LBF2020: How will Rights business carry on without the Fair?
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Eight Ways to Boost Your Digital Licensing
Whether you’re a licensing newbie or an old hand, dealing with ebooks, journals, magazines, images, audio or video, there are ways to make your licensing bigger and better! Here are just a few ideas to start off this new year.
License more widely:
1. More markets, more partnerships – Perhaps the quickest way to expand your licensing is to sign up with a greater number of non-exclusive digital licensees. E-vendors vary a great deal one from another, so look out for partners who will help you reach new audiences and market segments.
2. Go global – For material in the English language, the US is clearly the biggest single market around. But don’t forget that there is active demand for good quality content around the world. The more niche your content, the more likely you’ll find people reading (or listening, or viewing) in English. So, take a look at worldwide markets and explore your options.
Freshen up your licensing:
3. Check out the latest licensing models – Digital licensing models are constantly being expanded and developed, especially for library markets. Not all of them will necessarily be a good fit for you, and that’s fine, but make sure you’re up to date, and be consistent across different services and platforms.
4. Tighten up your contracts – Terminology and emphasis can vary a great deal in licensing agreements. That’s because, unlike other rights contracts, they are usually drawn up by the licensees instead of by you, the rights holders. So it’s crucial you know the effect those differences can make, and how each deal fits with your licensing strategy.
5. Consider adding a new file format – Sometimes, making your content available in another format can bring extra sales. Think about who your readers are. Which devices and platforms do they use? Could this be the right time to add fresh file format?
Deepen your content:
6. Disaggregate your content – Do you have information-rich content that can be split up into smaller chunks: paragraphs, articles, chapters? Certain platforms are looking specifically for content like this, and you might not need to do any more than provide them with your existing files.
7. Prepare more backlist and archive material – Backlist gets so overlooked in digital licensing, and it’s a pity because the work involved may not be as daunting as you think! Instead of counting up the items (images, etc) to be cleared, group them by their original source. That will give you a more realistic idea of the work involved in checking and clearing rights.
8. Don’t hide your valuables – What else could you be licensing that’s currently hidden away from digital users? Checking out the rights might not be as complex as you fear!
Photo rights: Flickr free accounts are changing
A quick post from me today, as some changes are taking place over at the photo service Flickr, which will be relevant to many.
Flickr has long offered generous data storage to all photographers (and other providers of images) who choose to use the service. In recent years this has been as much as 1 Terabyte of data, a huge amount of valuable space!
But now this is now changing following Yahoo’s sale of Flickr to SmugMug not long ago.
What’s changing, and why does it matter to you?
Photographers and other providers of images are the people who will see the really dramatic changes and need to take urgent action before 8th January 2019.
If you’re a user of Flickr photos, the burden of proof is with you to show that you’re not breaching copyright, so there are steps you need to take now, too.
Photographers and other rights holders
That Terabyte of data is no longer going to be available free of charge, but will instead be reduced down to just 1,000 images unless you sign up for Flickr’s Pro account, which involves paying a subscription.
But here’s the urgent part: if by 8th January 2019 you don’t upgrade or reduce your account to fewer than 1,000 photos, then beginning from February 2019 Flickr will start to DELETE your photos for you!
Yep, that’s right, your photos will actually begin to disappear from the Flickr site, unless you take action to reduce the numbers or upgrade.
Off the top of my head I can’t think of any other online service provider who has deleted someone else’s copyright materials, after promising such a huge amount of free storage. Will photographers comply before the deadline? Will any miss the news, and suddenly find Flickr has unilaterally deleted their work? What might the legal consequences be?
Certainly, if some of your own photos are currently on Flickr, I’d advise you take a close look at your account and check whether you’re going to be exceeding the 1,000 image limit, either now or in the near future.
Make sure you don’t leave it too long.
What about users?
Many use Flickr as a useful resource for ‘free to use’ images. If that’s you, I’d advise that from here onwards you keep really, really good records.
Whenever you use a Flickr image, make sure you keep copies of the rights information you find on the site, especially if the image is under one of the various Creative Commons licences such as the “CC BY” licence which only requires you to acknowledge the source.
Remember that someone can challenge your use of their copyright photographs at any point after you have used them. That means you could have problems if you’re relying on a link to the Flickr website to show that your use was justified. The link and the image itself might just be gone from the site. The onus will be on you to justify your use, so this could cause you trouble.
As always with rights issues, keeping fantastic records may not be glamorous, but it really matters!
Jumping in
It begins…. Some news from me. I’m delighted to say that I’m beginning a course in Copyright law of the UK, EU and US at Kings College London. Last week marked the official start, so I’ve just got going.
It’s exciting and not a little daunting to be returning to study many years after my degree. However, I’ve worked with rights and copyright for many years, and I’m really looking forward to putting that knowledge on a more formal footing.
For me, one of the main reasons for following the course is to see more clearly how copyright affects us day to day, in the things we can or can’t publish, and the things we can reuse and repurpose.
I’m particularly intrigued by how that’s going to play out from here onwards, with digital, market and political changes (yes, Brexit, but much more too) all conspiring to make digital use both easier and more complicated at the same time…
I’ll be sharing a few of my insights with you as I go through the course, particularly things that strike me as having a real-world impact on what we can and can’t do with copyright content – our own, or other people’s.
However, it will still be “business as normal” for me throughout the course, and this week I’m about to head off to Frankfurt Book Fair. No doubt I’ll see many of you there.
What do today’s controversial copyright changes mean for you?
As I’m writing this, today (12 September 2018) is the day that the European Parliament has voted to adopt some controversial and bitterly argued changes to copyright legislation. There has been heavy lobbying on both sides. There’s a distance to go yet, with further dialogue etc due before individual countries can start to implement the changes. And the implications for the UK with Brexit looming are even less certain.
Why does it matter to publishers, content owners and content users, with so much yet to play out? Because working with digital copyright in a practical context, which already involved a fair number of grey areas and difficult-to-assess risks, just became a bit more complex and unpredictable.
Isn’t it all irrelevant to the UK because of Brexit? Not if you’re publishing online or using content on, or from, the internet. That’s pretty much all of us in the corporate or commercial world, plus many others beyond. We already have to think about a variety of national copyright systems when we publish online (not only UK regulations), and we’ll still need to do the same beyond Brexit.
One of the things that has been adopted today is the so-called ‘link tax’, which is actually more about headlines, text and content rather than the sharing of simple links. It might (if rights holders want to enforce it) mean paying to display snippets of content, disrupting not only aggregated news services but also potentially e-learning and online publications. But charging for snippets will reduce traffic to your site… these are not easy choices for content owners to make.
Also controversial is the responsibility placed on websites and platforms to remove content which infringes copyright. How you assess what is or isn’t copyright infringement – very fast indeed, with flawless accuracy and at unimaginably vast scale – is, of course, the difficult bit.
In our copyright work, we’re used to looking for clues about whether the user who uploaded a particular image, video clip or article actually owns it or not. But even with our experience, it’s not always easy to tell. The automated filters used by the big platforms have already thrown up some publicly-visible mistakes: blocking legitimate content and penalising users, or failing to spot infringing content. This is going to be messy. I’m told there’s also a proposal for a similar change in UK legislation, irrespective of what’s decided in the EU.
If you’re a publisher, all the more reason to put your rights management house in order. That includes image rights, which often get forgotten in older works. A lack of clear information can restrict you from exploring sales opportunities, and can even affect the value of your company.
If you use or own digital content, all the more reason to have clear guidelines for your staff about how copyright material should be acquired and used. It’s all about reducing the risks.
Who owns the copyright?
Who owns the copyright? A handful of good places to begin
If you’re using images, text extracts or pretty much anything else, you’ll need to know who controls the rights. Even if the name of the author (or artist, or photographer, etc, etc) is pretty clear, that doesn’t necessarily mean you know who to turn to. Can you reuse the material? Who will be able to tell you? And what terms or costs might they impose?
I’ve gathered together a few ideas of places you can look online, to help with this first stage of your research.
It’s very, very far from exhaustive. A recent academic study found that cultural institutions wanting to check whether a work is a considered an “orphan” (i.e. without a known copyright holder) across a range of EU countries, will have to answer as many as 569 separate rights research questions. This can be a complex field if you try to be really thorough!
In the spirit of starting with something a little less draining than that, here are a few starting points for various types of content:
- Writers, Artists and Their Copyright Holders (WATCH) – The WATCH File from the Universities of Texas and Reading is a useful first stop. It’s often the first place I’d try.
- DACS – The Design and Artists Copyright Society represents visual artists if you are starting from the UK (though the artists themselves are worldwide). Search here to see if the artist you’re looking for is listed. (Remember you might need 2 separate licences if you’re using a photo of a work of art: one for the work itself if it’s still within copyright (could be from DACS), and another for the photo.
- Poetry – Clearing permissions for poetry can be tricky. A handy feature of Faber’s online permissions tool is that, as well as allowing you to request permission for the poems they publish themselves, you’ll sometimes also find information about who else holds rights, if it isn’t with Faber. Worth searching here to see what comes up.
- PLS Clear can help with extracts from books or serials, as long as the relevant publisher has signed up with their service.
- Writers and Artists Yearbook – A UK-focussed list of literary agencies, book and audio publishers, magazines, newspapers, and more. I used to tell people that every UK public library would have a copy of the latest print edition (published annually), but in these straitened times I’m not certain if that’s still true. Either way, you might prefer to subscribe online
- Firms Out of Business (FOB) – Publishing companies, literary agencies etc from the past. Often in rights research you’ll find out who used to represent a particular author, and that’s frustrating if you’re not sure where to go next. FOB is associated with WATCH, and helps when you want to know who bought a particular list or imprint.
- International Literary Marketplace – International lists of publishers and literary agencies . The enormous printed volume of ILMP is expensive, and so is the full online service, but fortunately it’s possible to subscribe for as little as a week at a time. Plan your research in bulk, if you can!
4 Questions Before You Digitise
If you have older titles or archive materials which you’d like to digitise, but rights issues are getting in the way, here are 4 quick questions you might like to examine…
There’s hardly a publisher anywhere, I’m pretty confident in saying, who doesn’t have a few titles lurking in a corner, undigitised, because there are rights issues. Copyright in the main text of the books might be sorted out, with author contracts happily in place, but something along the way prevents those titles from being turned into digital form and enjoying an extended life online.
This might seem surprising to those of you who don’t work in publishing houses. (This newsletter goes out to a wide range of people: readers are just as likely to come from professional societies and academic institutions, as from the world of publishing – and welcome to you all!)
Often, the reason certain titles cannot be digitised is connected to the images. Pictures might come from a range of different sources, and clearing them again for digital use would mean additional time and cost.
Other types of material can have different kinds of obstacles, but the fundamental issues for corporates, societies and book or journal publishers are largely the same.
There are 4 key questions to start with, if you want to digitise archival material of any kind, and you know there might be trouble ahead.
Do you know where the paperwork is? – A basic question, perhaps, but it’s key to figuring out what the gaps are, and where to go next. If there’s nothing in the file (it happens), try looking for acknowledgements and captions in the printed work itself. What details can you see? You’ll still need to research who those copyright holders are and where to find them, but it gives you a starting point.
Can you figure out how many different copyright holders are involved? – Start with a list of all the items, but really the thing that will make a difference to your rights research is the number of sources, not the number of items. That’s because each rights holder represents a search, a conversation and potentially a negotiation, whether it’s for one small item, or a list of many.
Do most of the rights holders still exist? – More tricky than it sounds, this one, as content gets bought and sold on a fairly regular basis, folded into new companies and taken over again by someone else. But if your list includes a good proportion of recognisable, current names, your work will be much reduced.
What’s your approach to publishing risk? – Lovely as it would be to carry on searching for historical rights holders until we’ve exhausted every single possibility, that’s just not feasible in today’s world where time and resources are limited. So you need to prioritise.
Which content is going to be most important to the digitised work? Which items represent a high risk if you can’t locate the rights holder, and how do you go about creating a research log for those items you really can’t identify?
The answer lies in balancing a combination of factors against each other: the high or low publishing risk can depend on the copyright status (how old is it and where is it from?), the type of source (do they still exist? who else might hold rights nowadays?), and the way you plan to use the material (in an ebook? for a client? in e-learning?).
Nothing can be safer than a proper permission licence, but if that’s really not possible, you can go a long way to reducing your risks by having a clear process in place, and an audit trail to show the steps you have taken.
Commission-based Licensing Agency
I’ve recently taken over the running of the Digital Licensing Agency, originally founded by David Attwooll in 2002 as part of Attwooll Associates. I worked with the agency from the start, and over that time we’ve helped dozens of publishers to license thousands of titles across professional, academic, educational and consumer markets.
I currently have a few slots available for businesses to join our agency. Could that be you? If you’re new to licensing, we can advise on the process and recommend e-vendors for your specific list. If you already have a handful of licences in place, that’s generally fine and we can work around it.
The agency business is entirely commission based, so there is no up-front cost to you.
Major trade fairs in March and October are key times for the agency business, and I’ll have meetings set up there with many of the key e-vendors. If you might be interested, the run-up to one of those dates would be a really good time for us to talk.
This post was first published in Clare’s e-newsletter 7 September 2017
4 Questions to Kickstart your Digital Licensing
With our biggest trade fair of the year just around the corner, it’s time to check whether you’re picking up sales from all the most important e-vendors for your particular publishing field.
Although publishers have been licensing content for a good while now, the ‘rules of the road’ are far from fixed, and much can be up for negotiation. The following are a few of the most important signposts you need to take notice of along the way.
- What do you own? – Carry out an audit of the rights you hold. This can begin from a simple spreadsheet, but knowing what you own is the first step towards making the most of digital channels in all their variety.
- Who should you license to? – Naturally you’ll sell through the big name retailers, but what about specialist markets? Exactly what those are will depend on your subject fields. Look for a route that helps and supports you as you expand your licensing business, while keeping you in control.
- What can you negotiate? – Quite a lot! To start with, keep licences non-exclusive unless there’s a seriously compelling reason. And make sure you really understand where and how your content will be used. The detail really matters here. You’ll negotiate differently if your material is going to be the Big Star in a paid-for product, or if it’s just a ‘nice to have’ and might be handed out free of charge.
- Can you avoid contract pitfalls? – Certainly, but licence contracts usually come from the licensee, and that means they can vary enormously. Define the licence tightly and avoid limiting your options in future wherever you can. Take care that you have enough protection in the contract too, as it will have been conceived initially from the licensee’s point of view, rather than yours.
Commission-Based Licensing Agency
I’ve recently taken over the running of the Digital Licensing Agency, originally founded by David Attwooll in 2002 as part of Attwooll Associates. I worked with the agency from the start, and over that time we’ve helped dozens of publishers to license thousands of titles across professional, academic, educational and consumer markets.
I currently have a few slots available for businesses to join our agency. Could that be you? If you’re new to licensing, we can advise on the process and recommend e-vendors for your specific list. If you already have a handful of licences in place, that’s generally fine and we can work around it.
The agency business is entirely commission based, so there is no up-front cost to you.
Major trade fairs in March and October are key times for the agency business, and I’ll have meetings set up there with many of the key e-vendors. If you might be interested, the run-up to one of those dates would be a really good time for us to talk.
This post was first published in Clare’s e-newsletter 7 September 2017
A Growing Resource of Copyright Articles
Growing Resource of Copyright Articles – Clare’s articles published by Jinfo (information services specialists). These are subscription articles: contact Clare directly for details.
ANNOUNCEMENT: New Home for Digital Licensing Agency, Attwooll Associates
I’m hastening to let you all know about our news, which has gone out in a Press Release today.
I’m delighted and privileged to say that, from the beginning of April, the Attwooll Associates digital licensing agency is transferring across to become part of my own company.
I had worked with David Attwooll for 22 years, so this is a big moment for me and my colleague Mary Hammond. There is certainly sadness following the loss of David after an illness last year, but also optimism as we look forwards to the future of the agency he founded.
You can download the Press Release below.
PRESS RELEASE – Attwooll Associates licensing agency transfers to Clare Painter Assocs
Not Only Amazon: MFN Clauses in Context
This post was first published in Clare Painter’s digital rights newsletter on 7 February 2017
Problematic “Most Favoured Nation” clauses are far from unique to Amazon – and often contradictory
It might sound obscure to focus on a single clause in a digital licensing agreement, but this particular one is of huge importance to publishers and authors alike.
‘”Most Favoured Nation” (MFN) clauses have been with us for many years. It’s by no means only Amazon who has been known to put them in their publisher contracts, although it was Amazon who hit the headlines in January after an investigation by the European Commission concluded that their ebook contracts “may” have violated anti-trust rules in the EU and abused its strong position in the ebook market – by putting these clauses in their agreements with publishers.
In reality, ebook vendors have been using MFN clauses for years, not only in consumer channels but for institutional sales as well. In our role as digital licensing agents, David Attwooll and I found that MFN clauses became a frequent and repetitive theme of our contract negotiations with ebook vendors of many hues. And it still continues.
MFN clauses are not all born equal: they can vary a great deal. Broadly, these are clauses which require the publisher to offer the vendor the very best terms they have available anywhere.
But it isn’t as straightforward as it sounds. Offering consumers the lowest possible price is by no means the only measure you might find in such clauses.
Some talk about discount terms, or attempt to compare widely disparate business models. MFN clauses might oblige publishers to reveal innovations introduced by competitors (thus breaching confidentiality clauses?!), even if innovations occur long after signature of the contract.
Publishers who attempt to follow all this can find themselves tied in knots, trying to compare online apples and digital pears. It’s long been clear that a legal challenge was a distinct possibility, either in the EU or elsewhere.
Amazon has offered not to enforce MFN clauses, but this is limited in scope: it’s only for 5 years and, since this originates with the European Commission, it’s unclear whether British publishers will continue to benefit after leaving the EU. Nevertheless I’m pleased things are beginning to move. These difficult clauses can be both burdensome and impractical.
Copyright Issues for Case Studies
Copyright Issues for Case Studies – Clare’s new article has been published in The Case Centre’s newsletter, Connect (New Year 2017 issue)
EU Copyright Exceptions
This post was first published in Clare Painter’s digital rights newsletter on 26 September 2016
New Online Tool for EU Copyright Exceptions
Copyright exceptions are changing
There’s a great deal going on in the world of copyright reform, and I thought you might like to know about a handy new tool available online. It’s also free of charge.
There are currently multiple changes being implemented to the list of copyright exceptions in the countries of the European Union: exceptions are special provisions which allow you to use copyright material without needing formal permission from the rights holder, in specific circumstances.
It can be confusing when, inevitably, some countries legislate more swiftly than others, so to assist with this problem a new website has been set up. This shows you details of all the new exceptions, and the status of each one in every EU country: CopyrightExceptions.EU
Personally I find the map view particularly useful for an ‘at a glance’ view of particular exceptions across different countries. You will see there’s still some way to go in new legislation!
‘Fair’ Use
This post was first published in Clare Painter’s digital rights newsletter on 11 May 2016
When Can Use Be ‘Fair’? |
| Copyright rules vary across the world
Whenever you draw on someone else’s content, you need to know whether you’re likely to be breaching copyright or not. In the US, for example, ‘fair use’ was set up partly so as to allow certain reasonable uses without the (perhaps, perceived?) barrier of needing to seek permission. But it doesn’t apply everywhere, and knowing when and how you can rely on it, can be quite nuanced. New digital models sometimes push at the edges of what’s acceptable, and we saw this in action a week or so ago with the judgement of in favour of Google’s mass digitisation project. However, ‘fair use’ as such only exists in a handful of countries. Most have their own legal variations, and these can vary widely. In the UK for example we have ‘fair dealing’: although it sounds similar, it is very different and a much weaker provision. So, what does this mean in your own publishing? It’s wise to handle copyright exceptions and exemptions very carefully, and understand that some small level of risk may still be present when you rely on ‘fair dealing’ or equivalent legislation – unless you actually get the opportunity to prove your case in court. That’s not a business model I’d recommend! |
The Risk of Getting it Wrong
This post was first published in Clare Painter’s digital rights newsletter on 19 January 2016
The Risk of Getting it Wrong |
| Rights and permissions don’t always go smoothly
Licences and permissions are undoubtedly more complex than they used to be. Most publishing is online (or print and online together) and therefore global. That affects the licences you need to have in place, whether you’re authorising publication of your own material, or acquiring a licence to use or re-use someone else’s content. However you might think that established book publishers would be on safe ground with printed books. Perhaps not. Bill Bryson’s publisher, Transworld, recently hit the publishing industry press for what appeared to be copyright infringement on a book cover. As part of the cover design, they had used a particular ‘jolly fisherman’ figure which was used quite widely in connection with the town of Skegness, which features in the book. Only after publication did it emerge that the figure is still under copyright, and owned by the local town council. Apologies followed and, I believe, a retrospective licence was put in place. It doesn’t always remain so amicable. In 2014, Flickr (which is owned by Yahoo) found themselves in a storm of controversy when they announced plans to sell photos from their site for a variety of uses. These images had been uploaded to the site by individual users under the broad Creative Commons “CC-BY” licence. This allows wide reuse without payment, as long as the source is acknowledged. But it turned out that some of those users thought that, under this licence, their photos would only be used by small-scale publications and businesses. They didn’t like the thought that an internet giant such as Yahoo could sell their content and potentially pocket the profits. |
Changing Rights
This post was first published in Clare Painter’s digital rights newsletter on 29 September 2015
Changing rights |
| Copyright is stretching out to affect more of us than ever before
There’s certainly change in the air as far as digital rights go. Here are just a few examples that have caught my eye lately. Perhaps they’re not as diverse as they seem.
Chinese publishing visits Oxford There’s an increase in the number and frequency of Chinese publishing groups coming over to the UK to find out about publishing, and particularly about licensing. They seem especially drawn to Oxford, which is understandable. I always enjoy using Oxford colleges as a training venue! Open licences In a completely different field, it’s becoming clear that sometimes individual users don’t always fully understand the open licences they are using online. There have been a couple of cases (perhaps more) where a user uploaded their own photograph using a Creative Commons licence, but were dismayed when they found that their image had been used for commercial use without their knowledge. There are several types of Creative Commons licence, and the users in these cases could have chosen to use a more restrictive one which specifically excluded commercial use. But they didn’t. Perhaps it never crossed their mind that online content might be picked up by any organisation, for whatever purpose they like. Does this mean you should avoid using CC material uploaded online by a private individual? Probably not. After all, a recent US case found that the publisher had not infringed copyright. The difficulty perhaps arises when the individual assumes that their ‘open’ image will only be used privately or for social purposes, not as part of a product in pursuit of profit. Online training A third, and very different, field is that of online courses. Some online courses are open to any online user, just requiring registration with an email address, while others are only available on payment and are firmly protected behind a paywall. Either way, copyright issues need to be carefully considered for the materials used. And it isn’t only the universities and business schools which need to think about this. Membership organisations have to ask themselves similar questions, and so does any large organisation which is offering online training modules to members or to staff. And all this applies whether you are charging for the course or not. Everyday copyright So, what do these apparently unconnected examples have in common? I’d say they are all part of the way that copyright, and the need for compliance, is becoming part of everyday life for a much wider range of people. It’s not only authors, publishers, photographers etc. but also organisations, trainers and online creators of many kinds. It’s more important than ever to make sure that the licences you rely on are robust, and that people right across your organisation know where to turn for guidance when they need it. |
Copyright Risk
Take a look at Clare’s blog post for information services specialist Jinfo: Copyright Risk – Why It Matters and What To Look Out For