The Google settlement brings into bold relief what has been a quiet issue for book publishers, particularly the biggest ones.
They are largely in the dark about what rights they own.
It is not really hard to understand why they’re in this position and it isn’t really anybody’s “fault”, but it sure is a mess. The “rights database” or “contracts database” for most publishers consists largely of paper contracts in file drawers. That’s because all the big publishers gain a substantial portion of their income from backlist that was acquired years, decades, or even many decades ago, long before electronic rights databases were even conceived of.
There have been big improvements in the possibilities for storing this data in recent years. We’ve written extensively about StartWithXML processes and the idea that the rights information could “travel along” with the content in an XML document. That’s new stuff. So is the Klopotek system that actually builds the publisher-author contract from a rights database; the workflow had always had this work the other way around.
But these solutions, even for publishers farsighted enough to employ them, don’t solve the problem of thousands of legacy contracts in file cabinets. The Google-related issues primarily revolve around whether the rights to an inactive book (or, in the settlement lingo, what they would call “not commercially available”) have reverted to the author or are still held by the publisher.
Publishers also have problems with books on which they unambiguously have the rights to print and sell copies. What they don’t know, without looking at the original contract, is whether the language in it gives them a shot at an ebook, a print-on-demand edition, or allows them to include some of the material in that book in an electronic database. Even looking at the book contract might not tell them if they have the rights to use artwork that is in the book in any other edition.
We are working on a future post on “business development”, which we figure is a big opportunity for publishers who have digitized a large amount of legacy content, which many (if not all) of the big publishers have. But any hopes of business development are stopped in their tracks if a publisher doesn’t know what rights are controlled.
The challenge of building a comprehensive rights database for the many tens of thousands of titles the big publishers control is probably cost-prohibitive. And even if money were no object, there would be a lot of empty cells in that database where information should be because contracts would be lost or incomplete. Figuring out how to attack that problem cost-effectively is one of the most important puzzles facing the senior executives of the major houses.