Originally Published on June 21, 2021, law.com

Copyright law and content rights management have always evolved to accommodate changes in technology and in user needs. Users today have more access to more content in the online digital environment and can do much more with such content than ever before.

Collective rights management (usually conducted through collective management organizations, or CMOs) pools the availability of content to benefit both rightsholders (i.e., authors and publishers) and users, moving from obtaining permission to use one content resource from one author to virtually all content in different sectors, from music to film to text. In the publishing context, many CMOs offer expansive databases of research content and new methods of utilizing such content such as through text and data mining—the ability to search across multiple data sets using tools designed to normalize methods and terminology to identify key connections and insights.

Historical Changes

While the availability of “born digital” content that can be indexed and repurposed represents the latest technological changes for content and copyright law, this kind of experimentation is nothing new for authors, publishers or copyright law.

Copyright law developed in the 17th and 18th centuries as a recognition of the “natural rights” of authors themselves and the capability of taking charge of their works and wresting such control away from the existing central authorities. Authors and composers in the 19th century formed collective organizations and advocated for international copyright treaty protection as a way of ensuring that effective content markets could develop and be supported, without artificial competition from counterfeiters. In the 20th century, content producers and copyright law evolved to accommodate technological developments including recording, photography and photocopying.

Although there have always been points of friction in new technological adaptation, generally these changes have seen the expansion of content availability, awareness and visibility, and finally usage and consumption. Collective rights management have enabled these changes and expansion by reducing numerous individual transactions and negotiations to larger-scale blanket licenses.

The principal technological change in the last 20 years has been the expansion of the Internet from its scientific communication roots to the platform environment we have today, tied to how we consume digital content and how we communicate our experiences and perspectives. Copyright law and collective rights have kept pace with such changes, with the adoption of the “digital” WIPO Treaty of 1996 and its implementation in the US of the DMCA (Digital Millennium Copyright Act).

The Development of the Internet and Introduction of the DMCA

The 1997 Congressional testimony of Marybeth Peters (US Register of Copyright, 1994-2010) reflects the concern to provide both a protective environment for the lawful consumption of digital content and a well-regulated market for new Internet services. Register Peters described the protection for technical protection measures and the anti-circumvention requirements as “further[ing] the development of digital networks by making them a safe environment for copyrighted work to be disseminated and exploited.” The “safe harbor” of Section 512 reflects the concern raised by some Internet service providers (ISPs) that they might be liable, on a contributory or secondary liability theory, for the infringing acts of their users.

The “safe harbor” of Section 512 provides limited immunity in the absence of knowledge and with the responsible remediation of such act upon notice (our “notice and takedown” processes). This balancing of interests, providing clear online and digital rights on one hand and providing protection for responsible new Internet services on the other, was also reflected in the European Union’s E-Commerce directive of 2000 and the Information Society directive of 2001.

Questions have been raised over the past 10 years about how effective the new laws have been in balancing the content and technological interests, with many advocates indicating that the technologists have not always acted responsibly (see Neil Turkewitz’s 2020 “Internet Governance” article). The European Union adopted a new Digital Single Market directive in 2019 with extensive provisions around greater compliance and negotiation around the unauthorized use of copyright content on major technology platforms, which suggests that the European Parliament believed that the “balance” between technology and content has become unbalanced, and that rightsholders (particularly news media) need more support for their negotiations with platforms. Collective rights management, again, appears to be the answer here—as only major sector licenses can accommodate the scale of activity on the major platforms.

New Collective Licensing Approaches

Contemporary licenses from CMOs, such as Copyright Clearance Center, for example, offer a significant range of rights for content, from enterprise-wide re-use and sharing, to educational tools, to text-mining computational analysis. Such licenses provide clarity for users concerning these widespread and significant research uses, particularly for commercial users that need greater legal certainty about their anticipated needs.

The variety of these licenses—and the various needs they accommodate—are important in the context of “big data” and the interest of technology companies and researchers in accessing and using data from multiple, almost universal sources that allow works to be uploaded, downloaded or streamed. Collective blanket licensing structures are 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.

New technologies have always presented challenges for copyright law, from the printing press in the 15th century, to photography and photocopying in the 20th century, to the prolific use of the Internet. The use of copyrighted material is a complex issue, but also an extremely important one. Copyright is meaningless in the absence of a means to exercise those rights that is also reasonably useful to users. By enabling efficient licensing and guaranteeing remuneration for creative works, CMOs ensure that licenses meet both rightsholders’ and users’ needs and expectations.