Why is everyone talking about Rights Management? Clare Hodder explains...

Suddenly, it seems that Rights (Acquisition) Management has become a ‘thing’.

It is a topic at conferences, systems have been developed to support it and even new kinds of jobs are now dedicated to it. But why? Hasn’t the publishing industry always had to manage its rights? Aren’t rights fundamental to the very existence of publishers?

Well, yes, but it turns out that, by and large, we were somewhat relaxed about managing our rights when the world was based on paper, and digital (as with every other aspect of publishing) has made it all much more complex. In order to publish anything, we have always relied on an agreement with the person who created it (or those they had agreed could license it on their behalf), be that an author we commissioned, an in-house writer under an employment contract, or a photograph whose rights were secured via an image library.

Agreements were fairly standard and usually granted publishers a broad range of print based rights which would last for at least the edition’s lifetime, if not the full term of copyright. The likelihood of anyone straying too far from what was enshrined in these agreements was small, and the impact, if they did inadvertently exceed licensing terms, minimal. Consequently, most publishers did not worry too much about it, as long as they had an agreement with the main contributor, and had obtained (or got the author to obtain) permission for any 3rd party content, they had done their job, documents were filed, end of story.

However, as publishers have innovated in the digital space the range of rights they demand from rights holders has increased – seeking more rights, to cover more products, for longer periods of time. Rights holders have understandably responded cautiously, wanting to protect their revenue (and future earning potential), reputation and, importantly, control over how their content is being used. Publishers are not simply getting the rights they are asking for, or are getting them on more limited terms, and this poses some problems.

Add to that, the fact that all this innovation in the content that publishers are putting ‘out there’ means it is not just author contracts and a few permissions agreements to worry about, but you also have to get rights agreements with the person who shoots your video, records your pod-cast, the users who contribute user-generated content, the freelance writers who write your blogs, the software developer who created your app, and many, many more creators who have been engaged to deliver content. More rights in more content from more people = a bit of a headache!

How do you know who has given you what rights, for how long, and with what restrictions? You can no longer assume that everything you might want to do with the content is covered by the agreement you put in place several years ago, the big issue now is that you actually have to check. And you do actually have to check, you can’t bury your head under the duvet and hope it will all go away because ‘we’ve never had to do all this before’.

There is now a very real chance you will be sued if you get it wrong, or at least have to deal with a time-consuming settlement for an eye-watering amount of money. Suddenly, having the author manage some of those agreements or shoving everything in an archived, paper, editorial file doesn’t seem like such a good idea. It becomes necessary to think up front, before you even commission a project about what rights you will need to make the project viable and whether you are likely to be able to get them.

Time taken to acquire the rights and budget needed to pay for them needs to be factored into the process and the product needs to be monitored post release to ensure that all of the licences remain valid and re-clearance arranged (and paid for) where necessary. Documents and data about rights acquired need to be collated and stored and new workflows need to be established. And, so Rights Management as a ‘thing’ has emerged, with staff and systems and blog posts to boot, and it’s a ‘thing’ we all need to get to grips with, and quickly.

Clare Hodder, is a copyright and licensing specialist at Rights2 Consultancy. She will take part in the ALPSP and PLS webinar Effective Management of Rights on Monday 23rd January. Register now to secure your free place and find out more about how to manage rights management in your organization.

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.

Are Your Rights in Order? Clare Hodder reflects on what happens if not...

Clare Hodder, one of the speakers on the Are Your Rights in Order? PLS sponsored session at the ALPSP Conference, is passionate about the right way - and wrong way - to do rights. We interviewed her in advance of the conference to find out just exactly what the problems are.

What are the cost of getting rights wrong?  

There are a few things...missing out on revenue from subsidiary rights, because you don't know what rights you have to licence, not being able to digitise your backlist because you don't know if you have the rights, not being able to enforce infringement action because you have no documentation to prove you are the rights holder (as in the Georgia State University case). And that's just the start.

In one instance, a publishing company had to pulp an entire first print run, because they realised too late in the day, that the licence they thought they had acquired for the picture on a book cover, didn't come with an image release from the people pictured. The people in the picture objected to the use of their image and insisted the book was pulped. The publisher had to foot the bill for destroying their stock, finding an alternative image and reprinting the book and of course valuable sales opportunities were missed and marketing effort wasted, due to the delay to publication.

Some rights holders, particularly photographers are getting really hot at looking for unauthorised uses of their work on-line. Publishers who have acquired licences for a certain number of years or to cover a certain number of copies have been finding themselves on the receiving end of lawsuits when they have exceeded those terms unknowingly. In most cases settlement is reached relatively quickly but its time-consuming and expensive - damages awarded for such infringement, particularly in the US courts are high.

What are the benefits of getting it right?

If you have comprehensive rights data on all of your assets, the world is your oyster. You can endlessly re-publish, slice and dice, and licence those assets in infinite combinations, broadening the reach of your content and generating lots of additional revenue. Without that data, you don't know what it is possible to sell or licence so you either miss out on those opportunities or become a copyright infringer - risking large financial and reputational penalties in so doing. It makes so much sense to put your rights in order first and set yourself up to fully exploit the content you have invested in.

Which of the 7 ways to avoid risks can you share in advance of the conference?

Make sure you have a rights acquisition policy that is widely known within your organization (and complied with!) getting the right rights in the first place saves you a whole world of pain later on! Guard against the raft of infringement claims now facing publishers by ensuring you can manage licence compliance. Adapt systems and processes to alert you when you are about to exceed licence terms and give you time to re-licence or remove content to avoid infringing.

Clare Hodder is a Rights Consultant with Rights2 consultancy. She has been working with the Publishers Licensing Society to develop PLSclear and delivering Straightforward Permissions and Rights Management workshops. Clare will take part in the Are Your Rights in Order? 7 risks and 7 ways of avoiding them at the ALPSP Conference 2016 at 2pm on Thursday 15 September.