Science Abstracts and Scene Clips: What the AV Sector Can Learn from Science Publishing

Jun 07, 2019


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Article ImageThe EU’s new Digital Single Market Directive will cause a disruptive change in the relationships among digital platforms and audiovisual (AV) rightsholders such as studios and licensees. With respect to infringing works, the Directive creates a sliding scale of protection for creators and responsibilities for platforms based largely on the size of the platform. In general, neither the AV communities nor the platforms are happy with this aspect of the Directive, but regardless, it is now final, and everyone will need to learn to live with it in whatever form it is enacted by member states. Living with the Directive implicates licensing. So what might the long-form AV sector want to license, and how can licensing support business goals? Here, there are lessons to be learned from that most unentertaining, non-sexy, no red-carpet industry: science publishing.

Peer-reviewed scientific articles are comprised of a number of parts, typically including the abstract (summary of the article and its conclusions), the text of the article, methods and materials section, and references (typically endnotes citing relevant publications). In 1996, before Google was founded and the transition to browsers from “searching gopher space with Veronica” (look it up, kids) was starting in earnest, science publishers began moving online. Unlike AV, which required faster and better data pipes than were generally available to the public, text-based works were more internet ready at the time, and researchers were early adopters of the web. Like AV, titles were sometimes transferred, companies merged, URLs changed, and no one wanted dead links, so some system was required.  

In 1999, my then-employer John Wiley & Sons, along with another then-independent publisher Academic Press (now owned by Elsevier), launched an initiative which became known as CrossRef.  Publishers wanted users to be able to find the official version of record (VOR) of an article within normal user workflows. To do this, they needed a system of persistent identifiers, backed by metadata standards, which would ultimately enable identification and linking of online content. The idea was to enable linking from references in an article on one publisher’s platform to the official VOR on any other publisher’s platform. Using the Digital Object Identifier (“DOI”) standard – the same standard underpinning the EIDR standard used for film and television -- each article was assigned a unique number. With this number, a resolver operated by CrossRef links to the article on the fly, regardless of the source.

At the outset, Wiley and Academic Press had a challenge; the solution of which may show a new path for success in the AV sector for longer-form works. In 1999, online articles were available by subscription or, in a few cases, available by the article for a fee. The movement that is now known as Open Access (OA) did not exist. The publishers were concerned that if a researcher clicked on a link, there needed to be something useful at the end of the link. Until this point, at least in the case of Wiley, the abstracts were not openly available, and Wiley then (and probably still now) had a revenue stream licensing these for third-party reuse. In a decision in favor of what would now be called Open Science but then had no name, and for which the publishing industry is given no credit, Wiley and Academic Press changed how abstracts function. They decided that in order to make the reference linking useful, it would be necessary to rethink the purpose of abstracts and to allow abstract access to anyone on the publisher's site. Under this decision, the publishers decided to disrupt and partially forgo an existing business in favor of uncompensated uses in support of the researcher. And while the publishers could have easily required an article purchase at the end of the link, they felt it would be best to enable the researcher to first assess the value of the article by reviewing the question asked and summary answer, as provided in an abstract.  Those who distrust publishers may find it hard to believe that was how this was decided, but I was in the room. Today, abstracts are generally available from multiple platforms, and in the best implementations, provide links to the VOR and the ability to gain access thereto on publisher-set terms.

How does this relate to AV? Let’s compare an abstract to a scene clip, for example, the opening scene dialogue in Pulp Fiction between Honey Bunny and Pumpkin. They are both protected by copyright, although admittedly the clip is entitled to a higher level of protection. A researcher may read an abstract and decide that she needs to read the full article, or that it is not relevant, or that the abstract answers her question. A user might view the opening scene and decide she wants to watch the film, but it is unlikely to prevent her from buying it if she is otherwise inclined (the scene is way too good). Like abstracts, the clip raises awareness of the full work. Abstracts typically link to the official versions of the work. Unlike abstracts, and except with specific licensees such as with Movieclips, the clips do not link to the “version of record,” which could be a purchasing site, streaming site, Amazon.com, Netflix, a local site for the holder of rights in a territory, or any combination thereof.  This is largely because clips are posted by users, without the knowledge or consent of the rights owner (which is also often true with respect to abstracts).

The Directive requires that large platforms actively prevent the posting of third-party AV materials in the absence of a license. Let’s imagine that the platforms and the rights owners all have an interest in making money and providing services of actual interest to users. How would one go about scoping a license for secondary uses, similar to abstract licensing in science? First, the parties should define a set of uses that is not harmful to sales of movie tickets, or to the streaming and sale of full-length works, or to any other “over the top” services. These are the core business of the studios, so exclusions from a license might be based on the length of the clip, and could vary further by the age of the work (and must avoid spoilers in a post-release window). On the other hand, trailers, video that accompanies songs from the film, single scenes, excerpts of a defined length (e.g., no more than 5-10 percent of the work) used for comment, criticism, and instruction, and use of limited materials for mash-ups and other creative works, could all be on the table.  

Any such license would include payments/revenue share for the creators. Still, that might not satisfy the core needs of the owners. However, if the studios were to do what science publishers did, namely develop a comprehensive metadata database which can resolve to persistent identifiers, this license could get a lot more interesting. Such a system would ensure payment to the correct rightsholder in a given territory. A license would also specify the steps platforms need to take to prevent piracy, as opposed to leaving this for court battles.  It could provide notification to the rightsholder when the material is blocked or removed based on metadata matches. Most importantly, the system would enable links to be created on the fly to one or more destination sites where users could access the full official versions of content in a territorially aware manner.

The word “license” or some variant thereof occurs 103 times in the final Directive. It is not unreasonable to assume that at least some of the ambiguity in the Directive is designed to force parties to negotiate. While the big studios generally can negotiate for themselves, a pan-European license will cross territories where they do not hold rights. Independent filmmakers might not be big enough to get the attention of the platforms. Global platforms would prefer global rights, not just American and European, but Asian too.  Again, science publishers have generally shown a way here. Through fully voluntary collective licensing, or through aggregated licensing around standard terms, rights can be licensed efficiently, reasonable use cases can be supported, and revenues can be grown. This begins with full adoption of standards such as EIDR, and with the creation of a link resolver and system for metadata matching for content at upload. It will take years to fully develop and implement, but it is the cheapest, fairest, easiest and ultimately most profitable and proven mechanism for all concerned.  


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