7. Rightsholder and User Issues
B. User Issues (continued)
Administrative Burdens
Those who obtain permission to use intellectual property from a service provider are obliged to contribute more than just a fee for these privileges. Reporting obligations and administrative commitments may present significant burdens to users who are unaware of the extent of the responsibilities they assume when they enter into agreement with a provider. The range of administrative responsibilities that service providers expect from users can be categorized by reporting requirements, participation requirements, and obligations.
1. Reporting requirements. Recordkeeping is the most common administrative requirement placed on users. Records may be requested on usage, sales figures, organizational finances, infringements, or proof of compliance. Providers rely on these records to:
• Calculate payments and royalty fees,
• Review license, subscription, or other user fees,
• Track projected versus actual uses,
• Report back to individual rightsholders about the usage of their particular intellectual properties,
• Assure themselves that a user is in compliance with the terms of their agreement,
• Identify new opportunities and services that the provider can offer.
The service provider specifies how the recordkeeping must be structured and submitted. It may entail no more than the submission of already existing records (e.g., cue sheets from television stations, airplay logs from radio stations), or it may require that entirely new recordkeeping efforts be undertaken in order to comply with the service provider’s specifications. The Copyright Clearance Center provides an example of the latter. Subscribers to its Transactional Reporting Service (TRS) must track the number of copies made from a particular work registered with the CCC. These tracking records must include the publication title, author, ISBN/ISSN number, publisher, publication year, number of pages copied, number of copies made, and payment. CCC has recently automated the tracking function for TRS subscribers, who now can report this information via the CCC’s Web site.11 Although this simplifies the reporting process, the burden is still on the user to do the reporting. For large-volume users, even the CCC’s automated online reporting option requires extensive data entry time and efforts.
Typical recording methodologies include "logs," "hit lists" (for information accessed via Web sites), audit trails, sales records (for products that are sold), and yearly financial records. Sometimes a provider may request statistics on use rather than "raw data" records. Providers may also request information on circumstances of misuse: records of infringements that have occurred within an end user community (if the user is a university or corporate entity that redistributes the intellectual property to its employees or staff), and the steps taken to correct these infringements, are often a condition of licensing. If a provider is uncertain how works are used in a particular setting (e.g., in teaching, research, public performance, etc.), specific documentation on these uses may be requested as well.
2. Participation requirements. Like rightsholders, users may be required to participate in certain service provider activities. Users participating in consortium projects are required to participate as fully as rightsholders in these projects. Some providers (e.g., the CCC) require that their users participate in periodic surveys, which they analyze to determine usage characteristics for a particular industry or sector that they serve.
3. Obligations. The license agreements between users and service providers detail most of the obligations that users must meet. However, some obligations are assumed rather than formally stated. For users who accept content for redistribution and use by a larger community of end users (such as a university for its students and faculty, or a corporation for its employees), there are obligations to see that the intellectual property is satisfactorily distributed to these communities. The larger institutional user essentially functions as an intermediary between the service provider and the end user, and must meet the obligations of a contract on behalf of all the end users.
Other obligations are more time-consuming than onerous: appending or affixing copyright notices and credits on all copies of works that are redistributed, displaying content in specified ways, sending copies of all products that incorporate the intellectual property to the service provider, and destroying or returning all copies of intellectual properties upon termination or nonrenewal of a license. One particularly burdensome obligation is obtaining model and property releases, or clearing underlying rights to works. When a rightsholder has not obtained these clearances, a service provider may assign these tasks to the user as a condition of use.
A unique administrative burden is placed on users when they locate content through a type of provider who facilitates access to intellectual property, but does not administer rights or distribute this property. These types of providers offer a useful service by creating a centralized repertoire of content that attracts both rightsholders and users. However, users who wish to license items in these repertoires must enter into direct negotiations with individual rightsholders. The burdens of direct administration can be particularly onerous, and users should be aware of the special tasks they will assume (see Chapter 2, Section E, "Direct Administration") when locating content through these types of providers.
Cultural heritage organizations, which frequently wear the dual mantle of rightsholder and user, need to understand both roles when participating in an intellectual property management organization. These roles need not be as divergent as they are portrayed. Rightsholders and users do have distinct intellectual property management issues and concerns, but they share a common interest in fostering efficient and effective management of creative works. Their reasons for using intellectual property management organizations frequently overlap. Both groups highly value centralized administration, services and tools, access to repertoires, and economic benefits. Organizations that understand rightsholders and user perspectives understand both sides, and have an advantage that can lead to more enlightened relationships with intellectual property service providers.
| Chapter 7: Rightsholder and User Issues | |
| A. Rightsholder Issues | |