People of a certain age — mine — probably first encountered the world of rights as a content consumer with pop music in the 1960s. British albums, which came in sleeves that were flimsier cardboard than American album sleeves, routinely had 15 songs. American albums had 12. And the British would put songs out as singles that didn’t make their way into albums more often than Americans did.
So we teenage afficionados of the Beatles and the Rolling Stones, of which there were many in my time, learned pretty quickly that there wasn’t a one-to-one relationship between the music available to the Brits and what was available to us. Their Rubber Soul and Help albums had more songs than our Rubber Soul and Help albums. Beatles for Sale was a British album which never came out over here. We had Something New pulling together songs that they had released as singles or on other albums.
It’s damn near 50 years later, but rights are still getting in my way in a different medium: sports. Even though the technology would make it very easy to make it available, I couldn’t watch the football games the Giants played while I was in Europe for Frankfurt. There would be money in this, of course. I’d pay and so would lots of others. But the deals haven’t been struck. Undoubtedly larger deals (some NFL games are televised in Europe and I’m sure those rights acquirers are happier if I can’t pull in the game I want on my computer) get in the way of this smaller one.
In the past several months, readers of this blog from around the world have commented on the unavailability of ebook titles in their territories even though publishers would have the right to sell them. As near as we can tell, this problem often tracks back to big publishers that have gone to agency pricing. (That’s where the publisher sets the price to the end consumer and becomes the seller-of-record rather than the retailer intermediary being the seller.) It would appear that many (if not all) agency publishers have withheld their titles in territories outside the United States, even if they would have the rights to sell in those territories.
That particular cause of the problem of unavailability is probably temporary. In fact, some publishers are just now announcing the availability of agency books in Australia. The agency model was a complicated challenge taken up in great haste by the US publishers to meet the hard deadline imposed by iPad’s introduction into the market and Apple’s iBookstore opening to serve it. Non-US consumers weren’t the only ones to suffer. It is now more than six months since agency began, and one large domestic independent ebook retailer, Diesel Ebooks, just blogged about how few retailers had, six months out, been able to secure the titles from all five of those publishers. The publishers are finding that the need to do lawyered-up deals with each particular point of transaction for their books is no trivial barrier to distribution. But it isn’t a permanent one; the deals get made eventually.
Here’s another complication I learned about this week. Amazon.co.uk, the British arm, sells only in the UK. It is Amazon.com, the US site, that sells globally. So if the rights to, let’s say Switzerland, are owned by the UK publisher, that publisher would have to have the ebook available through the US branch of Amazon or it wouldn’t be available to the Amazon customer in Switzerland!
This piece of information comes to me because of a discussion last week on the Brantley list triggered by the launch of a website by agent Jane Litte attempting to track lost sales. The site simply asks readers who wanted to buy a book (print or digital) and either couldn’t or didn’t why they didn’t.
One publisher on the list immediately looked up the complaints against his house, which the web site makes very easy to do. Among the first books he saw was one where his company had US rights only. The complaint was from a person who couldn’t get the book in a territory controlled by the UK publisher. Yet the US publisher was listed as the “culprit” failing to make the book available.
A long series of comments failed to get to the bottom of the problem. For one thing, we didn’t know whether the unavailability complaint applied to print or digital (which resulted in an improvement to the site that will enable the complainant to make that clear in the future.) But then we also don’t know how hard or efficiently the complainant looked for the book.
In other words, the site does the job of aggregating complaints about book unavailability, but does not adequately curate them. And it turns out that not all the “lost book sales” were due to unavailability; some were simply due to the consumer wanting a lower price. That is, perhaps, useful information but it is of an entirely different sort.
(Quite aside from the point to this post, every publisher should be harvesting and analyzing data from Jane’s site as, I’m sure, Amazon, Barnes & Noble, Kobo, and The Book Depository will! If you accept the responsibility seriously for being in touch with the people who read your books or are interested in them, you will want all the data points you can get and if this site gets a lot of traffic, it will provide unique data. “Harvesting and analyzing” does not mean “over-reacting”, by the way.)
It is clear — from this site’s data but even more from the complaints in comments on this blog and Cader’s reporting on Publishers Lunch — that ebook availability is frequently being blocked by rights controls. It has seemed to many of us that having a single global publisher would make that problem go away.
But that solution offers little comfort since global publishers are or were (at least temporarily) blocking sales from happening in territories where they actually have rights, because they hadn’t worked out all the logistics of agency selling in all territories yet.
The failure of availability of ebooks due to territorial restrictions is, to many, confirmation that the time-developed system of rights allocation, compounded by DRM in the digital world, is simply broken. This is another point of conflict between people whose highest value is ubiquitous availability of content (some without regard to the content consumer’s ability or willingness to pay) and those who value even more the right of the content creator or owner to maximize the revenue from that content’s use.
Just about the first rule any agent or publisher engaged in rights dealing learns is “acquire rights broadly, license rights narrowly.” Any agent who is a competent professional holds back any rights they can in any deal they make. And most agents trying to maximize an author’s English-language revenue starts with the assumption that they accomplish that by making separate deals in New York and London. Those deals are still primarily about print books. Ebook rights and various other territories, like Europe, are still pawns in the bigger game.
I am one who believes that digital change will lead us to a world where there is one global publisher for most books depending on a network of alliances to execute some aspects of marketing and to maximize distribution everywhere. But I also think our wait for that change to be widespread is going to be a long one; it is many years away. In the meantime, consumers of books will find — as music consumers did in the 60s and sports fans still do today — that what appear to be nonsensical barriers block them from purchasing and consuming content that technology could easily deliver to them and for which they’d be happy to pay a fair price.
But the barriers placed by rights to digital distribution are far less onerous than the barriers placed by practical realities have been to physical distribution. And they’ll come down faster. The agents who carve up the rights to maximize the author’s financial return (and their own) will be thinking about the implications of consumers blocked from purchasing them and one wouldn’t be surprised to see future deals require publishers to make ebooks available in all the territories for which they demand ebook rights. They will have author clients bugging them to do that. Unfortunately, nobody playing football for the New York Giants cares whether I can watch them in Frankfurt or not.
On another topic, but my favorite topic, I have come across this post by Andrew Davies, the MD of a tech company called Idio in the UK. I had the pleasure of meeting Andrew for an hour’s chat in London last month. But I call your attention to his post because it states the case I’ve been trying to make for years — that publishers need to get into community leadership while they can because the business of selling content must inevitably decline — incredibly succinctly and eloquently. I don’t know enough about Idio’s technology to recommend it, but I can sure recommend this piece as an example of clear and cogent thinking about the future today’s publishers face.