Ryan v. CARL

[David Davis <ddavis@copyright.com>]

CCC has been asked about the Ryan v. CARL case. 

Judge Fern Smith's decision in this case does not necessarily affect CCC
in a substantial way, both because of the particular facts of the case and
because of CCC's own ways of doing business.  In fact, the interpretation
of the Copyright Act upon which Judge Smith granted summary judgment to
the plaintiff authors does not seem controversial: she said, as the
statute itself seems to say, that authors do indeed retain all rights to
their contributions to collective works that they have not conveyed to
publishers or others.

But the case does not seem to affect CCC's business substantially in any
event.  First, it appears that the particular facts of CARL's practices
seriously colored the Judge's view of the case.  As a result, it would
appear that the Judge was most focused on getting CARL to stop doing what
it was doing in the way of granting itself permissions and then contacting
the rightsholders afterward and offering them royalties set by CARL
itself.  But the Judge still recognized that, in any event, the publishers
may indeed have the necessary rights to grant permissions without
additional author consent, and she explicitly gave CARL the right to
continue to seek to prove that.  This was only a very preliminary decision
in the lawsuit.

Second, regardless of whether CARL is able to prove appropriate conveyance
of rights in the particular instances of these freelance writers' works,
that would be far less of an issue in any case involving the large
majority of works for which CCC issues permissions and/or licenses to
businesses and document delivery services.  Most of the works which are
most commonly sought for permissions from these customers (or used under
licenses by these customers) fall into a few categories.  The largest one
is what are called STM works -- science, technical and medical books and
journals.  It is a fact that the most common practice in the area of STM
works -- as well as in the areas of professional journals, many reference
books, many of the more prominent newspapers and many business newsletters
-- is for the publisher either (i) to receive an outright grant of the
copyright, in writing, from the author(s), or (ii) to itself be the author
under the legal doctrine of work-made-for-hire (that is, when the writer
is an actual employee of the publisher, then the law considers the
publisher and not the writer to be the legal "author" of the work).

Of course, there are many other works where the outright grant of
copyright by author to publisher is less common.  (For example, in the
areas of fiction and of freelance contributions to the popular and trade
press, authors seem to retain their rights more frequently, but these
works tend not to be among the more heavily photocopied works in CCC's
various programs.)  In the case of these works, CCC is actively working to
expand its representation of authors as the sole or principal holder of
the copyright rights.  CCC has long represented thousands of authors
either directly or through their representatives.  We have been expanding
that representation daily and are working to open new channels to improve
our services to authors.

For example, (i) We have been working with prominent associations of
authors, photographers and graphic artists to publicize CCC's availability
to them, including the National Writers Union and the American Society of
Media Photographers, (ii) We have dedicated staff resources, under a
Manager of Author Relations [Kristen Giordano, kgiordano@copyright.com],
to reorganize and improve our services to authors and other creators, and
(iii) We have recently built extensive capability into our "CCC Online"
Website to ease the registration process for authors in CCC's various
programs -- http://www.copyright.com .  No matter what the outcome of the
Ryan v. CARL case, we expect to be well positioned to continue to provide
services to both copyright owners and users, including document delivery
services, as these relationships evolve.

Dave Davis
Copyright Clearance Center   http://www.copyright.com/
ddavis@copyright.com       Voice: (978) 750-4283 x-2217