Are Your Rights in Order? 7 risks and 7 ways of avoiding them

Sarah Faulder

What is the cost of getting rights wrong? Sarah Faulder, Chief Executive of the Publishers Licensing Society chaired a session that offered advice on developing the correct rights acquisition strategy.

They recently worked with the other collecting bodies to re-negotiate what is paid to rights holders. The outcome from the valuation last year based on journals 76% to publishers, 23% to authors and 1% to visual artists. This will be reviewed in 2019 and it is hoped that it will be increased for publishers. However,  this is dependent on getting tighter documentation demonstrating rights. Faulder urged the publishers in the room to get into good practice now by ensuring you have the right rights as it will be key to a successful negotiation. They have also launched PLSclear: a new permission clearing service to help with the identification of rights holders. Rights are very important, but they come with obligations: to use and enforce them.

Obtaining appropriate rights, understanding the rights you have and fulfilling your obligations in respect of those rights for each of your content assets is vital. You should look at every aspect of your content and cover every copyright base. When you are acquiring rights you should think about what you might do further down the line.

Clare Hodder

The speakers considered how to ensure you have all the rights you need for your content, and provided guidance on the systems, support and training that is available.

Clare Hodder of Rights2 Consultancy and Natalina Bertoli from Bertoli Mitchell outlined seven commercial risks of poor rights management.

1. Lost income: good rights management practice results in increased revenues.
2. Stifling innovation: good rights management enables you to innovate and move swiftly to market with new products.
3. Hard to combat piracy: good rights management enables you to combat piracy and unauthorised use, protecting your business.
4. Infringement: means you mitigate the risk of infringing copyright, and dealing with costly legal bills
5. Reputational damage: good rights management enhances your reputation amongst the author community and your market
6. Erosion of copyright: good rights management means that publishers and users of our content can work with in an efficient copyright framework, without the threat of broadening exceptions to copyright which undermine business models
7. Increase costs and risks for mergers and acquisitions: good rights management enables mergers and acquisitions to be completed swiftly and at the right price.

The panel then discussed ways to avoid these risks. Put rights management at the heart of your business from the top down. It has to be recognised and you need to train all staff, not just editorial. You need systems and documentation. Rights management often gets sidelined. Risk of short term inconvenience not worth risk of lost income or rights. Don't leave it solely to those who have targets.

Natalina Bertoli

Should publishers invest in rights management? Absolutely. Often rights are low down on the scale of things to invest in. You can caution or scare with big numbers of what it might cost. But even for smaller publishers you can do a lot with very little. Have a centralised filing place and a very good naming convention. It is preferable to do it digitally, but you can still do this with filing cabinets! Have someone in the organization who has responsibility for it. And regularly check and remind this needs to do. Conduct regular audits on your systems and that systems are being adhered to.

In addition to every bit of content you should think about how the content might be used for in different ways. Big publishers might aim to get all rights from the beginning, but rights holder often push back. If you don't get what you wanted, you can go back to renegotiate or rethink what you can do. Don't proceed as if you had them! 

Recording what you have in terms of rights is key. Asset management systems are needed. What you need is information about the rights you have. Until we get to databases holding rights metadata you have to find a way to slice and dice content agreements so you can identify different aspects. If you have a relatively small list you could use Excel. If a little larger you could get someone to put an Access database together. It doesn't have to be an all singing and dancing rights.

When dealing with reversions (where a publisher or creator requests rights revert back to them) make sure you give them the same paper trail and structure as you would a new rights agreement. Be VERY explicit in your wording: title, authors, formats, etc. Use a template format so nothing is missed.

Often rights acquisition is delegated to a junior member of staff with limited experience. It is vital to build in training programmes on rights management to ensure this doesn't end up being a problem.

Sarah Faulder is Chief Executive of the Publishers Licensing Society. Natalina Bertoli is Owner of Bertoli Mitchell. Clare Hodder is co-founder of Rights2 consultancy. They spoke on the PLS Gold+ Sponsor session on rights management at the 2016 ALPSP Conference.