Legal issues in “Controlled Digital Lending”

The copying and distribution of copyrighted content by libraries present complex legal issues, and although there are existing copyright law exceptions for such library activities (primarily in Section 108 of the US Copyright Law), those exceptions have not formally been amended for digital and online uses. The position statement and white paper on controlled digital lending (CDL) published in September 2018 by Kyle Courtney (Harvard) and David Hansen (Duke) is endorsed by a number of libraries, copyright academics, and other organizations such as the Internet Archive, but should be understood to be primarily an advocacy position, relying principally on a “fair use” argument and some risk assessment. While in the past publishers and libraries have worked together on legislative solutions including a working group on Section 108 in the mid-2000’s, and on a number of pilot e-book lending projects in 2013 and 2014, there was no such “bipartisan” engagement in developing the CDL proposal, and publishers (the AAP) and authors (the Authors Guild) have noted their opposition and disagreement with the CDL position. In this presentation I reviewed the legal issues and discussed alternatives and concerns.

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Texaco decision anniversary and licensing 

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.
Mark Seeley

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Mark Seeley

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.

Some recent posts from mark include his thoughts on the Frankfurt Book Fair in 2019 and OA and Transformative Agreements