In the article I listed five questions to consider when entering into an arrangement that involves giving rights in your digital work to someone else.  Just to see if you were listening, can you please now list what they are……….  Ok, I thought so.  I had bett

In the article I listed five questions to consider when entering into an arrangement that involves giving rights in your digital work to someone else.  Just to see if you were listening, can you please now list what they are……….  Ok, I thought so.  I had better summarise them then:

• What specific rights are being given, and what rights retained?

• In what circumstances do the rights revert?

• What restrictions are there on my exercise of retained rights?

• Where (geographically and cypergraphically – made up word, but I think it works) can the rights be exercised?

• What reporting will I be getting?

One aspect of managing your digital rights, is knowing who has what rights, where, and for what.  Obvious problems can arise if, for example, you own the rights in a TV show which you have licensed to:

• Nat Geo for video on demand for the territory of the world for a term of 2 years commencing 1 January 2010; and

• you license the same show to ABC for all forms of television distribution for Australia and NZ for a term of 2 years commencing 1 December 2011. 

There is a territory and term crossover for a month at the end of the Nat Geo term.  And because the VOD rights granted to Nat Geo are a sub-set the television rights granted to ABC, this would put you in breach of both licenses with financial liability and pissed off licensees.

So you need to conduct audits of your work from time to time to ensure there are no double ups.  It also important to do this to make sure no licensee is breaching the terms of their deal by, for example, continuing their use beyond the end of the license term, or engaging in a use that you have not granted to them.

The first thing to do then is identify who you have granted rights to and then list all the relevant aspects.  Using a spreadsheet or table type of format works best.  As a broad brush, consider the arrangement under the “3 Ts” – term, territory, and type.
 
Next, identify whether the rights granted are exclusive or non-exclusive.  Non-exclusive means the same type of right can be granted to different entities in the same territory.  But of course you can’t grant non-exclusive rights to one person and then exclusive rights to someone else.  For example, if you are a photographer you can’t grant exclusive license rights in a photograph to an advertising agency if the same photo is already under a non-exclusive license to an online photo library like Getty Images. If you are musician you can’t have a track on iTunes and then grant exclusive rights in it to a record label.  However, you can grant non-exclusive rights to Amplifier at the same time as you grant such rights to iTunes.

Once you have all the information assembled, you can carry out the audit.  Check to make sure there are no conflicts between different licensees.  At the same time, check to see what, if any, rights have been retained.  It’s also a good idea while you are at it to check the circumstances in which the rights will revert back to you.  If someone has rights and they are not actively doing anything with them you might want to try and get them back and give them to someone who really wants them!