Copyright from the lens of a lawyer (and poet)

Elsevier’s General Counsel writes about copyright – and why he believes it’s fundamental to creativity and innovation

<em>"In college, I was sure I would have a career as a poet."</em> — Mark Seeley, SVP and General Counsel for Elsevier  It is often said that copyright law is about a balance of interests and communities, creators and users, and ultimately society as a whole. My relationship with copyright law is in itself a balance of interests – I approach it from a legal perspective as General Counsel for Elsevier — and from a creative one, drawing on my love for poetry and music (in college, I was sure I would have a career as a poet). This combination of perspectives has led me, I believe, to a deeper understanding of the importance and limitations of copyright law – something I feel privileged to work in and advocate for.

I’ve served as the General Counsel for Elsevier since October 1995; during that time I’ve seen the business enter the digital marketplace fully, expand geographically and add new businesses focusing on healthcare and analytics. The STM journal publishing sector is constantly adjusting to find the right balance between researcher needs and the journal business model, as refracted through copyright. Authors are looking for visibility and want to share their results quickly with their colleagues and others in their institutions or communities.

Most journals have a long tradition of supporting pre-print posting and enabling “scholarly sharing” by authors. Even critics of publishers’ copyright policies have acknowledged that with sharing “green open access” principles so common among journals, authors and their institutions can work to improve the transparency of research output. Recently the issue of posting articles on social media sites by authors has also been addressed by an STM association working group, with a draft set of principles Elsevier supports. These policies and principles represent the balance needed on a sector-by-sector basis, with consideration for differing perspectives and priorities. In fact, last week Elsevier released its own updated sharing policies.

The case for copyright: a cue from my creative history

Mark Fischer (most recently partner at Duane Morris LLP), who passed away very sadly in February of this year, was a major beacon for the Boston copyright bar and the creative community. In a 2014 review of Peter Baldwin’s book on copyright law “wars,” he explained the fundamental benefit of our copyright system:

I submit that society benefits when the best creative spirits can be full-time creators and not part-timers doing whatever else (other than writing, composing, painting, etc.) they have to do to pay the rent.

I believe that copyright is fundamental to creativity and innovation because without it the mechanisms for funding and financial support for authors and publishing become overly dependent on societal largesse. The alternatives to a copyright-based market for published works and other creative works are based on near-medieval concepts of patronage, government subsidy, or perhaps falling back on the local “tip jar,” as the Americana singer and songwriter Gillian Welch put it in her 2001 song “Everything is Free” (still the best song I know of that addresses copyright infringement in the Internet age):

I can get a tip jar
Gas up the car
Try to make a little change
Down at the bar

Or I can get a straight job
I've done it before
Never minded working hard
It's who I'm working for ...

Loud advocates for “copyright reform” suggest that the copyright industries have too much power and control over copyright works, and that if users were freer to use these works in new and creative ways then society would benefit through new creative and scientific works. My comparatively contrarian view is that this ignores the enormous creative efforts and societal benefits that arise from authoring and producing the original creative work in the first place: works that identify and enable key scientific discoveries, medical treatments, profound insights, and emotionally powerful narratives and musical experiences.

One of my first editorial meetings for the Walnut Hills High School (Cincinnati, Ohio) literary magazine <em>Gleam</em> (I’m the fellow on the far right).As a university student, my primary interests were literature and music. I have one publication to my name, in the 1972 issue of Tampa Review (somewhat embarrassing to read now, but then I was still a teenager officially). But I was always involved in publishing somehow — I was on the editorial board of the Walnut Hills High School literary magazine Gleam, and I was features editor for the WHHS Chatterbox, one of the better (then and now) weekly high school newspapers in the country.

I also started two literary magazines with a good friend of mine, once during high school (which we sold in local bookstores in Cincinnati) and once at Thomas Jefferson College, then part of Grand Valley State in western Michigan. To me, TJC was as close as you could come in the 1970s to something like the experience of Black Mountain College in North Carolina, which was also an experimental student-oriented college with a strong focus on the arts and particularly on cross-discipline experiments — poets working with musicians and biologists, building windmills and then organizing music festivals. It was a creative touchpoint that enabled me to be in contact with many poets and writers such as Clayton Eshleman, Fee Dawson, Judith Minty, and even ridiculously famous people like Robert Bly and Allen Ginsberg.

Many of the creative people I met – and most of the creative people I admire – were and are motivated by their love of their art and their sense of continuity of the art form, and they accept that their work might not be the kind of potboiler that becomes a best seller and enables them to buy that home in Malibu they’ve been hoping for. In this regard, they are like most scientists, researchers and medical practitioners and teachers I have met over the years through Elsevier—they are motivated primarily by their interests and passions. Of course creators and scientists want visibility — for their peers to know of their accomplishments, initiatives and discoveries – and if that could turn into comfortable faculty appointments, speaking engagements and book sales, they would be quite pleased. At the very least, they’d like to see some benefit and support from their work. Copyright law is a way of helping make that happen.

From poetry to practicing law: the segue to a new perspective on copyright

I fell into working in the law at a firm in San Francisco (Orrick Herrington & Sutcliffe) as a legal assistant and manager in the 1980s. Working with attorneys in litigation and intellectual property, I found I really enjoyed the legal environment and the law. When my New Englander wife and I decided to move to Massachusetts in the late 1980s, I worked in-house while I was attending law school at night at Suffolk University Law School. I was enormously lucky first to work at Reed, later Reed Elsevier (now RELX), which gave me an introduction to modern business and professional publishing, and for Henry Horbaczewski – then the General Counsel for Reed’s US business and a fierce proponent of copyright law and intellectual property protection.

At Suffolk I fell in love with the intricacies of copyright law, the principles, the exceptions and the doctrines, through the copyright law class taught by Benjamin Kaplan. Kaplan was quietly famous for his 1967 book An unhurried view of copyright – based on a series of lectures delivered in the mid-1960s that contemplated an international network of electronic information, and wondered what role copyright would play in such a context, which was later republished by LexisNexis (our sister company) in 2008. He was also a significant influence at the law schools he taught, as noted in his Wikipedia entry.

Reed Elsevier’s post-law school offer to work in publishing and to combine my interests in copyright law and general intellectual property matters, and to contribute to the emerging digital information infrastructure, was a great opportunity. Moving to Amsterdam to take the Elsevier position several years later, and to immerse myself in science publishing, was another great career decision (we lived in the Netherlands for a wonderful three years). I now lead a team of 17 lawyers, based in seven countries around the world; copyright law and the law of contracts and licensing are essential in our business, and many of my team are true experts in these areas.

Perspective on copyright law: a question of “balance”

Copyright law differs from other forms of intellectual property in that, although the duration of the right has lengthened over time, it has always been understood to have many exceptions and limitations:

  1. There is the “idea-expression” dichotomy — that copyright protects expression but not the fundamental ideas expressed in a copyright work — so in the scientific context the community is free to talk about and comment on a discovery identified in a scientific paper, provided they can do that in a way that doesn’t simply involve copying the entirety of the underlying paper.
  2. There has almost always been an understanding that the use of quotations from copyright works for non-commercial purposes, particularly criticism, commentary, research and education, is “fair” and even complementary use.
  3. There are often broader exceptions for teaching and research, but usually juxtaposed with another set of principles on market impact (the Berne 3-step test for exceptions and limitations) — the question of whether the use, even if for a socially beneficial purpose such as education, winds up having a significant substitutional impact and reduces the potential market for the underlying original work.

These kinds of factors are elements of copyright legal doctrine in many countries, but are strikingly set out in the “four factors” test under US copyright law (section 107 of the copyright act).

The question of the appropriateness of copyright, or “authors’ rights,” in the academic field, particularly with respect to research journal articles, is sometimes controversial. In a way quite similar to poets, avant-garde literary writers and, for that matter, legal scholars, research academics do not rely directly on income from their journal article publishing; publication in the most relevant journal for their field is important for the visibility of their work and recognition in their field. This visibility and recognition has an impact on academic appointments and tenure, research funding and the like. There is sometimes a simplistic “repugnance” about the core publishing concept that journal publishers request rights from authors and in return sell or license those rights to journal subscribers or article purchasers—but this is of course the market in which copyright operates.

Journals and publishers invest in editing, review and quality systems; they generate visibility and recognition through online platforms, indexing and search technology, and by purchasing licensing rights to other platforms and services. These investments also underwrite the contributions that publishing staff and members of my legal team have made in the area of journal publishing ethics, and through their work on issues like freedom of expression in regards to government trade sanctions laws. Whatever the business model, revenues and profits are important to support these efforts.

Is copyright law broken and out of balance? Some proposing copyright reform in Washington, Brussels and around the world suggest that this is the case. Copyright law revision needs careful discussion, thoughtful analysis, and meaningful dialogue, and thus far there has been more positioning and posturing.

Some of the criticism of the involvement of commercial publishing and academic research is simply prejudice, in my view; some members of the academic community find capitalism to be crass. Other academics base their criticism on idealism. They posit that since the Internet provides such an amazing vehicle for individuals to communicate directly with others and to participate in online communities and networks, enabling them to act more directly without the mediation of a journal or music publisher, then the formal structures of publishing and copyright management are irrelevant. I accept that some criticism of existing copyright law is useful: journals and publishers have to demonstrate their value every day, and it is valuable to reflect on what we can do to help authors and their research stand out, as well as what we can do to support quality in scholarly communication.


Elsevier Connect Contributor

Mark Seeley (@MarkLSeeley) is Elsevier's SVP and General Counsel and serves as chair of the Copyright and Legal Affairs Committee of the International Association of Scientific, Technical & Medical Publishers (STM). He is based in Waltham, Massachusetts.

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