http://www.digitalbookworld.com/2011/co-creating-value-with-audiences-%E2%80%93-7th-son-obsidian/

Series history:

Co-Creating Value with Customers (first article)

http://www.digitalbookworld.com/2011/co-creating-value-with-customers/

Look for the first article soon!

http://turnstylenews.com/2011/04/14/shared-story-worlds-scott-walker-artist-series-podcast/

This interview could have easily gone on for hours – so much to cover, between transmedia, fandom, shared worlds, religion, education, the ‘Transmedia, Hollywood 2′ conference, etc.

Plus, Noah’s got some cool creative ideas of his own (which he couldn’t talk about yet), and I’m looking forward to seeing his projects (some will be shared worlds, too!) get launched.

I see many issues with the current intellectual property legislation (copyright, patents, and trademarks), but I’m mostly interested in copyright. Specifically, the aspects of copyright that appear to be not just ineffective but actually working against the very principles behind the intent of the laws.

Copyright was put in place to encourage the creation of content such that society benefits as a whole and the creator benefits individually. By granting the creator a limited protection under which they can monetize their creation, the theory was people would be more incentivized to create content (and society would benefit from that sharing – initially in a protected manner and then in an unlimited manner when the content fell into public domain). More content = good.

Initially, content had to be submitted for copyright protection by filing paperwork with the United States Copyright Office (USCO). Changes in the law now make fixed creative works automatically copyrighted (though you will enjoy additional benefits if you take the extra step to file for a copyright).

The result is that new content is automatically copyrighted at its time of creation. That’s good, right?

Well, sort of.

Creators no longer have to deal with the USCO, so many works are not registered with or listed in the USCOs records. In fact, works registered prior to 1978 are not even listed in the online USCO database. Search requests for works created prior to 1978 require filling out an online request and waiting for the results in the mail or physically visiting the USCO records office.

Even the online searches only list the name of the copyright holder, not a phone number of address.

And since the copyright office is, by default (due to the current copyright legislature), cut out of the copyright process, there is no longer a central, all-encompassing index of copyrighted works. There is no single database one can turn to in order to easily identify a particular work, find its owner, and (ideally) contact that owner to inquire about the licensing of their work.

In short, the USCO database:

• is not exhaustive (where’s the one-stop shop for all copyright listings?)
• is not fully digitized and searchable online (I need information now | I don’t live near the USCO)
• is not guaranteed to be up-to-date (the original copyright holder was bought out/moved/died…now what?)
• does not provide contact information on copyright holders (how do I reach the copyright holder to request licensing rights?)

Not so good.

Why Copyright?

Remember the reason for copyright legislation to begin with? Rewarding the creator with temporary benefits, right? Ostensibly, those benefits include control over how their works are used as well as the exclusive commercial rights over the work for the duration of the copyright (for most current works, this equates to 70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first).

Copyright is supposed to benefit the creator but ultimately, it’s supposed to benefit society.

Putting aside the question of whether the duration is too long (hint: I think it is), the main issue here is that only the small percentage of works that achieve great commercial success benefit from the current copyright system. This is why those lobbying the most to maintain if not extend copyright duration are those with the most to lose (hint: think Hollywood).

But what happens to the majority of other copyrighted works which are trapped under copyright protection but have not found commercial success? They mostly lie fallow and ignored, generating no income for the copyright holder. Further, their ability to benefit society remains largely unfulfilled, since it’s easier to not remix a work than jump through hoops to obtain the legal right to remix it.

Sure, fair use exists to address legitimate remixes of copyrighted material. Academic evaluation and artistic expressions that re-contextualize copyrighted works are often non-commercial in nature and provide value and benefit to society at large. Even commercial use of remixed works where the remix serves as commentary (e.g., “The Daily Show”) is covered under fair use. So what’s the problem?

Fair Use is Not a Sword (but it’s double-edged)

As an entertainment attorney, Peter Kaufman, once pointedly reminded me, fair use is a shield, not a sword. It’s a defense you can raise if you are sued for copyright infringement, but it’s not a legal right you can use to obtain legal permission in advance. You don’t sue first using fair use as your legal claim in order to remix or reuse a copyrighted work. You claim fair use if someone sues you for infringing on their copyrighted work.

And that’s the problem. The boundaries of fair use are fuzzy at best, and the only true test for coverage under fair use happens in the court. Of course, by then, it’s too late to know better.

So, it’s often easier to just pass on the remix of copyrighted material rather than take a chance on being sued.

The result is that the works of creators get dropped into a copyright hole for almost a century or more. There’s got to be a better way to make licensing these works easier.

Clearing a Better Licensing Path

How can we make it more likely that copyrighted works will be legally remixed without changing copyright law? How can we encourage the legal use of works that may be decades old without increasing the risk of copyright infringement?

Creative Commons is one solution for content going forward. It allows creatives to place a license on their works that explicitly grants additional rights to others without the need for contracts/agreements. I use CC for some of the creative work and support their efforts, but CC is by no means accepted by everyone in the creative community, and it is not always understood properly. Further, there are times when CC is not appropriate.

Mostly, though, CC’s value is with new content. It can’t address the issues of copyrighted works already out there unless you can reach the current copyright holder…in which case you probably don’t need CC.

Instead, I’d like to propose a clearinghouse for copyrights that also provides easy-to-use licensing models and supports revenue collection/disbursements.

I’m thinking of an opt-in organization that handles the content rights for creators and covers every conceivable form of content (video, images, audio, text, etc.). Sounds an awful lot like ASCAP, doesn’t it?

ASCAP has its faults, though I see them at the policy level, not the business model level. Why is it useful as a framework? Because it points to a better, more comprehensive model for handling copyright clearances than we currently have.

Say you want to shoot a movie and you want to include footage from another film, two recorded songs, and five different photographs. Chances are, you’ll need to interact with eight different attorneys, use eight different legal licensing agreements/contracts, and end up not using any of the works because the price is too high. And that’s after you tracked down the valid holders of the copyrights to each of these works.

Each licensing deal will be done on a one-off basis, with no transparency to the market. This creates inefficiencies and transactional friction, further increasing the costs of licensing (hint: think Wall Street before consumers could more directly execute trades and use online systems to do so).

If you had a single site you could visit that would give you all the information you needed to know about the cost to remix a copyrighted work, and you were quickly able to obtain that right, chances are you would remix more copyrighted works. Especially if the price was reasonable.

So here’s my proposal: instead of changing copyright law, we create a clearinghouse of copyright licensing by adding a third party to the licensing equation; a party that has the authority to issue licensing rights to easily searched works across a wide range of mediums as well as the capacity to accept payment on behalf of creators and which offered an a la carte approach to licensing prices.

Creators are incentivized to register their works with the clearinghouse and to keep their contact information up to date, since there’s a greater likelihood that their works will be found and licensed.

The clearinghouse approach addresses the issues with the USCO database and encourages the legal licensing of works for commercial use by dropping the transactional hurdles. It realistically would be aimed not at Hollywood but rather the smaller/indie creator who would benefit from being listed in such an index.

While it’s unlikely that this clearinghouse would result in a more complete listing of copyrighted works, it’s reasonable to guess that the works most likely to be licensed would find their way their. In a sense, the process of getting works into the clearinghouse would by default filter out the works least likely to be licensed.

I’ve seen a few examples of something similar to this (safecreative is one), but I haven’t found one that addresses all of the components in my proposal. Please let me know if you have!

My suspicion was that in a digital era where self-publishing is taking an increasingly larger piece of the traditional publishing’s pie, writers are valuing the worth of their intellectual property a bit more than they were twenty years ago. Or, to be more precise, writers have more and easier options to independently extract value from their intellectual property (e.g., online self-publishing).

But, unless you have the means to extract that value on your own (i.e., the time and knowledge to successfully self-publish, which includes marketing, technical, and other considerations), money may still be the priority. Someone’s got to make the cheese sandwiches, right?

Responses on twitter were mixed: @HoppingFun and @vforvoice came down on the rights/it depends side, while @davisac1 and @jchutchins opted for more money.

So, writers, I put it to you: which do you prefer? More money or more rights? More importantly, why or under what conditions?

UPDATE!

I moved some of the twitter responses over here so they wouldn’t be lost. Reviews are mixed, but “depends” seems to be the front runner so far…

@jchutchins: More money, less rights.

@vforvoice: More rights, less money. Media is too expansive to not retain rights for derivatives of original material.

@davisac1: I’d totally sell more rights for more money. That’s what I’d be trying to do with them anyway.

@HoppingFun: Depends on the biz plan and people involved. If I have creative freedom, I’d likely go for a split.

@BFree63: It’s a short term vs long term choice. With more rights comes more money down the road. I call it “investing in yourself”.

@chrisw10: With regards to writing, I think it depends entirely on the long tail. For my 1st story, I want more rights, less money for it, cause I think its too good to let someone tie up rights to it. But for anything I’m doing career-wise, more money, less rights.

[I then asked @chrisw10: "So, career/professional project= money, personal project = rights?"]

@chrisw10: For me, that’s probably how it breaks down. Though any commerical book that I think may be big I’d want to keep e-book rights. Unless giving them up will get me more in the long-run. It’s all about the long run. :)

@JolleySezStuff: Depends — is this a project I’m passionate about? Or did my car just die?

@gmskarka: For most writers, that’s a false dichotomy — More RIghts EQUALS More Money (in the long run).

@floerianthebard: Depends on the piece of work. If I want to do more with it b/c I see potential, I’d take less pay. If it’s a one-off, more pay.

@andrhia: More money, less rights.

@simon_staffans: Best of worlds? More $ first with a buy-back-in-option in the future. Likelihood of happening? Will there ever be world peace?

1) Commercial
The property has to be commercial in nature, meaning there is a legal way to monetize content in the property.

2) Participatory
The property must provide a means for audiences to participate in the property by co-creating content that has an opportunity to become official (canon). There can be a filter mechanism and/or an editing process, but a defined, explicit path for audience participation has to be provided.

NOTE: ‘Work-for-Hire’ (contributor is contracted in advance and paid to create a specific piece of content) does not qualify.

NOTE: ‘Submit your content and if we like it, we may publish it’ does not qualify.

3) Parity
The property must provide certain rights or benefits to a contributor in exchange for the use of the submitted content. The rights may be creative, commercial or other. The benefits may be revenue sharing or a one-time payment in exchange for the use of the submitted content. In some extreme cases, the property owner may grant commercial rights up front (for example, through the use of a Creative Commons license such as CC BY (Attribution)).

NOTE: This is different from work-for-hire, as the property owner is not entering into a legal contract with a contributor until after the submission has been made. In the case of the CC BY license, contributors do not even need a legal contract in order to commercially use content in the property.

NOTE: Credit/attribution alone is not sufficient. Stripping a contributor of all rights over their submitted content and supplying only credit/attribution is not sufficient parity for the purposes my research.

If you know of any commercial entertainment properties that meet this criteria, please contact me (and if you aren’t sure whether the property qualifies, send it anyway)!

A lot of ground is covered, including the philosophy behind Brain Candy, LLC’s projects, my thoughts on bridging creatives and audiences, and how publishers can benefit from embracing a transmedia approach to content and intellectual property rights.

http://publishingperspectives.com/2011/01/rethinking-rights-in-a-transmedia-world/

The panel was moderated by Emily Williams and also featured Richard Curtis of E-Reads and David Marlett of enkHouse.