The NAB Blog

Copyright, Territory, Classical Music and Audiobooks

By Nicolas Soames

1 August 2011

I don’t often write about real backroom stuff on this blog, but from time to time we get queries about why certain recordings are available in one country but not another. For example, our recording of Haruki Murakami’s best-selling novel Norwegian Wood can be bought throughout the world except the United States and Canada; Finnegans Wake can be bought throughout the world with the exception of the United States. Conversely, our recordings of H.G. Wells’s The Time Machine and The Invisible Man can be bought in the United States and Australia, but not the rest of the world.

I hope the following comments may go some way to answer these queries.

Copyright in literature is a very complicated thing. It need not be so, but it has evolved that way.

Naxos AudioBooks concentrates on the classics. That was our raison d’être from the start. But classics also encompass copyright works, be it The Great Gatsby or The Maltese Falcon or Howards End. So we have to navigate these waters.

The consumer sees titles they would love to get, but can’t because they live in the wrong country

The very first question to be asked is whether a work is in copyright or not. This varies from country to country but, generally speaking, in the U.S., copyright lasts for 95 years from the date of the first publication. Most of the rest of the world follows a different system: copyright lasts up to 70 years after the death of the writer. This can mean serious variations. For example, Virginia Woolf’s To the Lighthouse is out of copyright in the UK and most of the rest of the world next year – but remains in copyright for many years in the US.

Then there is the question of the right to make use of copyright works.

Now, the way copyright works in music, especially classical music, is relatively simple: being part of the Naxos music group, we are acutely aware of such things. If a record company wants to record Prokofiev’s Alexander Nevsky, it simply hires the parts from the publisher and gets an orchestra to record it. It can release the recording in whatever format it wants – CD or digitally only, or 78 rpm if it has a mind to – and distribute that recording in all countries in the world.

It pays a mechanical copyright which is essentially a fixed amount (this may vary slightly from country to country but is always in the same ball park) based on the selling price to a collecting agency such as MCPS in the UK or Gema in Germany. And that is that. It doesn’t have to worry about that recording crossing borders.

Alas, that is not the case with literature. There are very strict controls when it comes to books, whether that is books in print form, e-books – or audiobooks. The traditional explanation given for this is that it is often not ideal for one publisher to have rights worldwide: can a publisher in New York really effectively sell and market a book in Australia or the UK or any other English-speaking country, let alone non-English countries?

So authors’ agents work hard to sell rights for the same book to different publishers in different countries hoping that they will put their local knowledge to good use. Of course, the multi-national nature of so many big publishers means that, increasingly, works are sold to publishers who do have a proper infrastructure in the major countries of the world, and certainly the English-speaking countries.

Unfortunately, this set-up often does not serve a slightly tangential medium like audiobooks.

First of all, audiobooks generally command smaller sales than books. No one really knows, but an educated (or psychic) guess suggests a percentage in single figures of the hardback and paperback sales. So sales are relatively small.

Of course, it is considerably cheaper to take a text and print one in the UK and one in the US (even with Americanisation of spelling, though this is increasingly a thing of the past). But making an audiobook, (recording and editing) is an expensive and time-consuming business, and doing it twice is double so!

For real blockbusters, this is not a problem. Jim Dale became the voice of Harry Potter for Listening Library in the US, while in the UK Stephen Fry (recording for Cover to Cover, then the BBC, then Bloomsbury) reigned supreme.

This may be all well and good for a hit like HP, but having an audiobook of a literary work by, say, Rose Tremain or Julian Barnes becomes much more marginal. Is it really commercially worth doing two versions for the different markets? Not often. Of late, publishers have started to do deals allowing the use of the existing recordings to cross the Atlantic, which at least in some cases brings the audio versions of important books to the world. But territorial restrictions do mean that far fewer books are recorded for the audiobook medium than would otherwise be the case if agents were more willing to give world rights.

World rights are given from time to time, of course. We at Naxos AudioBooks now very rarely take on copyright books without world rights, because, simply, it is commercially unrealistic. But we have to fight for them.

Being an independent and specialist audiobook company, we don’t generate many new books ourselves. Actually, I think we are (virtually) the only company that regularly produces new texts especially for audio: Benedict Flynn’s King Arthur and the Knights of the Round Table has been one of our best-sellers from our very early days; and the recent releases of The Vikings by David Angus and Pirates! by Roy McMillan demonstrate that we are continuing to be creative! At least here, we don’t have any problems with territorial restrictions.

But the digital sphere of downloads is, in my view, pushing the existing system to breaking point.

First of all, Digital Service Providers (DSPs) led by Audible are essentially worldwide services. They can be accessed worldwide. Nevertheless, they have to follow the strict territorial instructions dictated by the publishing companies.

But this means that the consumer sees titles they would love to get, but can’t because they live in the wrong country. It is an issue that exists in many other internet areas; but a relatively simple and contained community like that of audiobooks should be able to sort it out.

However, I am concerned not just about territorial exclusivity, but performance exclusivity. As I mentioned above, anyone can record Alexander Nevsky, and we want different interpretations. Music is a performance art. It is a question of personal taste (and of price) whether we want to hear Yablonsky conducting the Russian State Symphony Orchestra or Abbado conducting the LSO. Surely, this could also apply to audiobooks.

It certainly applies to the classics. Who do you want to read your Dickens or Austen or Wilkie Collins? You have a choice! You can hear and compare the versions and consider the difference in cost. Surely, this could also apply to Murakami or Harry Potter. Wouldn’t you like to make your own choice as to whether you want Dale or Fry?

It should certainly apply to drama! I remember going to see one copyright holder of a prominent twentieth century playwright and was told that we couldn’t make a new recording of the work (a very famous play) because the rights were already taken, on an exclusive basis, by another audiobook company.

That is absolute nonsense, I said. A drama is all about interpretation – look at what happens in the theatre! He reflected and eventually agreed, and, by negotiation, we got the rights on a non-exclusive basis. So now you, the consumer, can decide which one you want!

Could this really not apply to Harry Potter or Murakami or even Jeffrey Archer? I have confessed in these columns (I think) that recently I listened to an audiobook of Jeffrey Archer in the gym. The reading was terrible. Truly terrible. Almost unlistenable. It was a pity because, though Archer may be a bottom-feeder (as in the fish that swim at the bottom of the sea) he can tell a good yarn for gym environs.

So, conclusions? Please Mr/Ms Agent, sometimes think in terms of non-exclusive world rights. This won’t always be necessary or advisable or even requested; but ask yourselves – will you (aka the author) get more money through selling one exclusive territorially restricted copyright… or in some cases, opening it up on a world non-exclusive basis.

The audiobook is a performance medium. Music has shown us the way it should work in a modern digital global economy.