What licensing industry leaders were willing to say behind closed doors.
By: Frank Bilotto
As we’re winding up the first year of the Content Licensing Brief Newsletter, I think it makes sense to look ahead by looking back at the biggest milestone of the year for us, the Content Licensing Institute’s First Annual (or semi-annual) Executive Roundtable.
Unwarranted Arrogance Exposed
When Paul Gerbino asked me to moderate the roundtable, I thought, “Sure, I know our business well enough to put together an agenda and then ask the right follow up questions to keep it interesting and I think I can be entertaining when necessary to ensure the participants enjoy the day. This will be easy.” So, I happily accepted, and was prepared to walk into the conference center and overwhelm everyone with my knowledge of the business and satirical wit.
OK, so, I’m admittedly one of the most self assured, confident people you’ll ever meet. (Some would say obnoxiously arrogant, but let’s leave my family’s opinions out of it.) It is rare that I’m ever in a room where I feel inferior. However, and this is hard for me to admit, I was intimidated by the expertise and wisdom in the room. The invited participants to the roundtable were a blend of major publishers, premium niche publishers, licensing veterans and copyright experts. When the day began, I felt like Ralph Kramden whenever he felt inferior. “Homina, Homina, Homina.” If you don’t get the reference, before reading any further click here for a 6 second clip. https://www.youtube.com/watch?v=wK9odsWwfIo
As I began the discussion, I quickly found that all of the participants, no matter how much their expertise was superior to mine, made me feel like I was essential to the Roundtable’s success. Candidly, everyone was so generous and forthcoming with their wisdom that I genuinely believe a Chimpanzee could have served as the moderator. The participants seemed to effortlessly engage, either agreeing to or debating all of the issues on my agenda. The discussion often advanced without my assistance.
The Chatham House Rule
So, I’d love to tell you all about the Roundtable, but I can’t. One of the incentives to get the people we wanted to participate was to implement the Chatham House Rule. For those of you who don’t know what that is, The Royal Institute of International Affairs, commonly known as Chatham House, is a British think tank based in London, England. In order to foster open communication and an honest exchange of ideas, participants in a meeting governed by the Chatham House Rule are free to use and share the information received in the meeting, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.
Sponsor Anonymous (to our readers)
Sorry, but I can’t even tell you the location of the Roundtable, because that would reveal one of the participants. But I do want to thank him, again, for providing the top floor conference room of a Manhattan skyscraper, with 2 story windows that provided a 180 degree view of the world’s most famous skyline as a backdrop.
I would be remiss if I did not also “semi-publicly” thank our sponsor, without whom the Roundtable would not have happened. The leap of faith taken by our sponsor on the first ever Roundtable was both generous and gracious. As the Executive Roundtable grows in importance to our community, our first sponsor will always have a special place with us.
If you’re invited in the future, you’ll come to know who both of the aforementioned contributors are.
AI is the new Black
The Roundtable was intended to be an honest exchange of ideas, challenges and solutions in today’s publishing/licensing world. I can modestly say, it was an undisputed triumph.
The first and most important topic of the day, and the one that continued to be injected into all other topics throughout the day, was the impact of AI on publishers. We quickly learned that not all publishers see AI in the same light. Many see AI as a threat to their existence. Others see it as an opportunity to capitalize on the revenue opportunity before it evaporates. The most memorable statement of the day was, “There won’t be any deals to make in 5 years.”
You know I’ve been saying in this newsletter for some time that publishers are selling their future existence for the “short-end money” (remember the Brando line from “On the Waterfront”.) But not all the participants agreed with me. Many believe carefully crafted licensing deals with AI companies can be both profitable and sustainable.
Better tell them it’s mine
Despite the fact that I think accreditation is meaningless in a licensing content to an AI company, (after all, when was the last time you checked the authority of a source of Google search results?), many believe accreditation for use of content will not only preserve the value of the brand, but drive additional revenue to the native publisher’s site.
Licensing models that pay a publisher for user consumption of AI generated content, which utilizes the publisher’s content as a source to create the AI generated content seemed to be universally accepted by the participants as a way to build a sustainable business model going forward. The technology is available today, but publishers need to demand that AI companies take the necessary measures to incorporate them into their business models. Going forward, we’ll definitely keep you up to date on the technologies leading the way in this space.
Does anyone know what Fair Use is?
This led to a discussion of copyright infringement. We know that courts have been unclear and indecisive on this issue to say the least. This is compounded by the fact that major AI players have co-opted the term “fair use”. I’m still in disbelief that fair use has evolved from an affirmative defense, which it’s been for 50 years, to a right claimed by AI companies for use of unauthorized, unlicensed content. There is still no precise definition of fair use. In fact, you should be looking for an article by CLI on this very subject early in the new year.
To Sue or Not to Sue
Registration of copyrighted material allows publishers to pursue copyright claims against alleged infringers, but the cost of doing so without any certainty of outcome is prohibitive to publishers. It may be easier, less costly and more effective to use tools like cease and desist letters and threats of legal action to discourage unauthorized use.
A brilliant idea of simply sending alleged copyright infringers invoices for use of content, which included retroactive fees has been successful for at least one of the participants in the Roundtable. Every publisher in the world should begin doing this immediately. Even If you don’t receive any money for your effort, you’ll be putting infringers on notice that their conduct will no longer be tolerated or ignored.
Just tell me what you’re doing with my content
Royalty and content usage reports, as you might expect, triggered lively discussions on all sides of the issues. Publishers said that while they understand the limitations on specific information provided, there shouldn’t be restrictions on providing general demographic, geographic or industry type reporting to better enable publishers to evaluate existing licensing agreements.
There’s more
A number of other issues were discussed and debated in detail, such as international licensing, minimum guarantees, impact of newswires and media monitoring companies, taxonomy and curation challenges and the uniqueness of licensing STM and scholarly content. By the way, look for an article on licensing scholarly content next year, as well.
As good as cash
The big take away from the Roundtable is that content/data is currency. Publishers must be more diligent than ever before in protecting it, strategizing with it, knowing who is using it and what are they doing with it, and determining who should be using it and why. This topic will be an essential focus of CLI in 2025.
My definition of Tolerance
Allow me to end the year by wishing all of you a Merry Christmas, Happy Hanukkah, Joyful Kwanza, a safe Return of the Sun God, or any other holiday that you celebrate this time of year. And if you don’t celebrate anything, find something to enjoy the season. While there are some that would probably prefer that I simply say Happy Holidays, as much as I try, I’ve never been able to conform to political correctness. Celebrate however you wish, but by all means, life is short, so celebrate something!
On a serious note, we at Content Licensing Institute extend a heartfelt thank you for supporting our mission. We’re gearing up in 2025 for deep dives into the issues that face content licensors and licensees. Until then, wishing all of you Peace and Happiness this season and always.
Frank Bilotto is a licensed attorney with over 25 years of experience in commercializing intellectual property. He was instrumental in creating The World Reporter in 1999, an alliance of 10,000 daily newspapers, and the first such content alliance in the digital content space. He’s negotiated more than 1,000 intellectual property licenses with the world’s largest organizations, including Comcast, Google, BBC, NewsCorp, Gannett, ESPN, NBC, CBS, ATT, Dow Jones, Thomson Reuters, Facebook, Microsoft, Nike, Adidas, Hewlett Packard, Knight Ridder, Capitol Records, MGM and Paramount. Frank’s passion outside of content licensing is trying to love his neighbor as himself. (Unfortunately, he fails too often.)