Two letters landed on my desk a few weeks ago, both from the Copyright Clearance Center. I have written before about concerns over what we are actually paying for when we pay permission fees to CCC, and my experience with these two letters deepened that concern.
The first letter asked us to give permission for another university to use in class a newsletter from the 1970s that is on our digital collections web site as part of the holdings of the Sallie Bingham Center for Women’s History. We had to deny the request because we do not hold the rights in this particular newsletter; we have digitized and displayed it based on a belief that doing so is fair use. In any case, the original author cannot be located since the work was pseudonymous. The result is that CCC, having actually failed to contact the rights holder, will now send the other university a denial of permission message. This disturbed me, and I decided to get in touch with the professor directly, suggesting that she link to our digital collection so her students would still be able to read the work. Unfortunately, the permission mechanism at CCC is an either / or switch, which cannot accommodate all of the nuances of copyright in higher education.
The second letter started a much more complicate chase. It informed us that someone at Duke was entitled to a royalty check, but that the original check had gone uncashed for 6 months. The letter offered to reissue a check (for a $25 fee that was nearly half the total amount) or gave us the option to refuse the payment altogether. Since the letter was sent to an impossible address – the name of one University entity but the box number for a different one – it was no surprise that the first check had been lost. When this second notice found its way to my desk, I decided to investigate.
What I found was very troubling. The folks at the CCC told me that the royalties had been collected from a South African university and they cited two titles. Unfortunately, neither title seems to be something for which anyone at Duke has the rights in the first place. One appeared to be a Harvard Business case study; the other was an article from a journal for which I was given an ISSN that is non-existent. None of the authors named by CCC appear to have any connection to Duke, and I cannot locate the specific article at all. When I asked for more details, two different representatives at CCC promised to call me back. That was three weeks ago, and I have heard nothing further.
My concern here is not to collect the $56 dollars being offered to us. Instead, I am wondering just what that South African university actually paid for. Obviously a substantial fee was collected and permission granted. Yet the CCC seems to have based that fee on a mistaken perception of who the rights holder is and that they were authorized by that rights holder to sell the permission.
We are often told that the application of fair use on campus can be quite narrow because there is an efficient mechanism for licensing reuse and rewarding authors. This experience reinforces my perception that that mechanism is not as efficient as is often claimed, and that a great deal of the money we spend on permissions never does get to the authors who are supposed to be rewarded. The fact is that locating rights holders is very difficult, and the Copyright Clearance Center is as much at the mercy of those difficulties as are the rest of us. One of the reasons for reinstating a renewal prevision for US authors into our copyright law would be to make locating the real holder of specific rights much easier. Until we have such a system in place, we must be wary of relying too heavily on any licensing organization to actually know who each rights holder is and how to get them the fees that are supposed to motivate them.
5 thoughts on “How efficient is our licensing system?”
We had a similar experience with CCC at Emory. We were sent a check with a somewhat cryptic list of materials for which we were being paid permissions fees. We were puzzled because to our knowledge, Emory has never entered into a relationship with CCC to license rights to content for which Emory is the copyright owner (although we use them extensively for paying permissions fees for the use of copyrighted works by others).
The explanation we received from CCC was that international reproduction rights organizations function differently and they were passing along to us fees collected by reproduction rights organizations in other countries. After extensive searching, we could only identify one instance where the payments being offered were for content copyrighted by Emory and those fees were passed along to that unit. The rest of the offered payment was returned to CCC (after consultation with our General Counsel). I don’t know what ultimately happened to those fees, but I suspect you are correct that they never found their way to the legitimate rights holder.
Perhaps someone at CCC can clarify for all of us.
I had my own CCC experience this week. A researcher asked to whom she should direct a request for permission to reproduce an article from 1959. I told her that as far as we could tell, the article was in the public domain. The CCC, however, listed the publisher that had acquired the the journal’s publisher as the rights holder. The journal was subsequently sold to 3 other successive publishers. The researcher contacted the last of these publishers, and that publisher stated that they had the rights in the article and gave her permission.
It would appear that there are at least two different publishers claiming the right to license a public domain article. How is the poor researcher supposed to know whether the rights that they in theory could have licensed from the CCC are actually held by the rightsholder listed in its files? How much of what the CCC does is copyfraud?
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