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Vol. 38 No. 6 — Jul/Aug 2021

CREATOR TO PUBLISHER

PUBLISHER TO PUBLISHER

Licensing agreements were important to publishers even before digital distribution turned readers into users, especially as a tool for managing rights to works by licenses between publishers. Publishing agreements for “trade books” (fiction and general interest nonfiction) and for college and higher-level textbooks typically make a distinction between “primary rights” and “subsidiary rights.” The primary right conveyed in the agreement is to publish the work in book form, in the territories and languages specified in the agreement. The grant of a right to publish in book form is not as simple as it might appear. The definition of what a book is has changed over the years, thanks to the advent of digital.

Subsidiary rights are rights to the work that the original publisher typically exploits through a license to another publisher or distributor. Print rights that are considered subsidiary rights include foreign reprint rights, translation rights, periodical or serial rights, rights to do book club editions, anthology or collection rights, excerpt reuse rights, and rights to do premium or special editions. Subsidiary rights are exploited through license agreements between the original publisher (or if the rights were retained by the author, the author or agent) and another publisher or producer. In these types of license agreements, the original publisher or author is usually referred to as the “proprietor” and the licensee as the “publisher.” Rights to publish the work outside the country of origin are licensed by territory and by language and are typically explicitly limited to print rights only. Reprint and translation agreements normally contain time limitations, so that the right to publish a translated version, for example, may last for a 5- or 10-year period.

REUSE AND EXCERPTS

The terms of these licenses are determined by a combination of industry practice and individual negotiation, and that is also true of certain types of licenses for excerpts. For example, trade publishers have long handled requests from third parties to incorporate portions of a prior work in a new work of authorship on an individual basis. These types of permissions are usually managed by a permissions department that reports to the contracts, rights, or legal department within the publisher and are one way in which licensing can facilitate the creation of new copyrighted works. Publishers will often maintain a high level of control over how permissions are granted for a variety of reasons. With respect to famous authors or controversial works, there may be a concern about how the author or the work is presented in or associated with the new work. Sometimes the original author, or the author’s estate, has a contractual right to approve such permissions, which can create additional complexity. But it is difficult to manage these types of licenses in a way that is both responsive to the needs of potential users and cost-efficient for the publisher.

There are many other types of reuse licenses that are more appropriately handled through some form of centralized management, via a clearinghouse that can act as an agent for the underlying rightsholder or via participation by the rightsholder in collective licensing. For example, among the most economically important rights for college textbooks are those that deal with the use of excerpts in supplemental course materials. Requests for use of those materials in course packs are usually handled through tools like those offered by Copyright Clearance Center’s pay-per-use system on its website, in which the rightsholder sets in advance the terms upon which reproduction permission can be granted. This licensing of photocopying or digital permission for use in educational materials is particularly ill-suited to an individual, transactional permissions request process between user and publisher, in which response time is often an issue and in which the generally low per-transaction fees can easily be exceeded by the costs of the transaction itself.

This robust market in the licensing of excerpts, in both print and digital formats, for use in teaching materials such as custom publishing arrangements and course packs is an important revenue source for college publishers. These types of permissions are relevant to other kinds of publishing, but college publishers are particularly concerned with these activities since they are both a source of licensing revenue and may have a negative impact on sales if the custom materials replace purchased textbooks.

There is also a healthy market for the licensing of excerpts for use in business settings. Organizations benefit from—or rely on—the selective reuse of copyrighted content for corporate communications, sales, R&D, training, and other functions. The uses are sometimes significant—such as when a pharmaceutical company licenses use of a figure from a peer-reviewed journal to promote the efficacy of its drug in a presentation to doctors—and other times more mundane—such as when an executive posts a newspaper article on an intranet to track market developments. In many cases, licensing is required; in others, companies will take a license for the avoidance of doubt.

There are parallels between direct business reuse and reuse for educational and creative purposes (such as in a new work of authorship). For example, a publisher may want to review, or at least closely track, licenses related to promotional use, as in the instance of a pharmaceutical company using an article excerpt to promote its drug. When the author, publication, or publisher brand name is prestigious and/or the reuse is especially public, publisher review provides an important level of discretion in licensing. Additionally, and similarly to textbook publishers in the case of course pack reuse, publishers whose content is reused for commercial purposes may have a business interest in preventing possible cannibalization of revenue. Judgment dictates whether one type of use replaces another and whether the substitution is damaging to the publisher’s bottom line.

In many cases, however, reuse of copyrighted material in the business context is incidental, and exposure of the content is limited to employees or others working on behalf of the organization—for example, use of content within internal company training and everyday sharing of content among employees in adjacent areas of the business. The risk to the publisher of such reuse is low, as are the fees that could be reasonably charged for each instance. In addition, and importantly, companies are loath to disclose the specifics of their internal operations, and many employees fail to recognize the need for licensing from the outset. The combination of low risk, low value, and reluctance of or a lack of awareness around these transactions and their reporting makes them ideal candidates for disposition via collective licensing. Copyright Clearance Center’s voluntary Annual Copyright License (ACL) allows companies around the world to easily secure licenses for such incidental, most often internal, reuse, and it enables participating publishers to capture royalties that otherwise would almost certainly be lost. If permissions for these types of uses are not easy to obtain, users will in large numbers simply proceed without permission, revenue will be lost, and respect for copyright will be eroded.

DIRECT LICENSES

The licensing chain has the ultimate goal of bringing the work into the “hands” (literally or metaphorically) of the ultimate user. And with the exception of those exploitations made by the direct exercise of rights by the publisher—like the printing and sale of physical books—distribution of the work will occur through licensing. That is how our original reader/user, with the exception of the traditionalist purchasing or borrowing of a physical copy of a book or journal, will get access to the work. The work may be delivered through permitted access to an individual copy of an ebook or through access to a subscription either as an individual user or as a member of a category (e.g., students or faculty members at a university or employees of a corporation). Typically, those types of licenses come with associated fees (which may not be obvious to the individual who is benefiting from a corporate or university-wide license). But even if the price is “free,” it doesn’t mean that the work is necessarily “license-free.” There is a great deal of content accessible online without having to pay a fee, but that is nevertheless made available subject to licenses (Creative Commons licenses, for example). Scholarly works published pursuant to an OA model are still published and made available pursuant to licensing agreements, but the agreement between the publisher and the author provides that the public will get access to the work without payment since, as a general rule, the costs of publication are assumed by the author or the institution.