Publishing as Embodiment of Licensing: Barriers to Efficient Licensing, Part 3
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).
If you’ve been following this series, you know that licensing is—and has long been—the very embodiment of publishing. In this final installment, I’ll discuss complexities that can impede the smooth functioning of using licenses to manage the acquisition and distribution of content.
The simplest version of the rights chain—in which the creator licenses a well-defined subset of rights to an easily identifiable publisher, and the publisher manages those rights through further licensing—is to some degree aspirational rather than realistic. Although that circumstance does often exist, it is also not uncommon for a potential user to find it difficult or even impossible to identify the entity that controls the rights it wants to license.
Consolidation in the publishing industry means that the original publisher may no longer exist, and its list of titles may have changed hands many times. Rights reversions can complicate the situation as well. Even if it is clear that rights to a particular work have reverted to the author, that author may be difficult to locate, or the rights may have passed to heirs or subsequent publishers under new agreements. Orphan works—works for which the owner cannot be located despite diligent efforts to do so—are a significant problem. Difficulties in locating rightsholders have been partially addressed, but not eliminated, by the widespread availability of online search capabilities.
Even if the appropriate rightsholder can be located, a quick response is by no means guaranteed. Individuals may not have the knowledge or tools to deal with rights inquiries or may need time to refer the inquiry to a third-party rights manager. Permissions fees are not a critical revenue stream for certain types of publishers and have historically not been accorded priority.
Given the relatively low per-transaction fees associated with many types of permissions, it can easily cost more for a publisher to grant a particular permission than it receives in compensation. These issues are compounded when the publisher has to deal with a large volume of permissions requests. Increasingly, publishers have looked to forms of collective management, administered by third parties such as Copyright Clearance Center, to build the tools to handle the volume of requests efficiently and responsively. The availability of those tools is critical—if users cannot get permission to use copyrighted materials easily, immediately, and relatively inexpensively, the incentives to ignore copyright and proceed without permission are greatly increased.
Fair use is the general exception set out in U.S. law that allows the non-permissioned use of copyrighted materials for certain purposes. It functions as a “safety valve” in copyright, and its availability is important in that it provides a means of harmonizing the monopoly aspects that are inherent in the exclusive rights under copyright with First Amendment considerations. Since fair use describes the process by which a determination is to be made rather than specifically describing a particular activity, it can be applied to changing circumstances and in situations involving new technologies. However, that advantage can also create complexity in a licensing context. Outcomes under a fair use analysis are not always clear. Users who are concerned about infringement may err on the side of caution and seek licenses in circumstances that would be likely to fall within fair use. But more commonly, users are inclined to take a broader view of fair use than is justified by the statute and case law. Those users are sometimes disappointed when a court disagrees with their understanding of its application. But given the inherent difficulty in enforcing copyright and in seeking redress for infringement, some prefer to risk relying on an aggressive interpretation of the law, particularly if procuring a license is a complex, expensive, or time-consuming process.
Historically, written works reached their readers through the sale of physical copies. Licenses were, for that reason, primarily a tool that authors and publishers used to define their relationships with each other. Copyright law, not license terms, defined the rights and privileges of most readers. Digital distribution has dramatically changed that paradigm: Licenses now increasingly define the relationships between authors and publishers on the one hand and their customers on the other. Licensing has assumed critical importance to the publishing industry specifically and to the dissemination of content generally.