Publishing as Embodiment of Licensing: Exploring the Role of Copyright, Part 1
by Lois Wasoff
This article is an edited excerpt from a new ebook offered by Copyright Clearance Center, Creating Solutions Together: Lessons to Inform the Future of Collective Licensing (copyright.com/wp-content/uploads/2021/01/CCC_CreatingSolutionsTogether_Ebook_2020.pdf).
To understand the importance of licensing to publishing, let’s begin by looking backward from the moment that a work gets into the hands or digital devices of the reader, or user. From the reader/user’s perspective, the process seems simple: Walk into a bookstore, order online, initiate a download, make a payment, or log in with a subscription, and the reader/user gets possession of or access to the content. But whether that content is available in print or digital form or both, as text or audio, in complete form or abridged, in English or any one of dozens of other languages, and how that content is paid for, even if the price is free, are the result of a series of decisions made by the creators and distributors of the content. Those decisions are embodied in a chain of rights transfers and permissions, all of which are made on the assumption that each entity in the chain is acting with appropriate authority. And the authority exercised by each link in that chain is based on the legal framework of copyright and defined by the terms of license agreements. “Publishing” and “licensing” are not separate concepts; publishing is a particular species of licensing, with its own increasingly varied industry practices that have evolved to meet the constantly changing needs and expectations of the reader/user.
Copyright is well-designed to facilitate this distribution channel. It begins with the simple premise that creators have certain exclusive rights to their work. Without that initial exclusivity, there is no foundation for everything that follows. Copyright protects the rights of authors of original works of authorship and of those to whom authors have licensed or assigned those rights. National laws define the particular rights that are included, but those laws are subject to some international norms created by treaties. So, although there is no such thing as an “international copyright,” it is still possible to make some general statements about what rights and works are covered by copyright.
Copyright protection applies to both published and unpublished works. Although publishers would seem, at first glance, to be concerned only with the first category, the second is of great concern as well. Published works often include quotations or images from other works. Even if those included elements were not previously published, they can be protected by a copyright owned by a third party, so their reuse in another work can have copyright implications.
Books, articles, photographs and other images, audiovisual works, and music in analog, digital, and any other format can be protected by copyright. There are, however, types of works and aspects of copyrighted works that are not protected by copyright. Most importantly, copyright protects the particular expression of an idea but not the underlying idea itself. Facts and data are not protected by copyright, although the particular presentation of those facts and data (i.e., a journal article reporting on the results of a study) can and typically will be protected.
Copyright has a specified duration, tied in most instances to the life of the author plus a period of years (70 in the U.S. and the U.K., 50 in some other countries) or in some circumstances from the date of publication (95 years in both the U.S. and the U.K.). Works for which the term of copyright has expired are in the public domain and may be freely used by anyone.
Copyrights are composed of a set of exclusive rights that are then subject to certain exceptions and limitations. The exclusive rights include the right to control the copying and distribution of the copyrighted work, the right to authorize the creation of works derived or adapted from the original work (such as creating a screenplay based on a novel or undertaking a French translation of a work originally published in English), and the right to publicly perform or display the work. The individual rights covered by copyright are a “bundle of rights” that can be licensed separately. So, for example, the copyright owner may license a publisher to distribute copies of a work in print and digital form but may retain certain rights individually (such as when a professor retains the right to post a copy of an article on their personal website or in an institutional repository). An author may divide the granted rights geographically, permitting a book publisher to publish a novel only in the U.S. and licensing another publisher to publish the work in the U.K., and/or may permit the publisher to publish the text of the work but retain the right to separately license adaptations or derivative works. Exceptions vary from country to country.
In the second installment of this three-part series, I’ll expand on this idea that publishing and licensing are not separate concepts, touching on the conversation around the role of publishers and their various audiences.