The Great Book Bank Robbery - Its All About Rights

Robert Dalton’s article in the New York Book Review, (see belows), prompts us to raise a number of questions with the proposed Google settlement.

‘Of the 7 million books that Google reportedly had digitized by November 2008, 1 million are works in the public domain; 1 million are in copyright and in print; and 5 million are in copyright but out of print.’

Question to ask and debate:

1. How many of the 5 million digital scans had permission granted, or due diligence on ownership performed on them?

2. If 5 out of seven books are potentially orphans (books whose rights ownership is not automatically clear) are Google going to scan first, sell second and maybe pay out third? Everyone else has to do sue diligence and even the potential Orphan Acts demand such actions. So are Google exempt from this?

We do not accept the often arrogant position taken that it’s for the good of all and they were merely poor little orphans. The opportunity to reverse this is fraught with litigation and bully boy approaches to what is not common property. If you leave your house vacant for a few weeks, does that entitle squatters to take it over?

3. Rights reversals have been a cornerstone of publishing but are these to now disappear by default and are those who argued for it to change now to get their way by means of jumping on the Google bandwagon? Tethering rights virtually unconditionally and in perpetuity is not in the spirit let alone the letter of the majority of contracts to date.

4. What is going to be the price of old books still in copyright but out of print. The proposal is complex based on several elements but how do you price today a book that was published in 1957 for $2? Some would suggest that the proposed algorithm is a farce. Some would argue that it could have only been dreamt up by someone who is either a geek or only understands front list pricing. If anyone thinks this works go down ask a few antiquarian book dealers how they price books and ask them what they think to the proposed model?

5. We all know that we have a problem with territorial rights within a global networked economy. We have witnessed the recent actions by Hachette with respect to US digital aggregators and etailers. The question now is where does Google Book Search start and finish and can it only operate in the US? What if a title is available in the US under HarperCollins and the UK under Hachette and Google have the US version?

6. If the rights owner is unknown then that revenue is held over but does Google still get paid for something that is clearly not theirs to sell?

Content For Rent?

When we lease a commercial property we enter into and contract. The contract recognises more than anything else, that life changes over time. So we have a lease terms and we have rent review clauses and importantly, we can also have break clauses. This form of review ensures that both parties remain focused and removes much of the risk that could be experienced by both parties as markets and businesses change.

Today, the majority of publishing contracts are one offs that in principle are appended to, but are negotiated once and thereafter remain 'as is' for life.

Today we are now one short step from books never being 'out of print' and the erosion of the rights reversal opportunity that has underpinned many rights contracts. Some publishers have long wanted this perpetual tethering of the work, others have respected the contracts and the spirit into which they were entered. Irrespective, some would say that Google has, with some help, now effectively ‘driven its juggernaut’ through rights reversals, adopted orphan works and even managed to redefine ‘fair use’, if only for themselves.

It is interesting to gauge the reaction of various parties in the post Google settlement, but it is clear that we could be in a ‘sanctioned first and maybe questioned later’ mode.

So what of authors’ rights contracts moving forward? Will they, or can they, be now term based? Will, or can, a work be subject to rights reversal, or is it a case of ‘one shot only’. Is there any sense now to territorial rights and how will the likes of Google ever enforce these? If a book is published by one publisher in the US and another in the UK, who do Google respect and pay?

Next we have the great urban myth: That the electronic formats are not as inexpensive to produce and publish as many believe.

Hello! The real reason behind this is that publishers are still, in the main, running their editorial and production processes in analogue. If they were digital their ability to produce digital, physical, or whatever, would be a lot cheaper. Many are still digitising physical product, or at best ‘finished typeset product’. Publishing isn’t digital, it merely distributing and selling digital product.

So should authors’ sign up to deals based on an inefficient and transient process and will poor royalty rates be revisited once the publishing process becomes efficient?

The Morning After the Great Book Bank Robbery

Today there is much rejoicing in the digital ranks. After all Google has just bought the industry for what would appear in this crazy world of money – a snippet.
So everyone will get paid and literature will flow freely around the Internet. You will be able to view and buy any book from anywhere and all those messy rights contract issues with digital just got settled. Libraries will get more members, publishers will sell back and forgotten lists and even authors will get recompensed. There will no more orphans as any lose strays will soon get sucked up and adopted.
Next will be the other legal battles that Google has in motion to capture the rest of the media and information world.

Is it good or is it bad. Who are the winners and who are the losers?

A hefty slice of all future revenues will remain with Google and as with any division of money, someone will have to pay for that slice. So what’s in it for booksellers? What will be the relationship between authors and publishers as they become tethered for life with no divorces? What will it mean to consumers as they become faced not with a huge virtual choice but everything ever published at a click?

Before the great adoption land grab takes place its now time to lay claim remembering this is an ‘opt out’ not an ‘opt in’ world. Forget right reversals Google has wiped that of the agenda in one swoop and some major publishers have got their way, albeit with Google’s considerable help. There is now no ‘reprint under consideration’ only a notice saying ‘Go get it from Google’.

Finally in the global networked world, is this a done deal for all and how do we deal with a world divided by Google. How will others now negotiate with both hands tied behind their backs?

Rights Fog

For those who can remember there was a time in the late 90’s when the world of rights clearance and permissions tracking and clearance came close. The likes of Subrights.com, rightscenter.com and Yankee Book Pedler were all pushing the envelope based on Internet services. Then came the reality of the size of the issues faced, the lack and consistency of the base information within the industry, the bursting of the dotcom bubble and the economics of start ups breaking new ground.
It is interesting to think what they each set out to achieve and wonder what would have happened if they had succeeded?

Subrights.com was probably making the smallest leap but if my memory serves me well went first. They basically wanted to trade subsidiary rights on line cheap and cheerful. A rights trading market offering buyers and sellers a place to trade.

Rightscenter were a bit more ambitious and with Silicon Valley backing wanted to create a global rights trading clearance house. The issue wasn’t the system as this was slick but about capturing the information efficiently and it soon got sidetracked into the Asian market opportunities. Some may say it lost its focus.

Yankee was driven to address that old thorny issue of permissions. They wanted to do this online, first capturing the publisher’s expression and associated value and then resolving requests and taking the money. Unfortunately permissions were often a mystery to most and one old colleague once described it as being managed behind closed doors with little logic and few questions asked. The champion went off to Hewlett Packard and Yankee went in another direction.

I may have had selected memory on the above and missed some points or even got some wrong but that is not the point.

So why is all this relevant today?

We still don’t have a rights clearing centre that can capture and resolve rights queries or trade rights and as more content goes online and is digitised the need to identify who owns it and what rights are associated with it becomes more important. Where do you start and what is the natural development path? Are rights and their trading separate to the content or inherently linked to it? Should you be able to click on any object and see an expression of its ownership and attributes?

Alternatively should there just be a clearing house that stores all information and allows search and discovery? Should the ownership be with the industry fairs as that is the trading forum for much of this activity? Should be the driver be the bibliographic houses who some would argue are the obvious aggregators? Is rights trading purely a B2B activity?

It is interesting that a business that is primarily about rights and the trading of rights, appears not to have agreed a road map of how to address and approach this in this global and digital environment.