Mark Twain said, when asked what the limits of copyright should be, “Well, I said, perpetuity, I thought it to last for ever.”
In this post, I want to take some time to consider the role of copyright in the digital era. It is also worth looking at the role of Copyright Clearance Center (CCC) and how its fortunes appear to be rising from the staid organization it was only a few years back. In August of this year, Alice Meadows, fellow chef, presented a fascinating interview with Roy Kaufman, Managing Director of New Ventures at CCC. CCC reported last week that it paid a record $188.7m to rights holders in fiscal 2013, up 5% from 2012. Clearly copyright remains a force in a digital age, one that CCC recognizes, and one that presents a fascinating glimpse at the potential future role of an intermediary such as CCC in stimulating creative efforts.
To really think this through, I spoke with CCC, and some of their thoughts on the future are presented here. I also looked at a fascinating report from the National Academies Press in May 2013, entitled Copyright in the Digital Era: Building Evidence for Policy. This work was prepared by Stephen A. Merrill and William J. Raduchel on behalf of the Board of Science, Technology, and Economic Policy. This report is used as a resource throughout this post.
First, we should understand the history of copyright, and in fact why would should think about copyright at all. I enjoy Jack Bernard’s (Associate General Counsel at the University of Michigan) way of asking us to consider the meaning of copyright:
What is the purpose of U.S. copyright law? The answers are below. Jack Bernard indicates that very few think of (C) as an answer.
A) Reward authors for their creative efforts
B) Provide an economic incentive to write & publish
C) Advance public learning
D) Provide legal remedies for infringement
In other words copyright laws are in place to encourage access, creativity, and expression of ideas – this is important for us to realize in a time when copyright is more likely to be referred in restrictive terms.
How was copyright law established deep in print publishing’s past? Once upon a time there was the printing press, Guttenberg’s innovation in the second half of the fifteenth century. It was not until 1710 that the English Parliament created copyright laws as we would recognize them today: the ability to grant exclusive rights to an author that are transferable for printing, reprinting, selling, etc. In the US of course, life was more complex, with variations across states, and it was only in 1790 that the US Government enacted the first Copyright Act – in fact this was one of the first acts of the United States Congress. The purpose of copyright is etched into the Constitution in Article 1. §Clause 8.,
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
As is the way with early legislative activities, that there was not much detail in these laws. It was up to courts over time to refine exactly what these laws meant to all the stakeholders involved.
As new technologies allowed for new means of authorship, the rapid expansion of publishing, the inclusion of new media such as photographs, music, and movies, so The United States Congress would again and again amend copyright laws, with a new act in 1976 covering reproduction, derivative works, distribution, performance and display. Further amendments have been made more recently to help us in a digital age, and to address the rights of copyright owners to see reward from digital streaming, with protection from piracy over digital networks.
So let’s look at some of the issues we face in considering copyright in a digital age. Technology itself is now embedded into copyright, allowing copyright holders to use innovative tools to prevent piracy, or to select the type of user who may be granted access. But where lays the balance? On the one hand, copyright law enshrines the concept of fair use. On the other hand, how much content may be shared before copyright is infringed? This is where there is much blurring of lines, especially when looking at how digital library holdings are utilized and e-coursepacks are used.
And then, what about open access and copyright law? In some ways, this represents the true red herring in OA discussions. It does not matter who has the copyright, copyright is still a force and all aspects of fair use and the ability to stimulate scholarship remain. It boils down to a business decision by the author, funder, institution and publisher.
Where does CCC come into the picture? For the answer to this question I turn to Roy Kaufman. His view is that the future for CCC can be divined by looking at how CCC was founded back in 1978. This was the period when Congress was going through its lengthy deliberations over what should be in the new copyright act. In the midst of all this comes a new disruptive technology, the photocopier. How would this new technology alter handling copyright issues? And so CCC was born, at the suggestion of Congress, as a central agency for handling copyright requests among content owners and users.
The future for CCC takes them a step further with this philosophy. In a digital age, we see more technology, more ways to atomize content, and more content that may be licensed. The role of an intermediary such as CCC is further cemented in this more complex environment that ironically leads all stakeholders to crave more simplicity in handling licenses. In addition to this, as Roy says, “People will comply with copyright if it is easy to do so, and they are less likely to comply if it is hard.” So, CCC sees its role as enabling the use of copyright. Another view of CCC’s role here is to look at its evolution into developing workflow tools. Dow Jones kicked this off, requesting a product that allowed for external customers to re-use its information content. Essentially this is a workflow tool, which extended into the development of RightsLink as a tool for managing color charges, page charges, and now article processing charges (APCs).
It seems to me as if CCC is heading towards being a data rich organization, like Thomson-Reuters, that could provide authority and metrics around the licenses held and shared – a digital repository that in principle could serve as a measure of an author’s impact on the world. In talking to Roy, while my musings are clearly my own, he does indicate how CCC is working in a Creative Commons environment. While no signed license is required for a CC-BY OA publication, it may be that a corporation who wants to share a large number of copies of an article would rather have a paper trail that authenticates the license. So, while not required, CCC has an option for a corporation requesting rights to an article to request the license itself. This is data, and this data is accumulating in the CCC repository – think how valuable this could be.
In summary, copyright is indelible to the creation and publication of content. There is real value in being able to go to one place to definitively determine the copyright status of something you want to reuse. What we will see going forward is the enabling of tools around licensing data, and simplified workflows.
Watch this space.