Tuesday, August 31, 2010

The Digital Rights of Man

No one can confidently predict what the market will look like 10 years, let alone 20 years from now. We may debate many issues such as pricing, channels, formats devices but these are only part of the publishing revolution that is taking place today. Publishing is now digital publishing and with it everything from the author to the reader is being challenged. At the core of all this publishing change is an intellectual property business based on trading of rights.

Rights have long fallen into three areas; Primary rights which are associated with the work in a printed or primary form, Secondary rights such as translation, foreign, audio, print on demand, permissions, etc. which are extensions of the primary right traded and Usage and access rights which tended to be uniform and unimportant until we went digital. Some have suggested that a publishing rule was to acquire as much rights as possible and used as needed.

It is interesting to look back at prosperous 18th century booksellers such as Robert Dodsley were all large copyright owners we quote from, The Life of Robert Dodsley, “… for the real money lay in ownership of copyrights, not in the retailing… booksellers were the entrepreneurs who purchased rights from authors, and, binding to others, merchandised and finished the product through advertisement and trade distribution.”

In today’s digital world we are now starting to question what and how rights are acquired, managed and traded.

Some would argue that ebook are not different to physical books and are a primary right. They see content and ignore rights. Others would point out that the rights traded to the consumer, channels and terms are significantly different and that the consumer experiences a clear reduction in rights with an ebook and therefore ebooks are different. Some would suggest that print on demand is just another primary right, but again the economic model and supply is different and the rights implications are significantly different. Some suggest that there are no rights reversals in the digital and print on demand worlds and as a result, the authors becomes tethered to a publisher for life plus 70 years.

The Google Book Settlement was a rights ‘land grab’ for the orphan works and their unfair exploitation. The recent Random House / Wylie spat over ebook rights may have been quietly been sorted behind closed doors but we see this as just the tip of the iceberg. The issues are not just about primary versus secondary rights and orphans but also about access and usage and importantly converting rights to fair royalties and reward for all.

A logical way forward would be to make rights contracted on a fixed term licence and that term is only extended by mutual consent. Some would suggest that to tether an author into a fixed relationship for life, based on the availability of a print on demand copy or an ebook is well outside of the spirit that many contracts were entered into and may be seen as a clear restriction of future trade.

However, we face a marketplace where there are no standard contracts and way forward and where some would suggest that there is in fact as many contract variances as authors, publishers and even works. Moving forward it maybe possible to adopt a fairer term contract, but we still have the issue of what is primary and secondary and whether the two can be separated. Looking back we have a challenge with interpretation of contracts and potential legal challenges. We believe it is still amazing that in the 21st century we still do not have a rights clearing house, standard contract template, or authoritative source of rights information.

The big question is who will step forward and lead the way and defend the rights of the digital man?

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