Buying and selling rights are at the heart of publishing. But, as Publishers’ Licensing Services’ Head of Legal and Policy Marjon Esfandiary writes,difficulties for some publishers in proving ownership of their rights can be a significant impediment to trade. What can be done?
At the core of good rights management is knowing what rights you own and the limits of the rights you don’t own. Copyright is the intellectual property right forming the basis of most creative industries, including all types of publishing. It is considered to be a property right and can be bought, sold, transferred fully or partially, licensed for particular purposes, lengths of time and in specific territories – in many ways like real property.
The first owner of copyright in a work is the author (other than works created in the course of an employment relationship, for example by a staff writer or photographer in the case of magazines, in which case the magazine publisher will be the first owner of copyright) and so certain rights will need to be transferred from the author to the publisher to allow publication and distribution of the work to take place. Knowing the scope of such transfer is the first step to enable the publisher to commercialise the work. Have the rights been fully assigned or just licensed for particular purposes? Which countries are relevant? How long does the publisher have the rights for? Does the publisher have the right to grant others the right to translate the work and publish it in other countries? Copyright exists independently in different types of content making up a work, so these questions apply separately to each of the text, photos, and other images. You can see that it quickly gets very complicated!
If identification, ownership and the scope of each of these rights are not adequately considered at the point of commissioning or acquiring rights, it becomes difficult to know what is owned and what exactly can be done with each work. This could limit the publisher’s ability to generate sales and income via for example licensing, serial rights and syndication or to monetise its backlists via digitisation programmes.
Publishers’ Licensing Services (PLS) is a Collective Management Organisation – owned by four publishing trade associations – which oversees collective licensing in the UK on behalf of publishers for magazine, book, journal and website copying. PLS represents a broad range of publishers in terms of size and type of work published, and collective licensing offers a simple and cost-effective solution both for those who wish to copy from published materials without breaking the law, and for rights holders where direct licensing would be inefficient and unduly burdensome.
In 2015 an independent rights valuation was carried out for the purpose of distributing collective licensing revenue between publishers, authors and visual artists. The valuation indicated that it was difficult for some publishers to prove ownership of their rights, and that rights management was often not as good as it might be. PLS therefore intends to raise awareness of and provide know-how and guidance on best practice in Rights Management for publishers as this could also have an impact on the revenue from collective licensing received by publishers.
As part of this initiative PLS hosts a rights management practice group, with experts from a range of publishers including magazines (B2B and B2C), consumer books, educational books, academic books and journals, and with Amy Joyner (Kogan Page) as Chair. PLS is developing a website with the support of this group, which will provide guidance and resources on best practice in rights management. We expect to launch this later this year.
Marjon Esfandiary has worked as a commercial lawyer specialising in intellectual property rights for over 20 years, starting at a law firm in the City followed by various roles in-house, including at Unilever PLC and Hachette UK. Her experience in the publishing industry includes dealing with a wide range of contracts, advising on the creation, protection, licensing and use of IP rights, as well as data protection.