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.

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

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.

SIDEBAR ON SCIENTIFIC/SCHOLARLY PUBLISHING

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.