I was pleased to join in the amicus brief supporting the Oracle position on functionality analysis for software copyrightability and fair use, concerning the copying by Google of Oracle’s Java APIs...
Rubbing shoulders at the Frankfurt Book Fair in October reminded me how international the publishing business is. German publishers and authors pass by Korean publishers in the hallways, and potential distributors and translators are looking for local deals for famous international authors. One thing I had to manage as a former General Counsel to an international publisher was how to negotiate international deals and contracts across national boundaries– what laws of which countries should be understood as applying to particular contracts and transactions? In the post you can find HERE I suggest that authors and publishers might agree to bifurcate governing law as between core authorship principles and distribution and enforcement issues.
I also joined a CCC panel at the October Frankfurt Book Fair to discuss the Digital Single Market directive on European copyright matters. As is often the case, the panelists had to cover a variety of issues in 30 minutes, which is always tough—but I thought the slide a helpful summary (new exceptions, fair play re news publishers and online platforms, collective management organization revenues and contract law. I discussed the contrast between the DSM “fair play” approach and the current US “safe harbor” approaches.
I participated in a panel at the Frankfurt Book Fair to discuss Open Access and Transformative Agreements, in the context of the Plan S project and Science Europe’s cOAlition S. Plan S involves a significant acceleration in the move from subscription-based publishing towards OA (including Gold OA, where authors or their funders pay for article publishing charges APCs). My focus on the panel was to discuss the fundamental elements that make up a Plan S-style Transformative Agreement including a plan to transition to OA, OA-style copyright retention by authors, and moves to improve transparency and standards.
By Mark Seeley | January 2021
Twenty-five (close to 26) years ago, the publisher plaintiffs in the Texaco case (https://openjurist.org/60/f3d/913) settled with Texaco over unauthorized copying of science journal articles for commercial purposes. The case was led by the American Geophysical Union, the earth and space science society and publisher of a number of leading journals, supported by an extensive list of other scholarly publishers and the CCC (Copyright Clearance Center, where I am a Board member). The decision and settlement were important events in establishing that businesses cannot assume a “fair use” defense, even if they are engaged in some form of research, and led to the establishment and success of the CCC in offering licensing options for corporations (CCC has other licensing and service options as well).
The CCC asked a number of copyright experts and advocates to write essays on the broader issues and implications as part of the 25th anniversary commemoration, and I was happy to contribute an essay for the CCC ebook along with my colleagues Lois Wasoff (former GC at Houghton Mifflin and consultant for a number of organizations including CrossRef) and Bruce Rich (former partner at Weil Gotschal, where he began representing the CCC in 1980). You can find the ebook and an introduction here http://www.copyright.com/blog/creating-solutions-together-lessons-to-inform-the-future-of-collective-licensing/.
Lois’s essay looks at the connection of publishing and licensing, describing the stream of rights behind publishing and readers (including online readers), while Bruce looked at the history of the formation of the CCC and the link to the 1976 Copyright Act, and the importance of the Texaco decision in supporting publisher licensing activities. As a history buff, I was happy to contribute an essay on the history of collective licensing, which I argue is inextricably connected to the evolution of copyright law as an individual or natural/human right. I started with the 16th-century Statute of Anne, which identified authors themselves as the primary rightsholder of their own works, a change from printing monopoly and guild controls from church or government authorities. I note that “[r]ights, however, are but empty promises unless they can be exercised…” to explain how collective licensing provides an effective market framework for individual authors and other creators. I also discussed the CONTU debates in the US (1970’s but with early discussions starting more than a decade before) about technology, use, and licensing, noting that licensing solutions can achieve broad solutions for the society which ensures that users do not become infringers. Licensing organizations like the CCC operate much in the background, connecting individual rightsholders with individual readers/users. There are strong similarities with licensing rights behind music and other entertainment streaming services.
You can find my essay here.
ABOUT THE AUTHOR
MARK SEELEY (@marklseeley) consults on science publishing and legal issues through the SciPubLaw LLC entity, and speaks and comments regularly on publishing, licensing, and copyright issues on the site including recently on international publishing contracts, the EU Digital Single Market copyright directive, and Open Access and Transformative Agreements. Mark retired in December 2017 from his position as Senior Vice President & General Counsel for the science publisher and information analytics provider Elsevier. Elsevier is the leading publisher and information provider in science and health and is part of the RELX Group (which also includes LexisNexis). Mark also served on the Copyright Committees of both the International STM Association (from 2004-2016 as chair) and the Association of American Publishers.