Evolving Collective Rights Management for Author, Publisher and User Needs

I’ve updated my somewhat nerdy “history of collective licensing” essay that was published by CCC with contributions from fellow essayist Bruce Rich and Lois Wasoff (see “Creating Solutions Together” ), and was happy to see the update published by Law.com on June 3 in its Legaltechnews newsletter.

The update addressed technological change and adaptation by copyright law and collective management organizations, and discussed new specific user needs such as in creating data sets for artificial intelligence and text-data mining exercises. Collective blanket licenses are particularly appropriate for such high-volume automated requirements. CCC in particular has worked to make TDM licensing efficient and effective.

To paraphrase the English copyright advocate Charles Clark, ‘the answer to technological challenge is technological adaptation’.

The Future of Collective Licensing – Copyright in the Digital Marketplace

By permitting researchers, academics, publishers and others to make use of copyrighted materials and enabling rightsholders to receive royalties for those uses, collective licensing creates efficient markets that make copyright work.

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

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

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

Mark Seeley

The original impetus in 16th century England for crafting a copyright law was the question of State control over printing privileges rather than ecclesiastic control, which Parliament believed had become more urgent after the widespread distribution of convenient (and relatively inexpensive) printing techniques. The Crown began to exert this control by granting monopoly powers to a guild of publishers in 1557. Authors, composers, and other creators at this time were not automatically deemed to be the owners of their works – rather, the monopoly grantees held these rights or, in some cases, artistic patrons exercised such rights. However, the next evolution in copyright – the insistent question of the inherent rights of individual authors and composers in their own works – animated the debates that led to the eventual enactment of the Statute of Anne 150 years later.1

The U.K. Statute of Anne must be seen in the context of a larger philosophical movement in Europe concerning the rights of the individual against the powers of the state. Mark Rose makes this point in his 1993 book Authors and Owners2 in mentioning Daniel Defoe’s struggle with the stationers’ license statute and censorship, and quoting Defoe’s 1704 “Essay on the Regulation of the Press”:













“For if an Author has not the right of a Book, after he has made it, and the benefit be not his own, and the Law will not protect him in that Benefit, ‘twould be very hard the Law should pretend to punish him for it (authors at this time had no copyright in their works but were liable for defamation claims).”

After considerable legislative debate around this question of authorship as a personal property right, the Statute of Anne was enacted in 1710. In contrast, while resolution of the issue took longer, the debate on the Continent was more straightforward. Concepts around the personal nature of the property rights of authors and creators were widely discussed in France in the 18th century, and the French Revolution in 1793 expressly abolished most of the rights of guilds and monopolies and empowered the individual in his or her rights. This debate in France was exemplified by the playwright Isaac le Chapelier’s statement in 1791 that a writer’s creation is “the most sacred, legitimate, unquestionable and most personal of all properties.”3 The French author’s right tradition was eventually followed in the 19th century in Germany and other European countries.

In his 2014 book The Copyright Wars, Peter Baldwin attempts to distinguish the Anglo-American copyright tradition from the continental European author’s right tradition by pointing out that copyright has a more commercial transactional quality (including the significance of readers or the lack of same) while the author’s right approach focuses more exclusively on the creative dimension, including what are termed “moral rights” – in particular, protecting the integrity of the work, and ensuring proper attribution. While it is important to recognize the differences in the two legal traditions, they each provide authors and other creators with the essential rights to distribute, translate and alter their works, as well as the right to authorize others to do so on the creator’s behalf.

Paul Goldstein and Bernt Hugenholtz in their 2013 International Copyright textbook, while noting the differences in the two principal copyright traditions, emphasized the overall commonality of approach:

“. . . while an indisputably utilitarian thread runs through much of the intellectual history of English and American copyright, so too (sic) does a vibrant motif that the author has a natural right to profit from [her] creativity and labor . . . [and at the same time] utilitarianism has crept into the author’s right laws of the civil law tradition . . . . [These two evolutions suggest that] traditional differences will move further into the background as [the] systems gradually converge under the combined influences of international harmonization and a growing international information economy.4

The U.S. follows in the U.K. copyright tradition, but America’s founders were no doubt aware of the philosophical discussions about author and property rights in 18th century France, and this general awareness of the two approaches was likely a factor leading to the form of protection of authors in the U.S. Constitution and the first U.S. Copyright Act (developed nearly simultaneously, in 1788 and 1790 respectively). It is a testament to the broad understanding in the new Republic of the importance of new knowledge that “Authors and Inventors [were given] the exclusive Right to their respective Writings and Discoveries.”5 This incentivizing aspect has been a core concept of copyright law since the 18th century, initially in the U.K. and then the U.S. and only incidentally and later on the Continent.

The U.K./U.S. copyright tradition is different from the European tradition in the former’s grant of flexibility to the author should she choose to alienate some or all of her property rights under copyright laws, as contrasted with the inalienability of certain rights under the latter’s author’s right laws. Under this framework, it is understood that copyright interests can be divided and subdivided almost infinitely, with grants that can be limited in time and/or geography, and that the “bundle of rights” (distribution, translation, etc.) can be divided up and licensed separately and individually (particularly if done on a non-exclusive basis).

Rights, however, are but empty promises unless they can be exercised (and are in fact exercised, at least occasionally). One rationale given for the early printer monopolies was that printers were believed to be better at ensuring that copyrighted works would be distributed and sold than authors might be. Commercial interests – and commercial skills – were deemed critical in developing audiences and readers, in growing public literacy, and in negotiating with other commercial participants in other regions and geographies. An important alternative to this reliance on printers (and their counterparts in music, art and theater), however, began to develop in the 19th century with the creation of collectives of creators and rights. These collectives represented both an important method for bolstering individual creators’ rights and a further evolution in copyright law.

Collective approaches for the development of creator rights

The individual rights of authors, composers and other creators continue to be a critical feature of the copyright laws in all countries but, as Dr. Mihály Ficsor noted in his 2002 publication on collective management,6 there have almost always been instances (particularly with respect to performance rights):

“…where individual exercise of . . . rights did not seem possible, at least not in a reasonable and effective manner; and [more recently], with the ever newer waves of new technologies, the areas in which individual exercise of rights has become impossible, or at least impractical, is constantly widening.”

In the 20th century, text publishers and film and music companies became in themselves collective managers of rights catalogues, particularly as companies merged and sectors consolidated. At the same time, collective organizations emerged and gained strength, including in the U.S. where voluntary collective licensing remains the norm (as compared to the statutory systems in Europe). Solutions for music rights clearances across multiple companies for public performances of musical works are obtained in the U.S. through BMI and ASCAP (and for digital transmissions of sound recordings through Sound Exchange). Collective rights licenses and negotiations have maintained their importance in the 21st century, particularly in the context of “big data” and the interest of technology companies and researchers in accessing and using data from multiple, almost universal sources. Further, as Goldstein and Hugenholtz put it, “the explosion of individualized uses of copyrighted works, whether through uploading, downloading, or streaming, has vastly increased the number of uses to be managed . . . .”7

Collective rights management societies (sometimes referred to as “collecting societies”) such as SACD in France (founded in 1777) came into being at nearly the same time as the fiery debate over the natural rights of authors, and are part of a long struggle by authors, composers and other creators for the recognition of the value of their works and their rights in them. Victor Hugo, who is famously associated with the development of the Berne Convention (aimed at protecting content internationally), also helped to found the SGDL in France for authors (1837) and later the International Literary & Artistic Association (known by its French acronym as ALAI), and similarly the French composer Ernest Bourget was instrumental in forming SACEM for music (1851).8 The Berne Convention was first proposed to the Swiss government in 1883 by the ALAI, and Switzerland acted as a host for several conferences on the topic; the Convention was formally ratified by its ten initial (mostly Western European) signatories in 1887 (although the United States did not ratify the Convention until 1989, more than 100 years later). The Treaty itself does not mention collective licensing or rights but indicates that authors and composers may authorize the use of their works in various ways, including (presumably) through collective rights management.

As noted, the number of collective management organizations (CMOs), including music performing rights societies, has increased dramatically since the late 19th century.  Reviewing the World Intellectual Property Association’s (WIPO) list of core international organizations with CMO members (CISAC, IFRRO, SCAPR9), the number of CMOs appears to be nearly 400 organizations (though there may be some duplication here as some music CMOs are members of multiple international organizations). Copyright Clearance Center is itself a member of IFRRO; IFRRO’s members (over 100 full members and over 50 associate) include both the CMOs (called Reprographic Rights Organizations or RROs in text publishing) and other organizations which represent authors, publishers and other producers of text-based content such as books and journals.

The calculation of the revenues for rightsholders generated through CMO licensing can be difficult to determine, as some CMOs are more transparent than others, and due to the mixing at times of collective and individual licensing revenues (and in some cases some duplicate reporting). It is apparent however, looking at data from CISAC and IFPI (and focusing only on performance rights in broadcasting revenues in the IFPI reporting) and from individual RROs, that music and text CMOs generated well over $14b in royalties for rightsholders in 2018 (the vast majority of that in music). For authors and publisher rightsholders, the major RROs generated well over $1b in royalties in 2018, which compares favorably to the $50b figure for global publishing revenues in 2018 (IPA/WIPO report10), meaning that this “secondary” source of revenue for text publishing amounts to the entire publishing markets for mid-sized countries such as Brazil, Turkey or Belgium. Considering that most RRO licensed uses involve published science and educational content, and given that general trade publishing represents more than 50% of revenue in most countries, the impact for these more specialized publishers is likely even more significant.

In his foundational work described above, Ficsor identifies the fundamental functions of CMOs as follows: monitoring the use of copyrighted works; negotiating with prospective users; providing licenses in exchange for appropriate remuneration (often on the basis of a published tariff system), the collecting of such remuneration, and distributing of the moneys among the owners of rights.11 More recently, Tarja Koskinen-Olsson (former head of the Finnish RRO and currently a member of the CCC Board of Directors) and her co-author Nicholas Lowe prepared a 2012 report on collective management as part of a WIPO educational program12 which covered similar issues as did Ficsor’s report, but helpfully simplified the description of CMO relationships as firstly an upstream relationship between the individual rightsholder and the CMO, and secondly a downstream relationship between CMO and users. The Koskinen-Olsson report emphasized the importance of CMOs for users, noting that “treating users in a non-discriminatory manner is one of the cornerstones of collective management,” along with the importance for users of navigating large volumes of permissions.

National laws in many countries, particularly European civil-law jurisdictions, have specific provisions for CMOs and expressly grant them rights with respect to copyrighted works (such that authors and creators are essentially opted in to collective licenses). These are commonly referred to as “statutory licenses”. Tariffs and levies (essentially taxes on copiers, printers, scanners, storage devices and in some instances even paper) are often used in these countries to develop a reliable base for remuneration. WIPO and IFRRO conducted a survey in 2016 of text and image levies13 and reported that there were nearly 30 countries with levy systems (although half were, at the time of the survey, still in the process of implementation).  European countries were heavily represented among the 30, but countries in Africa and South America are also active in this area. That same survey noted that some €359m were generated for rightsholders in 2015 through such systems, although it noted that (due to the resolution of disputes over past royalties due and other one-time issues) this might be an unrepresentatively higher number than average. Levies are not the only mechanism for remuneration under statutory licenses even in these civil law countries, however, and fee-paying licenses are also often negotiated directly.

National laws in many countries, particularly European civil-law jurisdictions, have specific provisions for CMOs and expressly grant them rights with respect to copyrighted works (such that authors and creators are essentially opted in to collective licenses). These are commonly referred to as “statutory licenses”. Tariffs and levies (essentially taxes on copiers, printers, scanners, storage devices and in some instances even paper) are often used in these countries to develop a reliable base for remuneration. WIPO and IFRRO conducted a survey in 2016 of text and image levies13 and reported that there were nearly 30 countries with levy systems (although half were, at the time of the survey, still in the process of implementation).  European countries were heavily represented among the 30, but countries in Africa and South America are also active in this area. That same survey noted that some €359m were generated for rightsholders in 2015 through such systems, although it noted that (due to the resolution of disputes over past royalties due and other one-time issues) this might be an unrepresentatively higher number than average. Levies are not the only mechanism for remuneration under statutory licenses even in these civil law countries, however, and fee-paying licenses are also often negotiated directly.

Copyright Levies

In addition to governance standards set out in national laws establishing civil law statutory license systems, CMOs themselves and the international organizations of CMOs (for example, CISAC) often have their own governance standards. The European Union’s CMO Directive of 201414 also provides governance standards, with emphases on representation of rightsholders, responsible distribution of remuneration, regular reporting and transparency. The potential for multi-territorial licensing that was encouraged under this Directive was also reinforced in the Directive on Copyright in the Digital Single Market of 2019.15

Many CMOs are formed by creators and their producers and publishers on a voluntary basis, particularly in countries where there are no statutory rights granted to CMOs; the predominant responsibility of CMOs in such countries is the negotiation of fee-bearing licenses with users and the equitable distribution of the resulting royalties among the participating rightsholders. Copyright Clearance Center itself is an example of such, identified by Ficsor as being involved in “agency-type rights clearance.”16 However, even in countries such as the United Kingdom or the United States where “agency licensing” is the predominant model, some compulsory licenses have been put into place, particularly in connection with music.17

ASCAP and BMI are other U.S. examples of agency organizations. They were formed in 1914 and 1939, respectively, to represent rightsholders of musical compositions and provide licenses (principally blanket or flat fee licenses) for public performances from vaudeville through concert halls to radio and television broadcasting,18 and have been joined more recently by the relatively smaller SESAC, as well as Sound Exchange in relation to digitally transmitted performances of sound recordings.  ASCAP and BMI operate under consent decrees (1941 and 1950, respectively) that resolved lawsuits brought on antitrust grounds. Those consent decrees have been amended periodically as the market has evolved, and today they address, among other things, the limitation upon ASCAP and BMI to obtain solely non-exclusive licenses from their participating creators (thus preserving individual licensing even within a collective licensing context).  . As of early 2020, there is continued discussion of whether the consent decrees are out-of-date in the highly competitive environment dominated by the Internet.  In the meantime, they create a governance structure concerning matters such as reasonableness in fee structures, somewhat similar to the CMO Directive in Europe.

As noted above, collective licensing is particularly appropriate for high-volume, repeated instances of copying or re-distribution, where the transaction costs associated with licensing rights on a direct, individual, producer-to-user model would be prohibitive. Even in countries where there are extensive statutory collective licenses, it is accepted that for high-value works and for unusual or complicated use-cases, transactional individual licensing is the appropriate legal model. For example, online digital rights are still viewed in most countries as requiring a greater degree of individual licensing or opting-in to collective licensing schemes, as it is understood that the potential for financial harm given the ease of digital copying and further unauthorized online distribution is very significant.

Transactional licensing for new technologies: new markets and new uses


New technologies have always presented challenges for copyright law, in some cases raising questions about copyright applicability to works in new media, and in other cases raising questions about the degree to which the reproduction capability of new technologies can substitute for existing copyrighted-works markets or forestall the development of new “on demand” markets. Printing, photography and eventually photocopying were all examples of new technologies that over time presented new challenges for copyright law.

We tend to think that printing itself is “old technology” in light of its invention in the 15th century, but the reality is that printing methodologies and technologies have also increased dramatically over the past century, substantially increasing the speed of production, lowering costs, and helping to create global (or many linked regional) markets for books and periodicals. At the same time, cheaper and faster printing capabilities have also enabled quicker and more pervasive counterfeiting.

Photography as it developed in the 19th century was not always seen as a creative endeavor meriting copyright protection – the view of some was that a photograph merely copies what already existed in nature. It was protected first under “neighboring rights” laws in Europe but gradually became more accepted by the mid-20th century as a form of creative work that merits copyright protection.

News and newspapers were critically important in a developing country such as the U.S. in the 19th century – informing and influencing citizens and voters, and providing important market and shipping information – but news articles were not considered copyrightable subject matter until the 1909 Copyright Act (concerns existed then and now concerning news and the idea/expression dichotomy). Will Slauter’s 2019 book Who Owns the News19 discusses the alternate market for copyright-like protection of news that developed in the 19th century through syndication and the bartering of services; he also reports that, even after the 1909 Act, other legal doctrines such as the “hot news” doctrine20 were used to provide some time-limited protection for newspaper content.

Technologies that facilitate the reproduction of copyrighted works have existed for some time – music has dealt with such issues in connection with technology ranging from music rolls for pianos to tape and digital recordings. The mass-market photocopy machine as developed in the 1950’s raised a huge number of issues for text publishers and was an important impetus toward the U.S. copyright revision efforts in the 1960’s, which would eventually result in the 1976 Copyright Act.

Professor and Judge Benjamin Kaplan (1911-2010)21 in his influential 1967 work An Unhurried View of Copyright22 addressed the question of photocopying in the context of the copyright revision debate of the time.  Among other things, he noted that some copying might well be considered fair use, that other copying would no doubt have significant commercial impact on existing markets, that the photocopying market itself was a new market, and that there might be questions about photocopying in connection with out of print works and scholarly research needs. Kaplan noted that “machine copying of texts is getting progressively easier and cheaper, and it can be done privately, without attracting much attention to itself,” and he raised concerns about:

. . . subject[ing users] to civil and even criminal liability for acts now as habitual to them as a shave in the morning, especially as publishers are still far from devising any simple methods by which this public could calculate and make the payments that might clearly legitimate those habits . . . . We do hear talk of creating some ASCAP-like system, but at present this is only talk.23

Professor Benjamin Kaplan

Professor Benjamin Kaplan

That ASCAP-like system discussion was of course the early discussion about the creation of a new U.S. CMO for text content, dealing with precisely these mundane but critically important questions of routine copying – made even more significant in the later era of scanners and PDFs – where it may be the case that the people engaged in the copying are not “professional counterfeiters” but members of the general public.

This question of the scope of protection and the balancing of fair use factors in photocopying was featured in the seminal case on the copyright issues raised by the copying of scientific and medical journal articles – Williams & Wilkins v. United States.24 The publisher in this case brought suit under the 1909 Copyright Act (pre-1976 Act adoption) against the National Institutes of Health and the National Library of Medicine for their practice of photocopying and mailing out copies of medical journal articles on request (with burden-based, and not copyright-based, limits on the number of pages and articles provided in any given instance). The fair use elements that we are familiar with today from the 1976 Act (Section 107) were merely common law elements at this time, and the Court of Claims (sitting as an appeals court) found the copying to be a fair use, and thus not infringement, as there was no adequate showing of harm (what we would think of today as the fourth 107 factor), and since medical research might be “injured” if the activity was held to be infringement (loosely, the first 107 factor). The Court of Claims also noted that the differing interests of publishers and science warranted “legislative solution or guidance, which has not yet been given . . .” and did not want to risk the purported harm to science of stopping or limiting this routine photocopying in the absence of such guidance. In the sidebar note below I comment further about the balancing of fair use factors involving research and education against the commercial viability of specialized science and medical publishers.

The preeminent Nimmer copyright treatise25 was highly critical of the Court of Claims result in Williams & Wilkins, arguing that the “harm to publishers” analysis confused damages and liability, and noting that actual damages are often difficult to prove, which is why statutory damages are available as an alternative. Nimmer then notes that the discussion about the harm to science is peculiarly general, not limited to the specific practices in question. Finally, Nimmer noted that Williams & Wilkins is at its core only an intermediate appellate court decision (because the Supreme Court upheld the decision only because it was equally divided as Justice Blackmun did not participate), and that other circuits might well reach different conclusions, perhaps involving more careful analysis of copyright law – as in fact happened twenty years later (under the “new” 1976 Copyright Act) in American Geophysical Union v. Texaco Inc.26

CONTU, photocopying and the 1976 U.S. Copyright Act


In conjunction with the work undertaken legislatively and in the U.S. Copyright Office in the 1960’s and early 1970’s on major U.S. copyright law revision, Congress created the National Commission on New Technological Uses of Copyrighted Works (CONTU) in 1975 to address questions about computer programs, works created through the use of computers, and photocopying. The Commission was chaired by Stanley Fuld, former Chief Judge of the State of New York, with copyright law professor Melville Nimmer as vice-chair, and included ten well-respected publishers, librarians, writers and legal professors. The final CONTU report was issued in 1978,27 although there were several follow-up reports on library photocopying from the Register of Copyrights that produced no changes to either law or practice.

The CONTU Report quoted from earlier legislative deliberations on the difficulty of the issues around library photocopying, fair use, and permitted uses, noting a 1961 House Committee report’s general statement that “photocopying should not be permitted where it would compete with the publisher’s market . . . . Thus, when a researcher wants the whole of a publication, and a publisher’s copy is available, [she] should be expected to procure such a copy,”28 although exceptions were contemplated for small excerpts of a work or when a work is out of print. The proposed solution for multiple and commercial photocopying was much simpler – “an industrial concern should be expected to buy the number of copies it needs from the publisher, or to get the publisher’s consent to its making of photocopies.” It was noted in the Register’s Report of 1961 on copyright law revision that there was discussion of the

The CONTU Report quoted from earlier legislative deliberations on the difficulty of the issues around library photocopying, fair use, and permitted uses, noting a 1961 House Committee report’s general statement that “photocopying should not be permitted where it would compete with the publisher’s market . . . . Thus, when a researcher wants the whole of a publication, and a publisher’s copy is available, [she] should be expected to procure such a copy,”28 although exceptions were contemplated for small excerpts of a work or when a work is out of print. The proposed solution for multiple and commercial photocopying was much simpler – “an industrial concern should be expected to buy the number of copies it needs from the publisher, or to get the publisher’s consent to its making of photocopies.” It was noted in the Register’s Report of 1961 on copyright law revision that there was discussion of the

“. . . possibility of a contractual arrangement whereby industrial concerns would be given blanket permission to make photocopies for which they would pay royalties to the publisher.”29

In 1965, a supplementary report was prepared which outlined the concerns on the part of authors and publishers about overly generalized references to “teaching, scholarship or research” in the proposed Section 107, as such references might lead to the conclusion that all uses connected with such activities would be deemed “fair”. Educational organizations advocated for a clearer description of circumstances where copying would be lawful. The 1965 report also noted that:

“It was suggested that a clearinghouse for educational materials, through which it would be possible to avoid problems of clearances, is a practical possibility for the near future.” 30

These discussions about blanket licenses for industry and a clearinghouse for educational institutions are likely the basis for Benjamin Kaplan’s comment concerning a possible ASCAP-like system.

Section 108 of the 1976 Copyright Act deals with reproduction by libraries and archives, and it began to take shape in the 91st Congress (beginning in 1969) through the 94th Congress (1975). The CONTU Final Report highlighted the Senate Judiciary Committee discussion in 1975 on the continued legal uncertainty in library photocopying, describing the Williams and Wilkins case as a “holding operation” pending Congressional action.31

CONTU might be best known for two sets of guidelines, one dealing with in-classroom teaching and the other dealing with the interpretation of the proviso in Section 108 about limited copying that would not amount to a substitution for subscription or purchase. The Classroom Guidelines were agreed to in 1976 by the Authors League, the Association of American Publishers and an ad hoc group of educational institutions, and emphasized that instructors could make multiple copies of short excerpts of published content for student use (short poem or excerpt from longer poem; article, story or essay if less than 2,500 words or an excerpt if the published piece was longer; single illustrations) if the teacher making the copy was doing so spontaneously and so close in time to the class that it would be unreasonable to wait for permission. The Classroom Guidelines also contained conditions concerning potential cumulative effect, and provisions about copying not being used to substitute for anthologies or collective works, or to diminish the purchase of books or reprints, and about the same material not being repeatedly copied by the teacher from term to term. The interlibrary loan guidelines (known as the “rule of 5”) require permissions or licenses:

“with respect to any given periodical . . . filled requests of a library or archive within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request . . . .” 32

The clear view in the late 1970’s from the courts, from copyright law experts, from various stakeholders, and from the U.S. Congress and Copyright Office was that photocopying of text content remained a contentious and complex issue, even with sector agreements and guidelines on certain photocopying circumstances. The stakeholders believed that a CMO that would enable efficient licensing at a modest per-transaction rate would give greater certainty for users, authors and publishers, and would guarantee remuneration for creative works. The stage was set for the creation in 1977-78 of Copyright Clearance Center, or CCC. 

The formation of Copyright Clearance Center


CCC was formed in 1977 as a not-for-profit corporation by a group of authors and publishers, together with (unusually for a CMO) several user stakeholders. From the time it opened its doors in 1978 (on the effective date of the Copyright Act of 1976), CCC has consistently collaborated with users as well as rightsholders to ensure that its license and related offerings meet both sides’ needs and expectations. CCC’s core mission statement is about accelerating knowledge and innovation through advanced copyright solutions, and CCC has over the years expanded the licenses it offers from the simple pay-per-use transactional services (the Transactional Reporting Service or TRS) it offered in 1978 (available today on its website and Marketplace service) through annual repertory licenses for different groups of users and geographies (beginning in 1984) to a whole series of discovery software and rights management services (starting in 2001). Licenses can be obtained for individuals, for educational institutions, for companies, and for many other organizations, and those licenses today cover an enormous variety of content, including books, magazines, newspapers, blogs and other text-based materials, although scholarly published content has always been core to CCC’s mission.  I set out in the side bar some thoughts on the value of collective licensing, including that offered by CCC, to the scientific and scholarly publishing communities.

The formation, activities and governance of CCC are consistent with the aspirations noted by Ficsor and Koskinen-Olsson for CMOs (and their proposed, and the European Commission’s enacted, guidelines for CMO operations) for the transparency of reporting to rightsholders and for creative engagement with users over the evolution of usage needs. CCC’s representation of authors’ and publishers’ rights also reflect the imperative for collective licensing to supplement (and not replace) individual licensing and sales initiatives for higher-value publication rights. As noted above, copyright is meaningless (as are the author’s rights in the European model) in the absence of a means to exercise those rights that is also reasonably useful to users; CCC’s and other CMOs’ services provide precisely those means for those “secondary” uses of copyrighted works.



Scientific, technical, medical and scholarly journal publishing (sometimes referred to as “STM” publishing) is a natural market for collective licensing solutions such as those offered by CCC, and STM publishers strongly supported the formation of CCC and of the collective licensing programs of other CMOs around the world. The reasons for this strong support by STM publishers continue to this day.

First, the content published by STM publishers is valued highly by researchers, scholars and educators – and, given that individual specialized journals may be considered expensive (somewhere between $1,600 to $2,000 on average annual subscription price, as noted in the April 2020 annual Library Journal survey), there is a strong demand for copies of individual articles for particular needs at reasonable “by the piece” prices.


Second, the STM market is a large and diverse market – although there are four or five major publishers with portfolios of more than 500 journals, there are many thousands of scholarly publishers, including some which publish only one or two journals (some of which are the leading journals in their fields). This size and diversity make permissions processes quite complicated, and collective licensing solutions can help to remove much of the friction involved.


Finally, scholarly publishing is so closely aligned with – truly part and parcel of – scholarly research and education that publishers are highly incentivized to support efficient and effective licensing mechanisms.


There are some advocates who would argue that “fair use” copyright principles in the U.S., and other research-oriented copyright exceptions in other countries, mean that users should be able to copy STM journal articles without obtaining permission or the payment of licensing or transaction fees if they have a scholarly or educational purpose. In fact, such research- or teaching-oriented uses address only one of the four factors for determining fair use under U.S. law – and all four factors must be considered in any fair use analysis. Fair use is specifically intended to balance the interests of both the users and the copyright holders (and not to simply deliver “free use” rights to a user who falls into a particular category).


This need for a fair balancing of the interests was evident in the reasoning of both the appellate court and the US Supreme Court concerning the copying of scientific and medical journal articles in the Williams & Wilkins case. The creation of CCC occurred after this case, and arguably at least in large part because of this case. In any event CCC’s founding was strongly supported by the medical publishers involved in the Williams & Wilkins case (both the plaintiff and its supporters in the industry) as a way of demonstrating (i) that there was in fact a vibrant market for copies of individual articles (which represents the market impact factor in any fair use analysis, sometimes described by the courts as the most important single fair use factor and today set forth as the fourth factor in Section 107) and (ii) that the publishers were avidly interested in making that market as convenient and efficient as possible for the users.


New or expanded education and research exceptions in copyright laws are promoted constantly in many countries in the world, including most recently (as of 2020) in the EU’s new Directive on Copyright in the Digital Single Market (which has new exceptions for text and data mining) and in South Africa. The presence of existing market solutions – such as those offered by CCC – for education and research needs will continue to be an important factor in presenting a fair picture of how the market functions and will continue to support a business base for STM publishing. Such solutions need to be comprehensive, speedy, and reasonable in cost for research and education purposes, and efforts made by CCC to support new uses such as text and data mining through convenient licensing tools and services will continue to be important in determining how markets and laws develop.

 Jane Ginsburg, “Overview of Copyright Law” in R.C. Dreyfuss & J. Pila, Oxford Handbook of Intellectual Property Law (2018).


2 Mark Rose, Authors and Owners, the Invention of Copyright (Harvard U. Press 1993) at p.35.


3 As quoted in Chapter 2 of Peter Baldwin, The Copyright Wars: Three Centuries of Trans-Atlantic Battle (Princeton U. Press 2014).


4 Paul Goldstein & Bernt Hugenholtz, International Copyright: Principles, Law and Practice (Oxford U. Press, 3rd ed. 2013) at p. 6


5 U.S. Const., Article I, clause 8.


6 Mihály Ficsor, Collective Management of Copyright and Related Rights (WIPO publication no. 855, 2002) at 16.


7 Goldstein & Hugenholtz, op. cit., § 7.7.


8 Dr. Ficsor’s WIPO publication (at 18-19) gives a helpful discussion of SACD (Société des auteurs et compositeurs dramatiques or the Society of Dramatic Authors and Composers [theatrical]) and SGDL (Société des gens de lettres or the Society of People of Letters [fiction and non-fiction authors]), both of which organizations are still active today.  Bourget’s contributions for music composers, including the creation of SACEM (Société des auteurs, compositeurs et éditeurs de musique or the Society of Authors, Composers and Publishers of Music) are discussed in the article “Performing Rights Societies in the Digital Environment” by Philippe Gilliéron (Stanford U. thesis 2006).


9 See the “outside links” section on the WIPO landing page on collective management, which includes links to CISAC (International Confederation of Societies of Authors and Composers), IFRRO (International Federation of Reproduction Rights Organizations), IFPI (International Federation of the Phonographic Industry), SCAPR (Societies’ Council for the Collective Management of Performers’ Rights), and AGICOA (Association for the International Collective Management of Audiovisual Works).  URL : https://www.wipo.int/members/en/organizations.jsp?type=NGO_INT


0 International Publishing Association/WIPO report https://www.wipo.int/publications/en/details.jsp?id=4488


1 Ficsor, op. cit., at 17.


2 Tarja Koskinen-0lsson and Nicholas Lowe, Module 1 General Aspects of Collective Management https://www.wipo.int/edocs/pubdocs/en/wipo_pub_emat_2014_1.pdf (part of WIPOs Educational Material on Collective Management of Copyright and Related Rights


3 International Survey on Text and Image Copyright Levies (WIPO publication 1042-20, 2014) at 6.


4 Directive 2014/26/EU on Collective Management of Copyright and Related Rights and Multi-Territorial Licensing of Rights in Musical Works for Online Use in the Internal Market (26 February 2014).


5 Directive (EU) 2019/790 on Copyright and Related Rights in the Digital Single Market (17 April 2019).


6 Ficsor, op. cit., at 74.


7 Even in the U.S., compulsory licenses exist for certain performance rights in music (in television broadcasts and in digital radio) and they are supplemented by the “mechanical” licenses for devices that play or reproduce sound – the compulsory mechanical license found in Section 115 of the U.S. Copyright Act provides that, after a song has been recorded and released for the first time, the owner is required to make licenses available (on terms controlled by the statute) to third parties that also wish to make and release a commercial recording (think of “covers” of famous songs).


8 ASCAP (American Society of Composers, Authors and Publishers) was formed in 1914; BMI (Broadcast Music Inc.) was formed in 1939.

9 Will Slauter, Who Owns the News: A History of Copyright (Stanford U. Press, 2019).


20 International News Service v. Associated Press, 248 U.S. 215 (1918).

21 Benjamin Kaplan was a professor at Harvard Law School and later at Suffolk University Law School, where the author took his copyright law class; early in his career, Prof. Kaplan was part of the legal staff that brought indictments and convictions against Nazi officials in the 1945-46 Nuremberg trials; during the 1970s, he served on the Massachusetts Supreme Judicial Court and, after retirement, was recalled to serve on the Massachusetts Appeals Court from 1983 to 2005.


22 Benjamin Kaplan, An Unhurried View of Copyright (Columbia U. Press 1967), from a series of lectures delivered at Columbia; republished by LexisNexis (in conjunction with Suffolk U. Law School) in 2005 in an expanded version with contributions from other copyright professors and professionals.


23 Id. at 102.

24 Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff’d by an equally divided Court, 420 U.S. 376 (1975).


25 4 Melville B. & David Nimmer, Nimmer on Copyright § 13.05[E][4][c] (Matthew Bender Rev. Ed.).


26 60 F.3rd 913 (2nd Cir. 1995).

27 Final Report on the National Commission on New Technological Uses of Copyrighted Works (July 31, 1978); 192 pp. Printed copies are now hard to find; a version formatted for online viewing is online at: http://digital-law-online.info/CONTU/contu-toc.html


28 CONTU Final Report, p 89-103 ff. See also: “Circular 21, “Reproduction of Copyrighted Works by Educators andLibrarians” Available online at: https://www.copyright.gov/circs/circ21.pdf


29 “Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law” (1961) p. 26. Available at: https://www.copyright.gov/history/1961_registers_report.pdf.


30 See Circular 21.

31CONTU Final Report, Appendix A, pp. 100-101.


32 H.R. Rep. No. 94-1733, at 72.

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

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

Presentation at September 2020 panel organized by US Patent & Trademark Office and US Department of Justice (antitrust)

We live at the confluence of content/data and technology—this can be seen in the amazing power of supercomputing to analyze and categorize billions of data points (as in mapping the human genome) or the ability of new AI applications to identify new relevant and unexpected analytical insights from disparate content. But there are still some long-term constants— informational content, particularly scientific research content—is most valuable when it is organized, standardized, updated, and indexed.

Scholarly communication is largely supported through scholarly journals, and the journal article has become a well-organized vehicle for conveying research information. Articles have an almost universal structure—an abstract followed by a description of the research methods employed in the research activity; the discussion or paper itself (results + conclusion) including charts, graphs, and other data, and of course the references list. Publishers have evolved this structure, and although some authors chafe over the confines of the structure, researchers themselves highly value this organization of information, as it improves their efficiency in reviewing the large number of articles that might be relevant to their projects.  

Publishers have in recent decade moved this content online, “retro-digitizing” earlier journal issues, and incorporating such online innovations as reference linking (CrossRef) and standards in terminology, representations of chemical structures, and the display of formulas. Researchers themselves helped launch many of these innovations, but publishers made them consistent and universal, to the benefit of society (see Kent Anderson’ famous Scholarly Kitchen post on the things that journal publishers do here). Although authors contribute articles to journals on a royalty-free basis (unlike in book publishing), as part of their general work at universities, research institutions or in research-intensive industries such as life sciences, the cost for these innovations and for managing the large number (some 3m articles published per year in the international literature, more if humanities publications are more fully represented), and the submission processes dealing with many more millions of papers (data from the STM Report), along with maintaining the archives and platforms where such content is accessed, is considerable.

Picture courtesy of “artlibrarycrawl.com”.

Copyright is fundamental to the business of journal publishing, as the vast majority of articles are still published under a subscription model. Although author-pays (or funder/institution pay) Gold Open Access is increasing significantly (a recent Plan S position paper suggests as much as 20%), the economy supporting journal publishing will likely be a mixed one for some time. In terms of supportive US government action, in my view, the most useful thing for the scholarly communication construct would be to ensure that research funding also includes publication costs, as is true in many European countries. This would enable a sustainable Gold OA future for government-funded research.

We hear that data is the new currency, and life sciences innovation and the urgency of Covid-19 research certainly demand that further work be done to enable computational research of published articles (“text and data mining”) and on research data itself, the data that represents the raw research results before it is analyzed, reviewed and shortened to fit into a journal article. Patents are also sources for data mining. Publishers have established tools for TDM processes through the STM association with the 2013 Declaration supporting non-commercial TDM supported by more than 20 publishers (representing all the major publishers) and by offering collective licensing options through CrossRef the Copyright Clearance Center for TDM applications. These programs offer “normalization” methodologies that provide a more consistent database against which to apply computational queries. EU law now permits non-commercial TDM in any event as a copyright exception, although there are more limits with respect to commercial activities. Publishers supported the initiative organized by the STM publishers association to open Covid-19 content for use by researchers, and as of this summer we have seen as much as 150m downloads of articles.

Publishers who are particularly active in the life sciences space such as Wolters Kluwer and my former employer Elsevier are also using these kinds of analytic or TDM technologies to support drug development and discovery. These companies are providing data about existing drugs but also about potential reactions, relying on chemical structure information and the literature. These products combine published content, including patents, with technical mining and analytics. Technology companies such as IBM (Watson) are also actively innovating in this space (the recently announced Robo RXN). These new tools are supporting the drug pipeline by focusing on such data as adverse events, reactive data and the like. Such tools are intended to replace actual trials of potential drugs that might ultimately be ineffective or even harmful. What is probably obvious in this discussion is the complexity of research publishing in the life sciences space—especially given the mix of public data and public emergencies with private data and commercial motivations in developing new solutions and therapeutics. One aspect of this complexity is that commercial players are not always motivated to publish all their data (indeed even scholarly researchers are sometimes reluctant), and society as a whole needs to push to have more data (such as negative trial results) made more public. The urgency of Covid-19 has encouraged greater collaboration and openness in sharing research data.

The STM publishing association’s major initiative of 2020 involved launching the “Research Data Year” and establishing collaborative initiatives with organizations such as the Research Data Alliance. The collaboration with RDA involves new standards on data availability, linking from publications to data repositories, and working on principles for managing data repositories. We are beginning to see here the expansion of the traditional publisher role to the standardizing capabilities in data curation, building on earlier experiments (commercial and scholarly) such as figshare, Mendeley, protocols.io. (scholarly project supporting the deposit of methods). Government support for research data management projects would be extremely helpful (going beyond merely mandating data posting requirements for funded projects to provide funding for such projects).

A major impediment that I see at this point of confluence is a commercial one— companies with strong content assets are unlikely to accept that the value of new analytic services for life science is mostly about the technology— while companies with strong technology assets are unlikely to accept that content assets bring the highest value to the equation. One consequence is that content companies are developing their own technological assets and platforms and that technology companies are trying to develop or identify cheaper content assets. The reality is that both types of initiatives are important and probably equally so. There’s a similar issue for AI and machine learning—on one hand, large data sets are useful and on the other hand, structured and well-organized data is equally useful.

View Presentation

Mark Seeley

A Panoply of Views on Copyright in the Age of AI

A Panoply of Views on Copyright in the Age of AI

Francis Gurry
Director General
World Intellectual Property Organization

A Panoply of Views on Copyright in the Age of AI

Early in February, several CCC executives, staff and “friends of the firm,” (as well as a roomful of other fans of copyright) participated in a one-day conference on “Copyright in the Age of Artificial Intelligence,” (AI) which was co-hosted by the US Copyright Office and the World Intellectual Property Organization. Mark Seeley, a CCC Board Member, wrote the following observations on this timely event for CCC:

This one-day conference held in the Washington offices of the Copyright Office was the second in a series of conferences under the aegis of WIPO and the USCO to help establish an appropriate legal framework to consider the implications of AI (in its various applications and forms). Both Francis Gurry (WIPO Director General) and Maria Strong (acting Register of Copyrights) indicated in their introductory remarks that the focus of these discussions would be around identifying whether the appropriate questions are being asked concerning the intersection of intellectual property (IP) and AI.

Gurry noted that IP has been built around the notion of “property” and that AI raises the question of how AI interacts with copyright-protected content used for data ingestion. He identified the two key issues as (1) the interaction of AI and the current copyright system and (2) the new concept of machine-created content. In recent court decisions in China, the courts struggled to identify the “dominant” human being or proximate inventor in AI projects. Gurry spoke of the concern about deep fakes (while noting that there are other potential legal remedies, such as defamation claims or claims of infringement of rights of publicity), and he also pointed out questions about the use of medical information for health AI applications. Concerns about deep fakes, including voice fakes, were also expressed in one of the afternoon panels by Sarah Howes (SAG-AFTRA).

Gurry and Strong both noted that human creativity is fundamental to the current structure of IP laws. Andrei Iancu (Director of the U.S. Patent and Trademark Office) noted that the PTO is currently reviewing submissions made in connection with a series of questions on AI and IP it posed in the fall of 2019 and indicated a report will issue by the spring of 2020.

The panels of experts that followed spoke to specific AI applications in various fields, primarily in artistic fields, and nearly all of the applications fell into the category that CCC described in its PTO submission as “Machine Learning” (ML) techniques. These techniques start with a proposition or goal, develop a ML algorithm that is applied to sets of data (which can be unstructured content), and then refine the techniques through feedback. The relevance and quality of data is often a critical factor in successful AI projects.

Professor Ahmed Elgammal (Rutgers) gave a history of the utilization of photographs and other images, but uniquely described a computer system that would itself generate images based on its increasing understanding of what certain objects might look like – this did not involve merely “mining” and extracting data from data sets but creating a new work entirely. This was described by Elgammal as involving a generator (using no data) working in conjunction with a discriminator (a “critic” using data access). The generator creates an image with feedback from the critic. Other examples provided included creating false face images. Importantly the creative aspect (a “Creative Adversarial Network” or CAN) can be used to “break out of a style”.

This made a nice contrast with the “Next Rembrandt” project (through TU Delft and the Mauritshaus Museum) which involved scanning the oeuvre of Rembrandt paintings and reproducing techniques (including the dimensionality of the application layers of paint) to create a “new” painting in the style of Rembrandt, as discussed by Andres Guadamuz (senior lecturer at the University of Sussex). Sandra Aistars, of the Antonin Scalia law school  at GMU, read from a critical review by Jonathan Jones in The Guardian about the project. Jones described The Next Rembrandt project as foolish and empty – focused more on style and not on the heart or substance of the artist’s world view. Astairs went on to question whether the project had more to inform us about forgery than about new creativity.

The panel on the administration of international copyright systems included Ros Lynch (UK IP Office), Ulrike Till (recently appointed head of WIPO’s new AI directorate) and Michele Woods , also of WIPO. Lynch noted that protection in the UK for “computer-generated works” has been in existence since the late 1980’s, with the author identified as the human who made the “necessary arrangements” for the creation of the work. The UK provisions have a 50-year duration (shorter than the more traditional “life of the author plus 70 years”), but Lynch noted duration could be something reviewed in the future. The question of originality is an important factor concerning possible protection, and Lynch noted that the legal analysis would concern the choices made or the degree of “personal touch” reflected. Secondary infringement analysis of such works is still probably an open question. UK law on computer-generated works most likely reflects the more “utilitarian” view that UK copyright law has often adopted, for example with compilations of factual information.

The formation of a new AI division within WIPO reflects the importance with which WIPO views the matter, as noted by Ulrike Till. Michele Woods of WIPO also discussed the various AI tools used by WIPO for IP prosecution and policy development (such as translation engines and prior art data); Woods noted that the tools are under considerable revision now  so that we can expect to see new versions of some of these tools, or new web site platforms, rolled out over the course of 2020.

The discussion of collective licensing as a possible solution to the problem of the need for lawful large-scale ingestion of copyrighted content came up in several presentations, including that by Mary Rasenberger , Executive Director of the Authors Guild), Professor Astairs. A little later in the afternoon came the music AI panel, comprised of Joel Douek (EccoVR), Michael Harrington (Berklee Online), David Hughes (RIIA) and Alex Mitchell (Boomy). That last one, Boomy, is a fascinating new technology play for producing AI-generated music, whose tag line says it all in a nutshell: “Make Instant Music with Artificial Intelligence.”

Suggestions made for an expansion of fair use, or an interpretation of fair use to permit AI exceptions, were advocated by panelists such as Meredith Rose (Public Knowledge), Julie Babayan (Adobe), and Amanda Levendowski (Georgetown).

Technical developments that affect the potential copyright protection for works created by AI were very well explored in the all-day session, with examples from across the spectrum, and the framing questions on authorship (must a human be involved?) and ingestion seem like the appropriate questions. One gets the sense that examples from collective works such as films might be helpful in discussing questions about authorship and contribution, and that collective licensing (such as that offered through CCC and other organizations)  for text and data mining can be helpful in addressing  some of these problems, may be followed up in later conferences. It certainly sounds like there will be plenty to talk about.

Oracle v. Google at the Supreme Court

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 (https://www.supremecourt.gov/DocketPDF/18/18-956/133292/20200218154154863_18-956%20bsac%20Copyright%20Thought%20Leaders–PDFA.pdf), which is now being considered by the Supreme Court.

Kudos to Steven Tepp for the drafting and organization of the brief. In my view, there is no clear error on the part of the CAFC in its analysis of functionality and copyrightability (there are clearly several different methods among the Circuits for such analysis, but none seem inherently wrong), and even more fundamentally the fair use analysis by the CAFC is persuasive and comprehensive—there is no appearance here of “transformative” use. I’d posted similar comments in 2018 on the CAFC decision in this post (https://scipublaw.com/oracle-v-google/).


Download the Oracle v Google Brief

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

Copyright and Contract Law in International Publishing

Copyright and Contract Law in International Publishing

An abridged version of this post was published on December 9, 2019 at Copyright.com 

It is a truism that publishing is an international business, and the Frankfurt Buchmesse itself, held this past October, is a strong indication of this global dimension, with separate halls for different countries and international stands, presentations going on simultaneously in German and English (and no doubt several other languages) throughout the conference areas. One book and one author can have enormous influence and engender demand in many countries—and the chance to bring out an important book for a local domestic market that was originally written in a different language and published in another country can be an important market opportunity, one which publishers and translators will be working hard at during this bookfair.

In my prior career at a major science publisher the market was truly the entire world of scientific researchers and academics, most of whom are able to navigate in English (naturally there are also important scholarly materials published in German, French, Spanish and Mandarin, but English does have broad currency in science). On the legal side, we know that the laws of copyright and contracts are ultimately local and national, notwithstanding the intended normative effect of international intellectual property treaties. If we are dealing with authors, publishers and distributors in different countries, there are important legal questions about which law governs these relationships—and copyright enforcement brings even different questions (is an infringement in one country necessarily an infringement in another?). Collective licensing through the collecting or rights societies such as VG Wort in Germany, the CLA in the UK, and the CCC in the US, can also operate quite differently and with differing sets of rights and markets.

How can publishers navigate the differences in national laws while trying to manage an international business? What rights and permissions are they actually acquiring through contract and their negotiations, or through collective licensing arrangements, and what rights can they use or enforce in local markets, particularly where author and publisher reside and rely on different countries and legal traditions? This article suggests some general approaches and considerations, but does not and cannot substitute for specialized legal advice for either authors or publishers in particular markets.

Copyright laws governing the scope of protection for authors such as the minimum duration of rights are largely normalized in the international treaties, including the Berne Treaty, the WIPO Copyright Treaty of 1996, and the TRIPS standards. However these treaties are silent about the nature of the contractual rights that can be negotiated between authors and publishers, and ultimately with distributors and other agents—and there are no international contract treaties (although some treaties touch on contractual issues in passing and the EU does have some EU-wide contract regulations). Authors of literary works are clearly protected under copyright and authors’ rights regimes, whereas there are significant national variations concerning protections for performers and film creators (neighboring rights principles are sometimes used instead of copyright).

Authors in certain countries such as Germany and France often cannot fully transfer copyright interests to publishers, although they often can provide exclusive commercial licenses. Some author’s rights countries even require certain contractual provisions or elements be included in publishing contracts. As Lindner and Nordemann note in “Cross-Border Copyright Licensing” (published by Elgar in 2018 and edited by Scollo Lavizzari and Viljoen), some of these copyright contract rules “have … been adopted with a view to protecting the author as a party with a weaker bargaining position…”(Section 2.17). Such laws also often require significant detail and specification of rights granted, and do not permit sweeping statements that we may be more used to in the US/UK copyright tradition such as “all rights in all languages and media throughout the world”. It might be difficult, for example, for a German author to transfer a new and unknown usage right. The ability to bring a copyright infringement case may in some countries require some degree of approval or participation by authors even if enforcement rights have been assigned to publishers (see the discussion in footnote 104 in the Lindner/Nordemann chapter).

The recent 2019 European copyright directive, the Digital Single Market, is meant (in part) to reinforce the importance and centrality of the author, journalist and artist when dealing with technology platforms, and some may view this as widening the gap between Europe and more market-oriented IP regimes such as the US, where the technology-focused industries are more influential in business media coverage and the stock markets, and thus often have an outsized impact in government interactions and advocacy. The DSM also places EU-wide requirements for greater transparency in author-publisher contracts, particularly around issues such as royalty statements and remuneration from collective license arrangements. These very specific requirements may not represent a significant departure for German publishers, as to some extent these obligations are based on previous German copyright-contract laws, but will require review and possible contract adjustments by other publishers.

Freedom of contract principles, which predominate in market-oriented countries, suggest that authors and publishers are generally free to negotiate and to waive terms and conditions, limited only by the limits of imagination. The laws of certain author’s rights countries however do require certain provisions and note that some rights cannot be waived. Contract parties are also generally free to agree to adopt the laws of a particular country to govern the interpretation of their contract (“governing law” clauses), and there are often provisions utilized by courts in determining governing law when this is not explicitly chosen in a particular contract. Such “default” governing law provisions often look to the location of the parties, the country in which the transfer or contract is negotiated or effective, or the country in which the underlying “performance” of the contract. In an author-publisher contract, however, regardless of where the publisher is located, a significant amount of performance on the part of the author will be conducted in the country where the author is located. This is made more complicated of course when a work has multiple authors in multiple countries.

Given this legal diversity, how can publishers organize their contract negotiations and considerations of local legal variations?  Certainly one approach can be to simply insist that the law of the country where the publisher is located must govern the publishing contract, in part on the theory that the author (if that author is located in a different country) is knowingly reaching out to a publisher in a different legal environment, and in part on the theory that, characteristically, the publisher is engaging in almost all of the “post-creation” activities particularly around distribution, and therefore understandably relies on their own local laws concerning these core commercial issues. If challenged in a court case, however, a court in a country with strong protective traditions around author’s right issues may not agree that local laws may be discounted completely. Another approach might be to accept that governing law will always reside with the author, which will require some significant business flexibility if for example further distribution rights or royalty provisions are inconsistent.

In my view, distinguishing between the differing stages of the work on a book could be helpful in looking at the applicable law issue. Putting aside the work-for-hire contractor scenario where a writer has been hired to create a specific section of an overall book, the creative aspects for most fiction and many non-fiction works in trade publishing are initiated by an author who is resident in a particular country, and often well before that author has considered whether they might negotiate a contract with a publisher in another country with a very different legal tradition. The author will be relying on their local tradition in thinking about the rights they have in their work and how those rights can be negotiated, often bolstered by advice and guidance from local authors groups and organizations, including collective organizations. It seems reasonable to me that in such circumstances, local copyright laws regarding core authorship questions (what qualifies as authorship, the inherent rights and duration of those rights) are or should be recognized as broadly applicable.

It seems to me, however, that when that author (or perhaps an agent on their behalf) has decided to negotiate with a publisher in a different country with a different legal tradition, they can be viewed as entering into a transaction that likely will be viewed under the relevant legal conditions of the publisher, including such matters as distribution, sub-licensing and enforcement. Therefore I’d suggest we look at applicable law issues in a “bifurcated” fashion, and consider that any adjustments required for full distribution or enforcement in a given country be understood as enabling an adjustment in the consideration of applicable laws.

This is a simplistic approach, and there are difficult nuances with respect to the rights being transferred or licensed to a publisher—after all an author may say that the author cannot transfer rights that they do not have or that cannot be transferred by contract.  Nonetheless I think it would be fair to assume that in an international negotiation the parties would want to give each other the benefit of the bargain, and that an author would want the publisher to have a strong position in the distribution and marketing of the work. This would suggest that the law of the country in which the publisher resides should broadly govern questions about distribution. Perhaps this could be understood as a transfer of rights or an exclusive license to the maximum extent permissible under any contrary governing law, with the burden of interpretation and default principles switching to the publisher’s venue after the execution of the underlying author-publisher contract.

This approach is not as radical as it might appear at first glance—in the absence of explicit governing law provisions, a court would have to provide a substitute legal framework, and would likely look to those questions noted above regarding performance of the contract—in which event the question about whether the dispute is around authorship or around distribution might rightfully be regarded as “performance”.

Whether this bifurcated approach is used or not by publishers, it is critical for publishers to review and consider which venues and laws would be relevant for their publishing contracts, which would be relevant for their authors, what would make sense for their down-stream licensees, and what possible conflicts or paths of divergence might exist—ultimately an assessment of the uncertainty and risk. It might very well be that there could be substantive differences which have only a modest business impact—so if a royalty statement has to be re-designed to reflect clearer accounting of collective licensing revenue, for example, perhaps that could be done in the context of a refresh of the entire royalty system, and done in a way that would not require costly changes. There are other possibilities as well, for example greater harmonization through treaties or treaty amendments, where a broad spectrum of stakeholder views could be adequately taken into consideration.