Tuesday, November 30, 2010

A Rights Business With No Rights Registry

Many see digital as opening up new opportunities one of which is to identify those old best sellers that have gone out of print and get then back on the shelf. Obviously it would be good to get them on the digital shelf as ebooks and with a relatively low investment they can be up and available competing with everyone else again. Once out there, there is little need to do anything except collect whatever sales revenues occur. The other option is to make them available once again in a physical POD (print on demand) rendition. Again once set up, POD is just a case of collecting the money from the sales, on a book that may never go out of print, needs no marketing spend and may never get its rights reverted.

In somewhat a roundabout way this is where Google came in and is what the, still unsettled, book settlement is about. The problem was never those new works under new contracts that allowed them to go digital, nor those that had slipped into public domain and no longer were tethered to anyone. It was always about orphans and many of this were not completely parentless, but just lying dormant and ‘out of print’. To all those wishing to adopt orphans, ‘out of print’ now offers relatively cheap digital pickings.

Many dispute the orphan numbers and debate numbers and not ethics. Some will assume rights and adopt a ‘publish and be dammed‘ approach always willing to admit an error when found out, but too lazy to do the diligence to establish the facts first.
We write this not as a piece of theory, but as a result of establishing books that were sucked into a trade publishing programme improperly. Some will basically trawl their best sellers that are out of print and readopt them without the appropriate diligence.

So again we ask how publishing is to manage rights in a digital world when it has no registry? How do authors and estates protect themselves from digital tethering and how can authors effectively monitor the situation?

1 comment:

Michael W. Perry said...

You've touched on my main gripe with the Berne Convention, it's open hostility to any mandate for owner registration after as well as before publication. Legally, ethically and practically, that makes little sense.

"Real" property (land and buildings) has a centuries-old, government-maintained system of recording ownership, with probate courts taking care of inheritance issues. That's why there's rarely a debate about who owns land, despite the fact that the buying and selling of land is far common than that for book rights.

Intellectual property, while it should not last forever, needs something similar. The lack of an IP registry makes life difficult for those who create and publish. And that 'something similar' shouldn't be run by a private entity with corporate ties that might distort its policies i.e. Google. That makes as much sense as having GM handle auto registration.

The real failure of the last thirty years is that the Berne Convention hasn't be revised since 1979. Given the enormous changes that have taken place in the media since then, that makes as much sense as having laws intended for the era of horse and buggies in place unchanged in the U.S. as late as the 1950s.

A revised Berne would also give all parties, here and abroad, a chance to have their say. The result wouldn't be something that was worked out by a small group of American lawyers meeting in secret like both the first and revised Google Settlement.