Administrative Law

Watergate, Historians, and Intellectual Property

By Peter

I have been enjoying following the historical cat-fight that first appeared on the front page of Sunday's NY Times and which has spilled over into blog entries and comments (summarized nicely by HNN - the reaction to Stan Katz's posting is particularly brutal).  The controversy concerns whether historian Stanley Kutler intentionally made mistakes in transcribing Nixon White House tapes in order to downplay the role that John Dean played in Watergate. 

I have no idea who is right on the historical questions, but I have been fascinated by some of the copyright questions that are just below the surface.  Two in particular stand out:

1.  The Times reported that the controversy had arose at this time "because an article detailing the charges against Mr. Kutler has been submitted to the American Historical Review, the profession?s premier journal."  According to the article, Peter Klingman, the author of the article, would not comment "because of pre-publication rules." 

Some have speculated that the AHR - in apparent violation of its policy - might have been the source of information for the article, a charge that has been persuasively dismissed by Rick Shenkman in an article for HNN.  I was more shocked by the reported policy itself.  Does the AHR really subscribe to the controversial Ingelfinger Rule that prohibits pre-publication distribution or even discussion of medical topics?  What about the idea that scholarship is improved when drafts of papers can be shared with colleagues and presented at conferences prior to submission for publication?  Why isn't the unrefereed manuscript available through an institutional repository or preprint server?

In looking at the matter more closely, it appears that (surprise!) the NY Times may have gotten it wrong.  The AHR's submission policy states "No manuscript will be considered for publication if it is concurrently under consideration by another journal or press or if it has been published or is soon to be published elsewhere."  There is no mention of whether the AHR considers posting the unrefereed manuscript to a server to constitute "publication" (as does the Lancet and a few other medical journals), but the context of the statement would seem to suggest that it is formal publication that is at issue. 

So let's hope that Klingman is just hiding behind a non-existent AHR policy to keep from having to speak to the press.  Historians have long recognized the advantages of sharing hard copies of their work with colleagues prior to submission, and services such as ArXiv have proven how important electronic distribution of pre-refereed copies can be.   This is no time to adopt the kind of practices that have plagued medical publishing. 

2.  The other issue appears in Shenkman's article, "The Watergate Transcript Controversy: The Story Behind the Story."  Shenkman reports that Kutler declined to give an unnamed antagonistic researcher permission to quote from the transcripts published in Kutler's book, Abuse of Power. Kutler is quoted from an email to HNN: "Not very fraternally of me, I will admit... but why did he think he had license to incorrectly malign me, and then expect me to [do] him a favor?"

Jeremy Young at the Progessive Historian's blog has the proper reaction when he asks "Why did Kutler have the right to refuse access to his published transcripts."  Young speculates that the quotes might be longer than would be allowed under fair use.

I wonder what copyright interest Kutler might think he has in the transcripts.  The preparation of a transcript would appear to be the kind of classic "sweat of the brow" work that Feist concluded was not eligible for copyright protection.  It might be hard work understanding what is happening on the tapes, and it may require great skill to prepare the transcript, but it would still lack the creativity needed to secure a copyright - unless, as Kutler's critics maintain, he was making it up.

I often rail against archives and libraries that assert rights where none exist.  It is no less troublesome to see historians doing the same.

Full post as published by LibraryLaw Blog on February 06, 2009 (boomark / email).