Transcript: Managing Copyright Today

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a Digital Book World panel discussion, recorded January 15, 2013

with
Andrew Albanese, Publishers Weekly
Robert Gottlieb, Trident Media Group
Kris Kliemann, John Wiley & Sons

moderator
Christopher Kennealy, Copyright Clearance Center

for podcast release Monday, January 21, 2013

KENNEALLY: I was thinking about the fact that we’re here in the Lincoln Room and Lincoln said a great deal about a lot of things. I couldn’t find a single thing he said about copyright. Which isn’t surprising as we’ve been hearing because the concerns that we have about copyright are just so much more prominent today than they were in the past. But he did say this about education, “Upon the subject of education, I can only say that I view it as the most important subject which we as a people can be engaged in.” And at Copyright Clearance Center we clearly believe that’s very much the case with regard to copyright. And I was struck in particular by what Glenn Pudelka mentioned, that 20 years ago a session like this, talking about copyright education in publishing – well, that would never have happened. That would be like a warm day in January. It just would never occur. Well, so here we are.

Before we get started with our discussion and I’ll just briefly say my name is Chris Kenneally. I’m the Director of Business Development at Copyright Clearance Center and have a chance to attend several of these types of conferences and it is the book world – the Digital Book World, after all – so I thought it would be appropriate to make a book recommendation. And so I’ll tell you about a book called Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back. It’s the first book by Rob Levine who was formally Executive Editor at Billboard and was published recently by Doubleday.

But don’t let me tell you about the book. Here’s what Bill Keller said in his New York Times review. He wrote, “Free Ride is a wonderfully clear-eyed account of this colossal struggle over the future of our cultural lives.” And while what we’ve been hearing today has been largely matters of principal and law, it is very much the case that this is a struggle over the future, if not of our cultural lives, of our business lives in publishing.

And at the On Copyright 2012 Conference that Copyright Clearance Center sponsored last March, Robert Levine explained how the commonly used language of copyright has shaped this debate and makes for confusion on the fundamentals.

This is what Robert said, “I don’t think copyright infringement is stealing,” he told the audience, “The idea that this stealing, I think, introducing a moral tone that I don’t like. I don’t like to treat it as a moral issue. I like to treat it as a legal issue and an economic issue. It’s also not sharing,” he continued, “sharing implies good. If you’re sharing my book, that implies you’re doing something good. I think stealing and sharing are both not what’s going on. I think copyright infringement is a very good term for what’s going on. And I would encourage more people to use it.”

That’s from Robert Levine. And, again, I do highly recommend his book. If you haven’t got time for his book, we do have his keynote address on our Website at copyright.com. And I think you would enjoy it as much as find it very illuminating.

I want to introduce the panel that will speak for about the next 40 minutes or so. And then we will have all of the participants today join us for a group discussion which I’m going to go into the audience and try to take all of your questions as we can. Moving from the end of the table here, I’ll just introduce briefly Kris Kliemann who is Vice President and Director of Global Rights at Wiley where she oversees the rights, licensing, and permissions department with a team of more than 40 people located in the U.S., England, Germany, Singapore, and Beijing. Kris, welcome.

KLIEMANN: Thanks.

KENNEALLY: To her left, Andrew Albanese is Senior Writer at Publisher’s Weekly. And he has written extensively on numerous copyright related law suits, including the Global Books case that began in 2005, and more recently the Authors Guild vs. HathiTrust case. Prior to joining PW, Andrew was a Reporter and Editor at Library Journal and a former Editor with Oxford University Press and Regan Books. Andrew, nice to see you.

ALBANESE: Thanks.

KENNEALLY: Just as a sort of a bit of promotion, Andrew and I talk regularly on the Beyond the Book podcast every Friday. We talk about the latest news in Publishing. So we hope you’ll join us for that. And, finally, on the end, Robert Gottlieb. Robert, welcome. Robert is the first and possibly the most effective literary agent to brand authors. His successes over the years include international best selling writers Tom Clancy, Dean Koontz, and Janet Evanovich. As well as Deepak Chopra.

He began his career in the mailroom of the William Morris Agency as part of the company’s Agent in Training Program. In the early 80’s he discovered Tom Clancy and in 1989 he was promoted to senior vice president, becoming one of the youngest agents to ever head the WMA Library Department. After 24 years at William Morris Agency, Robert Gottlieb started Trident Media Group in September 2000 where he now serves as Chairman. And, again, welcome.

So I want to start this discussion with Kris Kliemann. And, Kris, we were talking prior to the discussion today about your own background. And so you’ve been in publishing for a bit of time and have worked, among other places, at Farrar, Straus and Giroux. And Roger Straus, you said, had a wonderful reminder to his staff. Tell us what that was.

KLIEMANN: First of all, I just have to say, this is sort of like a trekkie convention to me, you know? Like, welcome copyright nerds!

KENNEALLY: Do we have to do that?

KLIEMANN: I’m sorry, but it’s so –

KENNEALLY: We make a C with the little – yeah.

KLIEMANN: You know, I hope more people care than the number of people who are in this room. But I’m glad that we’re also here.

Yeah, I worked for Roger for 10 years and I’ve always been in rights my whole career. And he had a little saying. He was very much not a folksy person, but he had a little folksy saying that has stuck with me all these years which is as follows: “He who sells what isn’t his’n goes to prison.”

(laughter)

So you have to start with that principal. What rights do you have, and do you have the rights to license them onward?

KENNEALLY: Right. And for Wiley, it makes a difference what kind of a publisher you are and your view of these questions. Can you sort that out? You’ve been here since the beginning of the program. You’ve heard Scott and Glenn talk. Any particular reactions to the way they’ve presented it, as a matter of business? What we’re trying to do –

KLIEMANN: Well –

KENNEALLY: – in this discussion is kind of get down to what’s it like day to day?

KLIEMANN: Yeah. I think there’s two – one thing I would clarify, I think, that we just didn’t say out loud, which maybe everyone here knows since we are all copyright trekkies, we’re talking about – there’s a term. There’s a number of years that copyright is effective. There are various ways of getting around that, as we’ve discussed, but when a publisher – let’s start with a publisher – licenses from an author the right to publish a book, typically that is for the term of copyright. And that is how many years, at this point?

M: It’s life of the author plus 70.

KLIEMANN: Right. So –

KENNEALLY: And, if I can, Kris, I’ll just say that Robert Levine had an interesting comment about that. He’s often conceded that this length of copyright term, this life plus 70, is something that maybe it is too long, after all. That’s a commonly heard charge. But he said, I don’t need the copyright for my books 70 years after my death. What I would like is a couple of months when it’s not pirated.

KLIEMANN: The notion that we’re – the other thing where I always get a little bristly about is, copyright is for the protection of the author. What, exactly, are we protecting the author from? I think we should we clear about it. It’s a system that exists in order for the author and others who help get the word out to benefit financially. It’s about wealth creation. So we’re not protecting them from some, like, knife wound. We’re trying to make sure that people who create content are remunerated and people who help put that content out into the world are also remunerated. So I speak up for the publishers on that.

At Wiley when we sign up a book, we care about what rights we get because we want to first talk about what are we going to create? What are we making? What is Wiley making? Wiley publishes only non-fiction. Wiley licenses content – Wiley creates products that are for college students, for scientific researchers, for professionals who need continuing education for various kinds of specialty businesses and we publish books that are for sale in bookstores. Best selling business titles, leadership titles, New York Times best sellers, Business Book best sellers, etc.

So because we have that wide range, and because it’s only non-fiction, when you start becoming interested in what can this kind of content be in a digital world, you don’t just talk about a print book. You don’t just talk about an e-book where we still are mostly turning our pages. I still lick my finger sometimes on my iPad when I get really engrossed. Those are terrible habits that exist from childhood. So we’re talking about, yeah, OK, a video embedded in an e-book. We’re talking about a college classroom product that enables a professor to keep track of attendance, to keep track of homework, to upload his own lectures, to, as you said, tell you about the amoeba without you having to go to your microscope, showing you what it looks like through the microscope. You can see them wiggle around, you can see the volcano explode. A huge amount. You can take a test in a minute to find out if you know how to do those accounting programs. There’s a lot of additional stuff going on there that’s not just, I read it, made brilliant suggestions to make it a better piece of art or literature, sent it to a typesetter, and printed it on paper and put it on a truck and sent it to a bookstore. So –

KENNEALLY: That raises the complexity of copyright to a level that wasn’t really anticipated or seen in the past.

KLIEMANN: Right.

KENNEALLY: I’d like to point out that, if you’re confused, you are beginning to understand the problem, right? So how do you at Wiley try to keep this straight? You need a database of the rights you’ve acquired with your authors, you need a database of the rights that you’ve licensed from others – it must be quite a task.

KLIEMANN: Exactly. And that first part is what’s Wiley going to create? And then comes my department, what does Wiley have the right to license onward to another creator, the Bulgarian Publisher? Chances are Wiley, themselves, will never be Bulgarian publishers. So we have to track those two pieces. You’ve got the initial rights, you’ve got the subsidiary rights. And you have the author contract, the larger work for hire contract – that’s the big creation – and then all these bits and pieces.

And I guess we talk a lot about digital in terms of creating digital product. But there’s also the wonderful things we can now do because we have digital tools as our helpers in tracking this. So we try to keep track of every single piece of content that we have and the rights that we’ve received for those pieces of content. It was one thing – I also worked at Hyperion and Disney when they started their publishing company, so the first day I got there we hadn’t signed anything up yet. So that was really nice. You could (inaudible) book one. You could go to your little Excel spreadsheet and you could put in your little graph or what rights did we get? First serial, check. Second serial, check. And what the author splits were, etc. And you can build your database one title by one title and Hyperion, in the seven years I was there, published between 40 and 100 books a year. That’s a manageable number of data points that even a person like me and an assistant could track. When you arrive at Wiley that’s been in business for 200 and now 5 years or something like that, and publishes lots of books and lots of journal articles and these complex combination digital print products, that’s a lot more. So we spend – everybody spends a lot of time tracking the data.

KENNEALLY: Right. And Glenn Pudelka brought up an interesting point, I thought, which is that in this dynamic moment in publishing, publishers are finding out what they do and what maybe they shouldn’t be doing. And rights enters into that because there may be somebody better positioned, better experienced with the knowledge to exploit those particular rights and you want to license that. So identifying not only what you want to do, but what may be better for others to do is a critical point. And you used that – you do that with apps, for example.

KLIEMANN: Right. So there are the things that Wiley will do, there are things that Wiley won’t do. There are examples of new kinds of – I often see rights – subsidiary rights licensing as a kind of R&D for Wiley or even for other publishers. We want – we know that it makes sense to have a lot of apps out around our titles. We publish the Dummies series. The For Dummies series. Which, actually, is one of those examples where there’s a format and even a font that belongs to us, separate from what the author may have signed to do when she writes the book. We want a lot of Dummies apps out there. But apps are expensive to create. So let’s figure out some that we’d like to create and have some learning from and let’s figure out what we want to license to maybe a series of app developers and set up our contracts in such a way that we have the same kind of learning. They’re giving us the reporting. We have a lot of say in what it looks like. But now we have a bigger pile of apps that we can evaluate, judge, learn from, etc. Rather than trying to do it all ourselves.

KENNEALLY: Right. And, Robert Gottlieb, I want to bring you in because we’ve been talking about the dynamic place of copyright in publishing. Your role as an author’s representative puts you right at the middle of all of that. And I want you to respond, first of all, to what Kris was saying about what is copyright supposed to do? It does in a sense – it does protect authors, but it allows for economic advantage. From your perspective, has the relationship changed at all for publishers and authors around these issues in the last fifteen years because of technology?

GOTTLIEB: Well, I’d like to start by saying that Yogi Berra understood publishing better than anyone I know because he once said, “Good hitting beats good pitching.” But then he turned around and said, “But good pitching beats good hitting.” So that’s very much the nature of our business. A lot of it is contractual. A lot of it is interpretive, as Glenn pointed out. A lot of it is based on how the legal system reads into what contracts mean and what they don’t mean. From our standpoint, as author advocates, copyright, as most of you know, is the road map by which authors make a living off of. And not so much protects them – but protects their work, so that others have a responsibility if they want to use it to pay to use that work in what ever format or place in the universe that they want to do it. What was the other part of the question?

KENNEALLY: Well, I just – I’m curious about the relationship you have with publishers today as an author’s representative around these issues. Copyright sort of leads inevitably to the acquisition of rights and licensing and so forth. You are negotiating on a daily basis with these publishers.

GOTTLIEB: Yeah.

KENNEALLY: How have those negotiations changed? The contracts clearly have gotten more complicated. The negotiations must be that much more torturous for everybody involved.

GOTTLIEB: Well, there are number of parallel tracks. One is that it’s been much more contentious than ever before. John Sargent and the Holtzbrinck Group came out with a contract that was absolutely awful and hurtful, I believe, to authors. And said to the industry, well either you accept it or you’re not going to do business with Holtzbrinck. And a lot of small agencies had to accept that contract. I know authors who signed those contracts. We didn’t submit books to Holtzbrinck as a group for over a year. And then after the heads of the various divisions of the company realized that they were missing out on a lot of potential authors, they all went into John Sargent’s office and said we can’t do business this way in the industry. So John Sargent called us and said, well, let’s sit down and talk about the contract. Well, the contract that we have with Holtzbrinck now is fundamentally the same contract we had before he issued the new contract. And I think, so, when Glenn was talking about leverage, that’s a major factor in an author’s life. It could be leverage because the author has the ability individually to have leverage. Or it could be because they have a good lawyer, a good agent.

KENNEALLY: But, you know –

GOTTLIEB: But I just want to say that it’s become contentious because a lot of the companies that are out there that are publishing companies that I do business with – I’m not talking about somebody out somewhere in California. The beaches of California are awash with the bones of publishing companies. But the companies that we do business with, the major companies, a lot of them are owned by large media concerns. So when I started in publishing I negotiated with an editor. Editor wanted to buy the book, there was an effort inside the house to share the book and there was enthusiasm. So they editor would call us up and negotiate with the agent. And you sit down and – you would even negotiate things like the warranty clauses and other terms.

So then the large media companies came into play. And what they did is they – their legal departments and their business staffs started saying, look, you know, what’s this crazy idea that if we reject a manuscript, that we don’t get paid back the money right away? And we can reject a manuscript for any reason. It used to be for editorial reasons. Now it’s for any reason. So an author works a year or two on a book and they say, well we don’t want to publish the book. For whatever reason. Any reason. The author should pay us back that money right away.

So it’s become very contentious and you saw what the Penguin Group did before they partnered with Random House or – basically bought by Random House – is they started suing authors for advances that were fundamentally small. Wurtzel’s book – the author who wrote Prozac Nation – she owed $7,500. And Penguin sued her. Now they could write that off and they’ll get the benefit of the write-off now, just under $3,500. How much do you think they’re paying attorneys to make that? To sue her?

ALBANESE: More.

(laughter)

KENNEALLY: Exactly, a lot more.

GOTTLIEB: So my point is, is that you have these large mega publishing companies, media companies, who are all looking for ways to expand their use of the author’s copyright and reduce the author’s participation in the revenue sources from those copyrights. And, at the same time, another parallel is to hold on to those rights for as long as they can. So another good example is Simon & Schuster announcing that if a book is on a server – is on a server – the author can never get the rights back. Now, traditionally, it was first that X amount of books had to sell a year or in a half a year. And if they didn’t, you had the right to ask for the rights back. And then it became, well, X amount of dollars. So now we have X amount of dollars in the contract and if that isn’t met, you have the right to ask for the rights back. Now, Simon & Schuster announced, and there was a lot of push-back on it, that if the book is sitting on a server, it’s in print. Well, that basically evitiates (sic) the copyright. There’s no longer license between the author and the publisher. So those are the kinds of the contentious issues that are out there. And I’ve just named a few. We deal with a lot of them everyday.

KENNEALLY: Right. And what you’re describing is – and it is the Lincoln Room – is a kind of a civil war going on. A contentiousness that is rife in the industry. And would you put the finger of blame on copyright and do you think, in fact, that publishers are also in a position where they’re seeing their own rights undermined, too? It seems to me that this right click license that Glenn is talking about affects everybody almost equally.

GOTTLIEB: Well, I only blame publishers for their problems. They really bring it on themselves. If you look at the effort that they’re making to deal with piracy in the industry as a whole, it is awful. Absolutely awful.

KENNEALLY: By which you mean not enough?

GOTTLIEB: My author – yeah – my author Sherrilyn Kenyon sends e-mails filled with piracy sites that her publisher never heard of. And yet they say they have a department devoted to this area. But putting that aside, is that publishers are under a lot of stress. With the change from print to e-books, it’s making them behave a little crazy. And what I mean by that is that they’re seeing their industry change in front of them in a way where they don’t know when they walk in the door tomorrow what their business is going to be like. So they’re thinking – and this is what John Sargent told me – and I know John since I was in my early 20s and I know he’s happy when I use his name in these matters – is that they want to hold onto anything that has potential. Because they don’t know where it’s going to go. So they would rather put it on the shelf and leave it there and maybe never use it than not have it. And that’s the mentality across the industry.

KENNEALLY: Right. Well, an important perspective from the author’s side of things, Robert Gottlieb. Let me turn to Andrew Albanese and, Andrew, ask you about, as we say almost every week when talk on our podcast, you’ve been back in court. So much of publishing news today is coming from the courtrooms around these copyright issues. As you cover it, give us some thoughts you have in the back of that courtroom as you think about, well, I work at Publisher’s Weekly, but it might as well be American Lawyer.

ALBANESE: That’s true, I do spend a lot of time in courtrooms and reading documents and – I guess I want to thank everybody here for contributing to that. Because I really – it’s a great beat to be on, I have to say. It’s very interesting.

But I will say, the primary observation I think that I’ve had over the last decade of covering some very contentious cases is that I’m getting the sense that maybe too much is being off-loaded to the shoulders of copyright. Copyright is not a panacea, it’s not a fix-all. It is a – it’s not a moral right. It is a business arrangement. And I feel like there’s been too many lawsuits that were based on principals where people have thought that this is what copyright is – when maybe the law didn’t exactly match up with that.

And I think the Google case, especially the Authors Guild’s case against the HathiTrust is a good example of that. And I don’t mean to beat up on the Authors Guild, but they took a pretty good beating in the most recent opinion from Judge Baer. And my question for the Authors Guild in bringing that suit would be, do you have a big orphan works problem? Why were you suing over this? Why were you really going after this issue? It was an issue of principal. But I would gather that if you’re in the Authors Guild, you know exactly what the status of your copyright is. And it struck me that more important way for the Authors Guild to be spending its resources might have been dealing with digital royalty rates. Or e-book rights. Or some other issues. But here we are having a major battle in court and spending resources on orphan works.

KENNEALLY: And it seems to me that’s in part because copyright was something that was limited, it was off to the side, it was reserved to only a few players in the past. And now each one of us, with our iPhone or some other device, is a copyright creator on a daily, minute by minute basis, nearly. And, so, all of these things just have been heightened because of the way that technology has put that copying function in – literally – in our hands.

And, Kris, I want to go back to you and talk about, from the business perspective, the analysis that you say that you are able to undertake, now, because of the technology. What kinds of things are you learning about the potential that all these rights have for Wiley? Is it something that is a growing part of the business?

KLIEMANN: Well, rights has always a function on the P&L of any company as a – what do we? You know, it’s OPI. Somebody I worked for one time called it Other People’s Money, right? Oh, Other Publishing Income on a P&L. And we like to refer to it in my group as heavy revenue. You know, the sales money comes in and it has a lot of costs against it. The rights money comes in and it has not so many costs – I am paid for my work. But it’s not the same kind of cost structure and a lot of what comes in for rights revenue is really profit. It drops right to the bottom line in terms of a company.

For me, I think, the – I’m not going to defend publishers against authors. I don’t – you know, that’s a negotiation. It’s like you said, it’s a business proposition. I think what I’m proud of is that we try to exploit the rights we have. Exploitation. That’s kind of not a very positive word. But I mean it in the most positive sense. And the idea that I just want to make it easy for people to get the rights to my work. I want to negotiate the right price. Now, I’m not even going to say a fair price – I’m going to say the right price. What I have has high value. I think you should pay me a lot for it. But I don’t want to be in the business of preventing you from getting what you want. So we use a lot of tools – small permissions that people need to get to further scientific knowledge. We use rights language as a CCC tool. On our Website you can click on rights link, answer a couple of questions, identify the piece of content you want, and pay with your credit card.

KENNEALLY: But –

GOTTLIEB: Before you go ask the next question –

KENNEALLY: Sure, sure.

GOTTLIEB: I just want to say that historically, in publishing, the rights that publishers got, they were equipped to exploit. And so that’s an important factor in this discussion with publishers. Now, with what John Sargent at Holtzbrinck wanted to achieve is the acquisition of additional rights that they’re not equipped to exploit. And they’re – let me – just one moment, please. And that they’re not willing to invest in. That’s not right. That is not right. That’s a land grab.

KLIEMANN: I totally agree with you.

GOTTLIEB: And authors should not be in a position where they’re just turning over the universe to somebody who doesn’t intend to do anything with their material.

KENNEALLY: Well, this –

KLIEMANN: I agree.

KENNEALLY: Yeah, and I think the other – there are two – this is a battle with two fronts, if you will, right? So there’s authors and publishers – Andrew wants to argue and say there are three, but, it seems to me that it’s everybody in publishing against what we’ll call the pirates, for lack of a better word.

KLIEMANN: Yep.

KENNEALLY: And so when it comes to copyright it shouldn’t be an obstacle, it should be a tool which eliminates obstacles and provides people with what they want and –

GOTTLIEB: It’s a tool but it’s also a piece of land. It’s a tool but it’s a piece of land. It means that it’s a tool to accomplish creating revenue but it’s also a piece of land that is owned by somebody.

KENNEALLY: Well, Andrew, you had a third front to this war. What’s –

ALBANESE: Yeah, the public. I’m sorry, The copyright law is designed to promote the progress of science and the useful arts for the public. We have a role here, too. So one of the things that’s really concerned me over the last decade is that the public’s been caught in the crossfire, here. But I will say that they’ve become much more involved in copyright. Even if they don’t necessarily understand the finer workings of it, they’re definitely much more involved. And if you have any doubt about that, how many of your friends or even you posted that hoax Facebook notice about your copyright notice? The public understands that they don’t want people taking their photos off their site. But at the same time, they don’t want their online user experience inhibited by overreaching laws as well. And you’ve also saw that with SOPA. In the beginning of last January when the SOPA bill failed –

KENNEALLY: The Stop Online Piracy Act and all, yes.

ALBANESE: You now see that the public along with the tech industry, is now involved in balancing the copyright discussions going forward. And I think that the public is going to demand a seat at the table in any new legislation that comes forward.

GOTTLIEB: Well, and also they want to be able to fill up their gas tanks for free. That’s the nature of the public. The public wants it for free. And copyright is part of a matrix in a business. And that has to be respected as well. It’s not a one way street. So the public has more access to copyrighted material in different formats – and over the Internet and in all kinds of different matters than they’ve ever had before. And they’re benefiting from it. But it should not be at the expense of peoples whose lives revolve around creating copyright.

ALBANESE: But they’re also –

KENNEALLY: Can I just say, too, as a former freelance writer, I understand exactly what Robert means. I used to say, I eat what I kill. And so I understand perfectly well the point you’re making, Robert. It’s a very important one. And, frankly, not limited only to authors but to people in this business at large.

GOTTLIEB: I would say to everybody who wants something for nothing, I didn’t grow up in that kind of generation.

ALBANESE: Did you buy every book on your bookshelf?

GOTTLIEB: Every book on my bookshelf either I bought or someone gave to me as a gift.

ALBANESE: (overlapping conversation; inaudible) give you any –

GOTTLIEB: But I have never believed in taking something for free and just doing whatever I want with it. I – it’s not – maybe it’s my generation. You know, my father taught me you have to work for a living. You’re going to – you know, at 18 years old you’re not getting any more allowance. It’s not a free ride. And, like I said, people who have access to copyright material it’s bigger and broader than every before. I believe it’s an empty argument to say it’s the public’s interest to get stuff for free.

KENNEALLY: Well, there’s that very famous quotation from Stuart Brand about information wants to be free. He continued, information also wants to be expensive. So that tension has been there from the very beginning.

Kris, I want to ask you about the culture at Wiley around copyright and licensing and permissions, and the communication that’s required across the company to understand the importance of it all, to value it, It’s always interesting to me that we have education in the publishing business about copyright be a bit like telling farmers that milk comes from cows, right? It seems to be fundamental. But talk about how you express the value of all of this to your colleagues at Wiley.

KLIEMANN: Wiley’s a huge company. So it’s not, like, I could just stand at the front door in the morning and say, thanks for turning up, don’t forget copyright. Although, Roy Kaufman who now works for the CCC was a lawyer at Wiley and he used to wear little copyright buttons to remind people. We have a lot of left hand-right hand stuff going on and we try very hard to keep track of it.

This debate happens right within the company. I have editors trying to acquire rights and I have permission people in my team, licensing rights out. So turns out after some deep thought around photography in our global education titles, we realize we needed, going forward, to acquire broad grants of rights and make sure that we were tracking the limitations, if any, in those rights. So we’re asking for broad rights. I’ve got people downstairs working for me – this is up in the upper editorial floors – and they’re getting a lot of push-back. People don’t want to give them these broader rights. And I’ve got people working for me who are being asked for broad rights and they don’t want to give either. We were all taught to be – it’s all a game of mother may I. Yes, you may have the right to do something with this piece of content for this short period of time, in this tiny place, usually for this tiny payment. And –

GOTTLIEB: But in connection with that argument the publishers make, I said to John Sargent, if you want a multimedia book product, call us. You have the book rights, you want to do something else with it, call us. We’ll negotiate with you on the author’s behalf. And then you’ll get what you want. But just to have it in the contract because you want it there, for whatever reason may come along down the road, that, to me, is shelving the author’s property until someone calls or knocks on your door and says we would like to do this.

So I’m trying to get publishers to think in a more pro-active manner. And in a manner that forces them, as this gentleman mentioned from Canada, into a place where they are partnering with the author and not treating the author as something that had acquired years ago and they can go ahead and do whatever they want. And so I think that’s an important discussion to have with publishers who have traditionally just gotten rights. Now we’re beyond that point in the business environment. It’s no longer the traditional foreign rights that they like to get or the permissions rights or the sub-rights. Now they’re going into solar systems that they want to play in but they have no footprint in.

KLIEMANN: Right.

KENNEALLY: Well Andrew Albanese, one of the things about copyright is the relationship with technology itself and how one kind of leaps ahead and then copyright tries to catch up and so forth. And the tools that technology is putting in the hands of people goes far beyond Manhattan and one of the issues that we’ve talked a great deal about over the last year is self publishing. And we’re here at Digital Book World and that self publishing piece of the digital book space is changing everything.

I wonder if you could just address that because there authors are taking advantage of their copyright from the very get-go. They’re not licensing they’re publishing.

ALBANESE: Yeah. And you know what? I was at the Miami Book Fair with Kris and we did a session on self publishing there and one of the things that I was really interested in is how savvy the audience really was about what was now possible and one of the first questions they had was about copyright protection and how they secure their copyright protection. And, incidentally, a lot of those guys could use agents. Because the companies that are in involved in self publishing, some of the new ones, are taking great advantage of the self-published (overlapping conversation; inaudible).

GOTTLIEB: Huge advantage.

KLIEMANN: Yeah.

GOTTLIEB: Totally unregulated.

ALBANESE: But I think it’s an enormous, enormous growth industry. I think the publishing industry, the traditional publishing industry, has to find a way to get in on that gravy train somewhat. I think that there’s productive partnerships to be had there. And I also think that they innovations that are coming out of self publishing are going to affect traditional publishing in terms of royalty rates, in terms of distribution. There’s all kinds of things that are now being done. Self publishers are showing innovation in ways that the traditional publishers have been a little slow to show, perhaps.

GOTTLIEB: Well, it’s a very empowering tool for authors. It’s also an opportunity to do a lot of re-engineering. Because over the last 30 years publishers have pretty much devastated the mid-list world of publishing. Phyllis Grann, who was a great publisher at Putnam for many decades, made her success out of the Berkley Book line. She would pick authors who were hugely successful in mass market. And in those days you could sell five or six million copies of mass market books. And she would move them into her hardcover business. She would re-engineer them. And that’s what you’re seeing with a lot of e-book authors who are very successful who would have been rejected at first, out of the gate, by 99% of the publishing houses, again, that Trident deals with. But then, like Chris Culver who wrote The Abbey, which sold 800,000 copies on Amazon, you can re-engineer them back into traditional publishing and, now, foreign publishers have gotten on board and are starting to recognize that these self published authors have a value. The Tiger’s Curse was the first book that they represented that was an original e-book that was a YA book that was on the New York Times Bestseller list. We sold to Sterling when they were really cooking as a publishing house. And that book went on to list for six months as a hardcover after it had sold a quarter of million copies at a $1.99 on Amazon.

KENNEALLY: Right, and Kris, finally, and then we are going to turn to the audience for questions – you know, these tools that are empowering authors are empowering publishers as well. So one of the ways that I think that you do take advantage of this at Wiley is you can see, what I think in Safari land they call – Safari Books, I’m talking about – they call heat maps, where the activity – you can tell when someone’s reading an e-book – which chapters they read and which ones they don’t. Which particular books, if they buy a subscription, they are downloading and the others that they are leaving behind. That information, it’s, again, going to open up a tremendous new – in gold mining, what do they call it – A vein of rights for you.

KLIEMANN: Yeah, the Safari Books Online is what we’re referring to which is an aggregator platform that many individuals and corporations can subscribe to. So a lot of Wiley books are in there. A lot of O’Reilly books are in there. A lot of Pearson books are in there. They sell to a corporation a collection of books about general business practice or programming. And when I get reports on the usage of Wiley’s books in that platform – so, they have a lot of people looking at it, people are reading page by page, they’re going in, they’re finding out something, they’re going out, they’re coming back the next day. I get a record of what pages are being hit. So in a simplistic way, if we published a book about Office – Microsoft Office – and a section of that is on Excel and a section on that is on creating pivot tables – none of you need to think about this, but I do.

KENNEALLY: That’s good.

KLIEMANN: And everybody’s hitting pivot table, pivot table, pivot table, maybe it’s time to do a bigger book about more about pivot tables. That’s overly simplistic but you see where it could go. And you’re getting – and in the olden days you didn’t care. You sold a book. You didn’t actually care, as a publisher, frequently, if anybody read it. More or less did you care whether they read a certain chapter. So in this way, you can learn a lot about what you need to be publishing or what you need to be promoting.

KENNEALLY: Right. It’s fascinating. You sort of live by the technology and die by it, too, potentially. It’s certainly the classic double-edged sword. I want to thank Kris Kliemann, Andrew Albanese, and Robert Gottlieb for that lively discussion.