Digital Rights: Prepare for Complexity the Likes of Which You've Rarely Seen

This post originally appeared on O’Reilly Radar ("The digital rights quagmire"). It’s republished with permission.

By Jenn Webb

Digital publishing brings to light a number of new challenges and areas of uncertainty for everyone, from publishers to authors to retail consumers. Sebastian Posth (@sposth), a partner at A2 Electronic Publishing and a speaker at TOC Frankfurt, discusses some of these issues in the following interview. He outlines questions raised in the digital rights and distribution arenas and talks about why the waters have become so muddied.

Our interview follows.

How have rights and licensing issues changed with the growing ubiquity of digital publishing? What new issues exist that didn't with traditional publishing?

Sebastian Posth: Rights and licensing have changed dramatically with both the growing number of platforms available for digital exploitation and the introduction of new forms of usage for copyrighted works — à la carte download-to-own content, DRM-protected lending features, cloud computing-supported "digital lockers" for consumers, subscription services comparable to Napster or Spotify in the digital music world.

Publishers are faced with long and complex agreements from Amazon, Apple, Google, Barnes & Noble and numerous ebook startups, and they all have the same questions: Do I actually own the rights these companies want from me? How can I make sure I don't breach one agreement by signing the other? And how do I make sure I avoid costly injunction letters when there is a rights conflict with one of my licensors?

How are digital rights any different from traditional print rights?

Sebastian Posth: In traditional print rights, the so-called "first sale doctrine" (also known as the exhaustion doctrine) means that once a lawfully made copy of a work has been distributed by the rights owner, the owner of that copy is able to sell, lend or otherwise give away this copy without further permission from the original rights owner. This means that no brick-and-mortar bookstore or public library ever needed any license agreements with any publishers to sell or lend books.

In digital publishing, there is no first sale doctrine. This means there needs to be a "chain of title" — a chain of successive and corresponding rights assignments from the author via the publisher and the digital distributor to the retailer and, ultimately, the end consumer of an ebook. And this chain needs to be in place as long as the work's copyright is actively exploited. For instance, when a public library "buys" an ebook from a publisher or aggregator, it still needs to maintain the rights to lend this book to its library users for as long as those users are given access to it.

How are digital rights affected by international trade relationships? Are they approached differently than traditional print rights?

Sebastian Posth: Digital distribution opens up the world for big and small publishers in ways that most people couldn't have imaged just a few years ago. Any publisher or even self-published author can sell books to people from Anchorage, Alaska, to Zhengzhou, China, without titles ever being "not available" or "out of stock," and without huge print and distribution costs.

At the same time, the legal aspects of this world-wide distribution are almost impossible to evaluate for smaller entities. A multitude of questions emerge: What tax implications will signing an "agency deal" for the U.S. have for a European publisher? Is my romance best-seller from Scandinavia violating any laws in the United Arab Emirates or Australia? Do I need to know about local fixed price laws for books in countries ranging from France to Germany?

How do these issues affect the publishing industry as a whole?

Sebastian Posth: At the moment, publishers and retailers are the ones most challenged by this complexity. A natural reaction is to try to secure rights for every possible (and even impossible) digital exploitation from their licensors, just to be on the safe side. If we can, as an industry, more clearly define rights, then I believe we will not only introduce a clear and robust rights framework for our business, but also be able to offer readers the widest choice of ways to consume books electronically, which will help grow the market for everybody.

This interview was edited and condensed.

Associated photo on home and category pages: Beautiful, but deadly square knot by woodleywonderworks, on Flickr.

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