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Evolution of Copyright Law from Guild and Printing Monopolies to Human and Natural Rights – Mark Seeley

Texaco decision anniversary and licensing (& the history of copyright evolution from guilds to human rights)
January 2021 Twenty-five (close to 26) years ago, the publisher plaintiffs in the Texaco case (https://openjurist.org/60/f3d/913) settled with Texaco over unauthorized copying of science journal articles for commercial purposes. The case was led by the American Geophysical Union, the earth and space science society and publisher of a number of leading journals, supported by an extensive list of other scholarly publishers and the CCC (Copyright Clearance Center, where I am a Board member). The decision and settlement were important events in establishing that businesses cannot assume a “fair use” defense, even if they are engaged in some form of research, and led to the establishment and success of the CCC in offering licensing options for corporations (CCC has other licensing and service options as well).

The CCC asked a number of copyright experts and advocates to write essays on the broader issues and implications as part of the 25th anniversary commemoration, and I was happy to contribute an essay for the CCC ebook along with my colleagues Lois Wasoff (former GC at Houghton Mifflin and consultant for a number of organizations including CrossRef) and Bruce Rich (former partner at Weil Gotschal, where he began representing the CCC in 1980). You can find the ebook and an introduction here http://www.copyright.com/blog/creating-solutions-together-lessons-to-inform-the-future-of-collective-licensing/.

Lois’s essay looks at the connection of publishing and licensing, describing the stream of rights behind publishing and readers (including online readers), while Bruce looked at the history of the formation of the CCC and the link to the 1976 Copyright Act, and the importance of the Texaco decision in supporting publisher licensing activities. As a history buff, I was happy to contribute an essay on the history of collective licensing, which I argue is inextricably connected to the evolution of copyright law as an individual or natural/human right. I started with the 16th-century Statute of Anne, which identified authors themselves as the primary rightsholder of their own works, a change from printing monopoly and guild controls from church or government authorities. I note that “[r]ights, however, are but empty promises unless they can be exercised…” to explain how collective licensing provides an effective market framework for individual authors and other creators. I also discussed the CONTU debates in the US (1970’s but with early discussions starting more than a decade before) about technology, use, and licensing, noting that licensing solutions can achieve broad solutions for the society which ensures that users do not become infringers. Licensing organizations like the CCC operate much in the background, connecting individual rightsholders with individual readers/users. There are strong similarities with licensing rights behind music and other entertainment streaming services. You can find my essay here.
Mark Seeley

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Copyright and innovation in the life sciences (Publishers, licensing & innovation)

The US Patent & Trademark Office and the Department of Justice put together a program on “Promoting Innovation in the Life Science Sector and Supporting Pro-Competitive Collaboration: the Role of Intellectual Property” with many speakers from government, business, law firms, university and public interest organizations, and several judges on 23-24 September 2020. Patents and patent cooperation and collaboration was a key part of day 1, although we did have a late afternoon session on “Copyright and Innovation in the Life Sciences”. I was pleased to participate with Bhamati Viswanathan (Emerson College) and Michael Carroll (American University) to discuss the issues of copyright, open access, and research needs.

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A Panoply of Views on Copyright in the Age of AI

Terrific conference earlier in February at the US Copyright Office, co-sponsored by the World Intellectual Property Office, on “Copyright in the Age of Artificial Intelligence” with speakers addressing issues such as the “human-ness” requirement for authorship and invention under copyright and patent rules. Other difficult issues included the extent to which the ingestion of copyright-protected content might be a fair use or copyright exception, the exploding issue of deep fakes, and an exploration of creativity in computer-generated images and in the “Next Rembrandt” project. Below is Francis Gurry (WIPO director-general) kicking off the 5 February discussions. I attended with a number of CCC colleagues including Roy Kaufman and David Davis, and was happy that my notes were published on the CCC “velocity of content” site here http://www.copyright.com/blog/a-panoply-of-views-on-copyright-in-the-age-of-ai/.

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Texaco decision anniversary and licensing 

By Mark Seeley | January 2021

Twenty-five (close to 26) years ago, the publisher plaintiffs in the Texaco case (https://openjurist.org/60/f3d/913) settled with Texaco over unauthorized copying of science journal articles for commercial purposes. The case was led by the American Geophysical Union, the earth and space science society and publisher of a number of leading journals, supported by an extensive list of other scholarly publishers and the CCC (Copyright Clearance Center, where I am a Board member). The decision and settlement were important events in establishing that businesses cannot assume a “fair use” defense, even if they are engaged in some form of research, and led to the establishment and success of the CCC in offering licensing options for corporations (CCC has other licensing and service options as well).

The CCC asked a number of copyright experts and advocates to write essays on the broader issues and implications as part of the 25th anniversary commemoration, and I was happy to contribute an essay for the CCC ebook along with my colleagues Lois Wasoff (former GC at Houghton Mifflin and consultant for a number of organizations including CrossRef) and Bruce Rich (former partner at Weil Gotschal, where he began representing the CCC in 1980). You can find the ebook and an introduction here http://www.copyright.com/blog/creating-solutions-together-lessons-to-inform-the-future-of-collective-licensing/.

Lois’s essay looks at the connection of publishing and licensing, describing the stream of rights behind publishing and readers (including online readers), while Bruce looked at the history of the formation of the CCC and the link to the 1976 Copyright Act, and the importance of the Texaco decision in supporting publisher licensing activities. As a history buff, I was happy to contribute an essay on the history of collective licensing, which I argue is inextricably connected to the evolution of copyright law as an individual or natural/human right. I started with the 16th-century Statute of Anne, which identified authors themselves as the primary rightsholder of their own works, a change from printing monopoly and guild controls from church or government authorities. I note that “[r]ights, however, are but empty promises unless they can be exercised…” to explain how collective licensing provides an effective market framework for individual authors and other creators. I also discussed the CONTU debates in the US (1970’s but with early discussions starting more than a decade before) about technology, use, and licensing, noting that licensing solutions can achieve broad solutions for the society which ensures that users do not become infringers. Licensing organizations like the CCC operate much in the background, connecting individual rightsholders with individual readers/users. There are strong similarities with licensing rights behind music and other entertainment streaming services.

You can find my essay here.
Mark Seeley

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ABOUT THE AUTHOR

Mark Seeley

MARK SEELEY (@marklseeley) consults on science publishing and legal issues through the SciPubLaw LLC entity, and speaks and comments regularly on publishing, licensing, and copyright issues on the site including recently on international publishing contracts, the EU Digital Single Market copyright directive, and Open Access and Transformative Agreements. Mark retired in December 2017 from his position as Senior Vice President & General Counsel for the science publisher and information analytics provider Elsevier.  Elsevier is the leading publisher and information provider in science and health and is part of the RELX Group (which also includes LexisNexis). Mark also served on the Copyright Committees of both the International STM Association (from 2004-2016 as chair) and the Association of American Publishers.

Some recent posts from mark include his thoughts on the Frankfurt Book Fair in 2019 and OA and Transformative Agreements