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?

Its a Rights Business With No Rights Management

Yesterday our good friend Mike Shatzkin wrote and interesting and insightful blog on rights, ‘A serious issue for big publishers’. The debate stirred much discussion as Mike stated what we all know – that publishes , ‘are largely in the dark about what rights they own.’

In the old physical world this wasn’t a massive problem but in today’s digital one it is.

The Google Book Settlement, whether it gets approved or stuck out, has raised the issue not just of orphans and reverted rights, but also the thousands of books covered by legacy contracts. One leading publisher, Evan Schnittman commented that , ‘we must find a way to open up those creepy, spider-filled vaults, filing rooms, and warehouses and dig through each and every contract to determine if we have reverted the rights to any title listed in the Google Settlement.’

Then there is the wording in the contract and if it can be applied to a digital rendition. It’s also about the other rights associated with the work; illustrations, photos, graphics and paid for works such as translations and even permissions granted within the work. Irrespective of the main work itself, can these other rights automatically move into a digital rendition under existing contracts?

It is not difficult to envisage that some may assert their ownership of titles without the due diligence and the scrutiny needed. Unless someone objects, some may believe we could find cases of further land grabbing. Over the last 80 years, many lists and publishers have changed hands and its fair to assume that a small minority of contracts may no longer exist. The settlement, implicitly, asks the Registry to reasonably police against spurious claims. Obviously the settlement will generate a number of counter claims, disputes and the new proposed Book Rights Registry will now try to sort these disputes out. Some will say that some disputes will be almost impossible to resolve.

Today the Bookseller, in it coverage of the UK PA’s Google meetings, ‘ Press for Google compensation, says PA’, reported that , Jessica Kingsley, from Jessica Kingsley Publishers, questioned why publishers were being asked to pay for the Book Rights Registry to police only one other company Google.

As we have said before publishing is a rights business and if you accept that, then surely we must manage and control all the associated rights including legacy contracts. The Rights Registry is a good move, but we would suggest only if it is independent of the Google settlement. However without the Google money, who will pay for it, manage it and if the settlement doesn’t happen, how we can stop future land grabs?

We hope that the judge throws out the settlement and even if this means some hard decisions, other threats and it takes a number of years before we get a solution, it is better than starting with a bad settlement and wondering how we get out of it, or trying to amend and adapt it after the event and deal with an omnivore.

Rights Reversals

Can you believe what some may describe as the arrogance of some publishers to use digitisation as an excuse to land grab copyright?

We wrote about Simon and Schuster’s latest attempt to ‘muscle’ their creative talent into new contracts, which some will say, would give them copyright until it becomes public domain. Then one day later, we read in the Bookseller that Random House Group is pursuing a similar approach.

The Societies and guilds that represent authors must now raise their members’ and also the public’s awareness to the issues and potential grab that is being attempted. It is important that the reasons why it should be rejected are spelt out and not merely negotiated behind closed doors.

It is not good enough for the publishers to claim the world has changed and that contracts must reflect this. No one would dispute that contracts need to be revisited, but the changes some propose are at best questionable and worst unjustified. Once contracts have been changed it is unlikely that they will be reversed. Some may say that publishers are protecting their digital investment, others that they are acting selfishly and building their assets with little commitment to sharing risk or reward.

The problem is not digitisation but the urban myths and lack of full understanding around it. We are not describing a mature market, but one that despite much hype has still to take off. Where is the public debate? Where is the dialogue? Where are the facts and the economic cases? Are the agents fully educated to the bigger picture, or are they like many struggling to keep abreast of a rapidly changing environment?
Hollywood writers took to the streets to fight their case, but can we expect authors and their agents stand firm against the hand that feeds them?

If the PA, APA and guilds and societies do not educate and open the up the debate, we potentially face stand offs, bad press and most importantly, the reversal of contracts, lead by not the majority but a few and impacting the total industry as we know it today.