut for a different reason. I knew that living authors often either held their own copyright, as in Brutus's case, or else instructed their publisher not to issue permission to quote until the author had reviewed the request personally. Adrienne Rich, for example, had wanted to see the exact context in which I was quoting her before she would grant my request. J.M. Coetzee, fortunately, had not been as demanding. Living authors thus can essentially censor or at least mute those scholars who are critical of them. Given this fact, I was especially worried about my discussion of Malan, which criticizes his bad faith and self-righteous justification, as well as uncovers his racist rhetoric and subtexts. Malan wasn't going to like what I had to say, I was sure, so I didn't even try to get permission to cite him. Instead I converted most of my quotations to paraphrases and summaries. This did not silence my criticism, but it did dull it by making me unable to allow Malan to damn himself with his own words. And since a great deal of my point had to do with the language that he chose, this weakened my argument.
I also decided to edit my use of material from Ruth First's 117 Days, an autobiographical account of First's detention by the South African apartheid government in 1963. The book had been first published in 1965 by Stein and Day, but, following the success of the film A World Apart (a fictionalized account of First's life), 117 Days had been re-issued with a new copyright in 1989 by Monthly Review Press. I thought that I could quite easily cut down my use of quotations from First's text without substantially affecting my analysis, and I didn't know where to begin in tracking down the copyright holder. Since quotations were more crucial for several other parts of my book, I decided to concentrate my efforts elsewhere.
Each cut required extensive documentation. I couldn't merely revise the manuscript on the computer and submit a new version. Instead, I had to send Kay a copy of the original pages on which the quotes appeared, with the cuts indicated, along with any new transitions, summaries, paraphrases, etc. Every word that was omitted had to be acknowledged, along with the changes that were consequently made. Needless to say, this all took some time and much manual word counting, especially of the specific individual words and phrases from Malan. Even so, after my first attempt Kay informed me that I still quoted 355 of Malan's words, so I had to give that chapter a second go.
Nonetheless, by September 7, I thought I was in good shape. The permissions for two American theorists-Harvard's Elaine Scarry and Yale's Miroslav Volf-had been relatively easy to obtain: their publishers replied promptly to my email requests. Scarry's publishers didn't charge for the permission, and Volf's asked me for a mere $25.00. (Since I was responsible for paying these fees, I was relieved that they asked for so little.) I sent Greenwood copies of the documents granting these permissions, along with my revisions of the Foucault, First, and Malan material.
I was now waiting to hear from the publishers of Breyten Breytenbach, Simon Farisani, Noni Jabavu, Antjie Krog, Nelson Mandela, Emma Mashinini, and Ezekiel Mphahlele. These seven South African writers included some with international reputations, such as Mandela and Breytenbach, and others that were virtually unknown, such as Mashinini and Farisani. Their books had been published in South Africa, Great Britain, and United States, complicating the need for world rights. Several had appeared in different editions, and, with one exception, each had been published by a different publisher. Each request that I sent in August necessitated a detailed letter (and pages of citations) based upon Greenwood's instructions, but most publishers then sent me their own form-each with a different format and requiring different information. To complete these forms, I had to repeatedly go back to Greenwood to find out additional details about publication.
On September 18 I heard from Random House, whom I had contacted for permission to use material from The Country of my Skull, a moving account of covering the Truth and Reconciliation hearings for the South African BBC by Antjie Krog. Random House issued me a contract charging $200 for using "specified excerpts totaling approx. 2 pages" (from a 365 page book). If Krog's fee was $200, I wondered, how much would Nelson Mandela charge? Since I was worried about my ability to pay the mounting permission costs, Kay suggested that I talk with Jim Lance, the Heinemann African Studies acquisition editor. Jim agreed to take my request for a permissions subsidy to Heinemann's editorial director, and I also began exploring whether I could draw on my university professional development funds to pay some of the costs. I sent a copy of the Krog contract to Kay and continued waiting.
As October and November went by, the costs continued to mount and additional problems surfaced. Initially I was worried about locating the copyright holder of Emma Mashinini's Strikes Have Followed Me All of My Life, the autobiography of a black South African woman who had been imprisoned and tortured in the 1980s because of her trade union activities. Her book had originally been published in 1989 by The Women's Press, in London, but I was using a 1991 edition published by Rutledge in the US and Canada. However, Rutledge's eventual response to my August query explained that Taylor & Francis, New York, controlled the rights. I simply needed to fill out the permissions form available on the Taylor & Francis website. I did, but the form was returned since I did not indicate a print run. I need to know an estimated press run, I informed Kay. "Tell them that the initial run will be 500, but ask permission for a 5,000 minimum," she advised. I did, and a contract arrived at the beginning of October with a hefty $250 fee. When I wailed to Jim Lance again, he suggested that I contact Taylor & Francis and ask them to reconsider. I wrote, "My book is an academic, literary study that will have a fairly small circulation among literary scholars. It is neither a trade book nor a textbook. I analyze about 10 different South African works in depth, and if each publisher were to charge $250, it would make academic literary criticism virtually impossible." This appeal brought the fee down to $150. I changed the amount in the contract and sent a copy to Kay.
Other requests were resulting in even longer delays. One section of my book discussed The True Confessions of an Albino Terrorist (1984), by Breyten Breytenbach, a world-renown Afrikaner poet and novelist who had lived in exile in France for years. Breytenbach's memoir about serving a seven-year term in a South African prison was originally published by the British firm of Faber and Faber. After sending out my first request in August, I waited for four months and sent a second letter before being informed that Faber and Faber had forwarded my request to Breytenbach. He retained personal approval over all permissions. By the beginning of December, he had not yet responded.
Faber and Faber also held the copyright for Es'kia Mphahlele's Down Second Avenue, an early autobiographical account (1959) by a black South African about life under apartheid. In October they faxed me their permission agreement, which I was to complete and return before they would issue me a license. Although I returned it promptly, I didn't hear from Faber and Faber again until I emailed a follow-up request in December. "I thought you had already been sent a license for this permission, and I am sorry for the delay and confusion," read the response, which requested a 50 pound fee and enclosed a contract, a copy of which I dutifully sent to Kay. She immediately informed me that the contract only granted British Commonwealth rights. "I know you requested world rights," she wrote, "but they must have made a mistake. Email them back and refer to your original request of August 20, that they grant world rights. Tell them it's urgent and give them a deadline of one week. Sorry this has been such a hassle for you." Faber and Faber replied that the rights outside the British Commonwealth were controlled by the author, but at least their letter supplied an address for Mphahlele, who, after twenty-seven years in exile, had returned to South Africa in 1977 to teach. But it was now December, and South African universities were on an extended Christmas (and summer) vacation, so I doubted whether I would get a response until the middle of January, at the earliest. Nonetheless, Kay advised that I should try to contact Mphahlele. If you don't hear from him in a few weeks, she said, you can edit your citations of his work. A web search did not turn up an email or fax address, so I airmailed a letter to Johannesburg.
Kay's vigilant reading of the Faber and Faber contract led me to examine more carefully the other contracts I had received, and I discovered that although the Random House permissions agreement for Krog's Country of my Skull covered the U.S., Canada, the Open Market, and the E.E.C., I was to contact Random House South Africa for the territories of PI and UK. (I still don't know what PI means; UK I could figure out.) When I asked Kay about this, she replied, "For some reason, I don't have the Krog perm although I have a notation in my file that it was received-and cost $200! Will check with [ ] to see if she has a copy so I can look at it. If it says to contact Random House S.A. then you should do so or they would not have mentioned it." I found a fax number for Random House SA on the Random House website, and sent them a permissions request in December, noting that I had already paid $200 to cite Krog, that my book was an academic analysis, and that I hoped that their fee not be too steep.
The difficulties in locating reliable addresses and contacts for a major South African publishing firm were magnified ten-fold in my attempts to find Tshenuwani Simon Farisani, a Vendan Lutheran pastor who had been imprisoned and tortured during apartheid. Farisani was not a well-known public figure. His Diary from a South African Prison had been published in 1987 by an American religious publisher, Fortress Press, which I discovered had become part of Augsburg Fortress Publishers. My initial query to this publisher made in August was answered with a note that Dr. Farisani maintained his own copyright and that I should contact him directly at Pacific Lutheran Theological Seminary (PLTS) in Berkeley. My first letter there was not answered; the second, sent several months later, came back with a note on the envelope: "Return to sender, not at this address, unable to forward to South Africa." From PLTS's website, I randomly chose a professor to contact, explaining that I was trying to locate Dr. Farisani and asking if she had an address, a fax number, or email address for him. Dr. Carol Jacobson kindly replied, "It has been a number of years since Dr. Farisani was a student here-yet many of us have our 'contacts.' I'll do a little checking with some of my colleagues." In the meantime, I spoke with Kay again, explaining the difficulties. "I have two letters you sent him," she replied in November, "but if you have the cancelled envelopes showing they were returned, that would help." I can only assume that she planned to use these envelopes to demonstrate a "reasonable attempt." I never received a response to the first letter, I told her; the second had been returned. "Whatever you can provide, after you hear from the California seminary will be good," she indicated.
Noni Jabavu posed equally challenging problems. She was a remarkable writer-one of the first black South African women to publish for an international audience, but a controversial figure who had largely been ignored by the critics. A well-educated, middle-class South African, Jabavu was sent to England for schooling in 1933, married an Englishman, and did not return to South Africa until 1955, after the formal establishment of apartheid. Her memoir, The Ochre People (1964), was published in England and describes a visit to South Africa that probably took place in 1956. Jabavu lived in exile for twenty years but wanted to return permanently to South Africa in the seventies; however, since she held a British passport, the South African authorities labeled her an alien, and she was not permitted to stay more than three months. She eventually settled in Zimbabwe, and in 1982 The Ochre People was published for the first time in South Africa by Ravan Press, an anti-apartheid publisher with close ties to several oppositional groups. Jabavu wrote a new introduction for this edition in which she addresses a new generation of South Africans, expressing her sorrow that she missed knowing them and her admiration for their anti-apartheid activities.
The Ravan edition of Jabavu's text, which I purchased in South Africa in 1995, indicated that the copyright had been re-issued to Jabavu in 1982. However, I had no idea if or where she was living. The usual procedure is to try to contact an author through her publisher, but an extensive web search did not turn up any information about Ravan. This was in August, as the outset of my permissions quest. I decided to email the head of African Literature at the University of the Witwatersrand for information. Dr. James Ogude promptly replied that he could not find an email address for Ravan, had "heard rumours that they may have folded up," but that he had found a street address and fax number, which he kindly sent me. I immediately sent both an airmail letter and a fax, but the fax number was no longer operational, and I received no reply to my letter. In September I discovered that Ohio University Press was distributing some of Ravan's publications in the US, so I contacted them; a month later they told me that Macmillan Press, in Great Britain, had taken over Ravan. By the end of October, I finally heard from a permissions editor at Macmillan only to learn that in 1996 Jabavu had instructed Ravan not to grant any permissions on The Ochre People. The Macmillan staff did not know whether she was still alive or not, but they would look into it..
Nelson Mandela's international best-seller, Long Walk to Freedom, wouldn't pose such difficulties, I was confident. Little, Brown had responded to my initial request with a standardized form, which I returned by fax before the end of September. They then issued me a contract, which I needed to sign and return with a $180 fee before they would counter-sign and send back the completed contract. I had requested this amount from my university professional development fund, but it was taking some time to process, and Kay was pressuring me to present a signed contract, so I sent off a personal check.
If you've followed my somewhat convoluted chronology, you may have noticed a confluence of events at the beginning of December that, coupled with the papers and exams that accompany the final weeks of an academic term, almost drove me to a breaking point. No one at Macmillan had been able to track down Jabavu, I had not heard anything from Breytenbach, and I was still trying to find a South African address for Farisani. Both the Mphahlele and Krog contracts were missing world rights, and the counter-signed Mandela contract had not yet arrived. Kay had established a new deadline of December 17 by which I was to have at least half of the permissions cleared. It was at this point that I cut large sections of material from Breytenbach, Jabavu, and Farisani in order to bring my citations for each below 300 words. Especially difficult to excise were 200 heart-breaking words conveying Farisani's physical pain and spiritual agony, marked in red ink on the original pages and obediently sent to Kay. "This is driving me crazy!" I emailed Kay on December 17.
January and February of 2002 elapsed with little activity on the permissions front. Despite my additional cuts, the outstanding permissions were still delaying production. No responses turned up to the letters I had sent to South Africa regarding Mphahlele and Krog. At the beginning of March, I sent a second letter to Mphahlele in care of the University of Witwaterswand. This one was returned, with one word written across the address, "LEFT." Kay finally relented at this point, since I did have the British Commonwealth permission and had been trying to locate Mphahlele since August; his words were allowed to remain. This was the one instance in which it was deemed that I had made "every reasonable effort . . . to trace the owners of the copyright materials," as the disclaimer that eventually appeared on the copyright page of my book stated.
In March I tried faxing Random House SA again about the Krog quotations, but the fax number listed on the webpage was now out of service. Consequently, I sent Stephen Johnson, the Managing Editor of the permission department, an urgent email request. His assistant replied: Mr. Johnson, the only person at Random House who could deal with such a request, was currently overseas. She doubted whether he had received my first request, but gave me his personal email address. Finally, on March 18, I heard from Stephen, who gave the necessary permission and-incredibly-didn't charge me a penny. (I had not repeated my original plea for economic mercy in the subsequent communications, so I wonder if he had indeed received my first request.)
On March 18, I wrote Jim Lance, "The permissions requests for [my book] are almost all in, with the exception of one South African writer who has not responded [Mphahlele]. We're going to go with a disclaimer, and the book has finally been sent to the printer. I do need to send off the permission check soon. Did you hear anything back about Heinemann helping out with these? I paid one invoice of $180; I have others totaling $448 yet to be paid." To help with these costs, Heinemann sent me $500 that would be deducted from future royalties. In addition, many of the publishers required that I send them one or two copies of my published book. Once again I was responsible for paying for these books and their shipping costs, which totaled $249.03 even with my authorial discount and were charged against my royalties. My most recent semi-annual royalty report from Greenwood, issued on June 28, 2003, showed a negative balance of $184.66. But then one doesn't write an academic book for the income.
My story demonstrates the difficulties that are created when one writes about texts written by living authors, who may object to a negative critique of their work, as well as the trouble created by writing about African authors, who may be difficult to locate. Attempting to track down and receive the permissions that my publishers deemed necessary delayed the publication of my book, I estimate, by nine months to a year. My inability to locate two African authors who held their own copyrights necessitated severely revising several chapters of the manuscript. Another section was modified when I realized that my sharply critical assessment would not be received well by the author who held the copyright. A third fell to the red pen when the author failed to respond to my request sent through his publisher.
Another problem concerns the financial burden of paying hundreds of dollars of permission fees for an academic publication. Even with considerable editing to avoid having to obtain permissions, I had to pay over $875 in fees and expenses in order to publish my book. Fortunately, Heinemann was willing to advance me the fees, but it is taking some time to recoup that advance, given the meager return that an academic author receives from her work. My story suggests several revisions in copyright law and/or interpretation that would be necessary in order to facilitate scholarship on contemporary writing that is not constrained by geographical contingencies, critical sensitivity, and financial pressure.