A Reprographics Licensing Scenario

By Bruce Lehman, Esq.

There is an organization called the Copyright Clearance Center (CCC), which was formed to deal with the problem of large scale photocopying of works. A good example of this is the Mayo Clinic. The Mayo Clinic is a very large institution. And I am sure there are photocopying machines here turning out copies of articles in medical journals by the ton. I would guess that the Mayo Clinic has a license from the CCC that gives it the legal right to photocopy those articles. Publishers, which are members of CCC have authorized the CCC to license the Mayo Clinic. So the CCC now is receiving about 80 million dollars a year in photocopying royalty revenue, which is redistributed to their publisher members.

These photocopying licenses probably deal disproportionately with scientific and technical journals. That means medical journals contain a lot of your stuff. Have any of you ever seen a check from CCC? Where is your piece of this $80 million bucks?

CCC is giving photocopying licenses. But it and some other groups are now beginning to develop some mechanism for granting electronic reprint licenses. I think that it is probable that photocopying will kind of disappear in the next few years. As everything is digitized and everything is on hard drive or floppy disks, PowerPoint, etc, you will just simply reprint from the electronic media. CCC is developing those reprint licenses.

There is nothing untoward about this. You know, if you are the Mayo Clinic, or Mobil Oil Corporation or AT&T, you are photocopying or reprinting all kinds of articles. You want to do it in a lawful manner. That is why companies pay licensing fees to CCC. When you pay CCC you want to be covered. You want an insurance policy.

What the Mayo Clinic gets from the CCC is a blanket license. They pay a certain amount of money to CCC, which then takes that money and distributes it to publisher rights holders on the basis of various methods of tracking use; and to give you an idea of the potential volume here – $80 million for photocopying, believe me, the CCC has a lot of room to get more business. It should be licensing five times that amount, probably.

I would guess that every single one of you is aware of a situation in which an institution has photocopied a text using your work, or has electronically reprinted it. Your rights have not been cleared. I don’t think it is because anybody wants to be mean. There is no mechanism to clear the rights.

Clearing rights would be done just like ASCAP and BMI, on a nonexclusive basis. You would be able to make whatever deal you wanted to do with your work. But for certain purposes, particularly these blanket licenses, you would just let this licensing arm do it for you. It might be an automated process. But where you are dealing with an art director who has a consistent source of business for you, you want to make sure that you control those transactions very carefully. You don’t want any blanket license there.

Excerpted from a speech given July 2000 to the Association of Medical Illustrators at the Mayo Clinic, Rochester Minnesota. Bruce Lehman is a former Assistant Secretary of Commerce and U.S. Commissioner of Patents and Trademarks. He was chief legal advisor to Congress in the drafting of the 1976 Copyright Act.

 Copyright 2000 Bruce Lehman