Copyright is meaningless in the absence of a means to exercise those rights that is also reasonably useful to users. By enabling efficient licensing and guaranteeing remuneration for creative works, CMOs ensure that licenses meet both rightsholders’ and users’ needs and expectations.
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.
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.
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/.
I was pleased to join in the amicus brief supporting the Oracle position on functionality analysis for software copyrightability and fair use, concerning the copying by Google of Oracle’s Java APIs...
Rubbing shoulders at the Frankfurt Book Fair in October reminded me how international the publishing business is. German publishers and authors pass by Korean publishers in the hallways, and potential distributors and translators are looking for local deals for famous international authors. One thing I had to manage as a former General Counsel to an international publisher was how to negotiate international deals and contracts across national boundaries– what laws of which countries should be understood as applying to particular contracts and transactions? In the post you can find HERE I suggest that authors and publishers might agree to bifurcate governing law as between core authorship principles and distribution and enforcement issues.
I also joined a CCC panel at the October Frankfurt Book Fair to discuss the Digital Single Market directive on European copyright matters. As is often the case, the panelists had to cover a variety of issues in 30 minutes, which is always tough—but I thought the slide a helpful summary (new exceptions, fair play re news publishers and online platforms, collective management organization revenues and contract law. I discussed the contrast between the DSM “fair play” approach and the current US “safe harbor” approaches.
I participated in a panel at the Frankfurt Book Fair to discuss Open Access and Transformative Agreements, in the context of the Plan S project and Science Europe’s cOAlition S. Plan S involves a significant acceleration in the move from subscription-based publishing towards OA (including Gold OA, where authors or their funders pay for article publishing charges APCs). My focus on the panel was to discuss the fundamental elements that make up a Plan S-style Transformative Agreement including a plan to transition to OA, OA-style copyright retention by authors, and moves to improve transparency and standards.
The copying and distribution of copyrighted content by libraries present complex legal issues, and although there are existing copyright law exceptions for such library activities (primarily in Section 108 of the US Copyright Law), those exceptions have not formally been amended for digital and online uses. The position statement and white paper on controlled digital lending (CDL) published in September 2018 by Kyle Courtney (Harvard) and David Hansen (Duke) is endorsed by a number of libraries, copyright academics, and other organizations such as the Internet Archive, but should be understood to be primarily an advocacy position, relying principally on a “fair use” argument and some risk assessment. While in the past publishers and libraries have worked together on legislative solutions including a working group on Section 108 in the mid-2000’s, and on a number of pilot e-book lending projects in 2013 and 2014, there was no such “bipartisan” engagement in developing the CDL proposal, and publishers (the AAP) and authors (the Authors Guild) have noted their opposition and disagreement with the CDL position. In this presentation I reviewed the legal issues and discussed alternatives and concerns.
The copying and distribution of copyrighted content by libraries present complex legal issues, and although there are existing copyright law exceptions for such library activities (primarily in Section 108 of the US Copyright Law), those exceptions have not formally been amended for digital and online uses.
A new paper from Nagaraj (UC Berkeley) and Reimers (Northeastern) called “Digitization and the Demand for Physical Works: Evidence from the Google Books Project” (revised April 2019) is said to demonstrate that the unauthorized scanning or “digitization” of entire book collections results in increased demand for “physical works” (particularly specialized works) and thus demonstrates a lack of harm and positive market benefits for authors and publishers. My post here notes that the motivation of authors and publishers in the 2000’s in bringing suit against the Google Books Project was not to inhibit an e-book market, given that publishers were already actively digitizing and making e-books available, but to ensure that Google was not itself allowed to create its own e-book market without authorization from publishers and authors.
At the end of 2018, there was a lot of social media discussion on the “opening” of the public domain (US works published before 1923), the fact that many NIH funded recipients had published their works in questionable perhaps fraudulent journal outlets. These comments all raise the old question of the role of publishers. On the public domain issue, I thought my former colleague Michiel Kolman said it best when he said that those works wouldn’t be known now, and wouldn’t therefore be viewed as treasures, if they hadn’t been published originally under the copyright system by publishers who cared about the works, the authors, and the market for the works. This traditional role of publisher as editor, as curator, as promoter and supporter, is still as relevant today as it was in 1922, and is still relevant for STEM publishing as well. Scientific authors today can easily post their own works themselves on the Internet or in their institutions’ repositories, and yet authors continue to value the editing and publishing process.
Two academics who are critical of “traditional” scholarly publishing, Jon Tennant (https://twitter.com/Protohedgehog) and Bjorn Brembs (https://twitter.com/brembs), transmitted a complaint to the DG Competition in November 2018 about alleged competition law abuses in the EU on the part of my former employer Elsevier (part of RELX Group) and other large publishers in the sector (Springer Nature, Wiley, Taylor & Francis). This complaint seems to build on a related complaint earlier this year by Tennant over Elsevier’s participation in the EU’s Open Science Monitor, and a statement made by the UK’s Office of Fair Trading (now known as Competition & Markets Authority) in 2002 and a 2016 referral to the CMA, and is supported by the European University Association. As I describe below, these complaints are in my view unfounded given that the scholarly publishing market is by definition unconcentrated and open to significant new entrants, and due to the need by government to be neutral and professional in their bidding procedures.
I heard Richard Haas (US Council on Foreign Relations) on MSNBC in October 2018 about the “new NAFTA” (USMCA) and Haas said something that especially piqued my interest in the new treaty text, when he said that the new treaty reminded him more of the Trans-Pacific Partnership language (that Trump famously dumped, although has recently indicated he might want to re-review) than the old NAFTA language. I think what Haas meant by that is that the USMCA is intended to establish more detailed and consistent laws, regulations and treaty mechanisms, that would be certainly consistent with US laws and regulations (indeed some critics of the TPP described it as an attempt to impose US-style laws on others). With that in mind I reviewed the text of the IP provisions (chapter 20) available on the USTR site, and wrote about the details and the complications here.
There are current proposals to significantly amend copyright laws in a number of countries and regions around the world, but probably the most active and most likely to proceed is the Digital Single Market (“DSM”) initiative in the EU.
I was at BookExpo in late May 2018 for a deep dive on trade publishing (general fiction and non-fiction) trends. I was happy to see the banners for new books – the huge poster above the registration section for Susan Orlean’s new “The Library Book” and for the relentless focus on authors throughout the fair—lines around booths for author signatures, and a lot of imprints that I wasn’t aware of even as a fairly regular consumer of such books. I also got some updates directly from panels with 3 trade house CEOs and from the leaders of 3 copyright organizations, and I’m happy to share my views and comments here.
I think the Commission is showing a commendable lack of prejudice, and I think good common sense as well, in being open to participants with publishing expertise (whether university or library-organized, funder-led, NFP society, or commercial entity (publisher or other vendor).
The federal circuit appeals court did not bungle the fair use analysis in Oracle v Google, although it’s understandable that some advocates would prefer a different test for software “functionality.”
I’ve seen a few retweets about a 17 March article in University World News called “Open science in the EU—Will the astroturfers take over?”, and my first thought was that it must be a mistake because pro-copyright organizations in the EU have recently been using the term “astroturf” to talk about organizations that are funded by US technology companies to oppose copyright.
The recent report by Dr. Rosati echoes concerns she has raised before in her IP Kat blog about whether limiting the TDM exception in the proposed DSM directive is “ambitious” enough, noting in her report that innovation could come from TDM projects undertaken by business concerns.
“Professional ethics requirements for publishing on preprint servers”
I enjoyed participating in the NISO conference last week on preprints and their evolving role in scholarly communications.
It has been amazing to see Elsevier and other STM publishers embrace the online Internet world, face the challenges of digital (and old fashioned print) piracy, change business models (agents to subscriptions to OA), expand internationally, and look to add a series of analytical tools and services on top of our traditional content.