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Overview of Best Practice recommendations for IPR and Business Models for Performing Arts Content

In January 2013, ECLAP published the report IPR and Business Models for Performing Arts Content - Best Practice Recommendations. The whole report can be found here, but we've summarised the recommendations on rights clearance and business models below. Please let us know if you have input, additions or comments. Are these guidelines useful for you, what is missing, do they reflect what you experience in your day-to-day work? We'd love to know, so we can improve the work we've done in our working group! Leave your comments on this page, start a forum discussion here or email to eclap [@] beeldengeluid.nl.


1. A three‐step model for clearing rights of performing arts content

The ECLAP three‐step guide for rights clearance is:
 

  • Step 1: What kind of access does my institution wants to provide to the content.
You need have a clear idea about what you want to achieve by clearing rights. Does your r institution only need to clear rights for one project the coming years, or would it serve you better to invest in developing a more generic agreement that makes it possible to show content online for other projects and purposes as well? Or even more ambitous: does your institution want to make content available for sharing and (re)use? The first Best Practice recommendation is: the more open and generic you can clear the rights, the better. Of course, this will result in higher costs in man‐hours and money in the short term. However, in the long run, making these open and generic agreements will greatly benefit your organisation, since you will not have to go through the same lengthy rights clearance process again and again. Secondly, even though it might be easier to persuade rights holders to say ‘yes’ to putting their dance pictures, musical recordings, or theatre scripts if you only allow educational users with a protected login, this can be frustrating for performing arts lovers who do not have the right access credentials.
 
  • Step 2: Who are the rights holders of the content?

When you've determined the permissions you need, it is important to find out who the rights holders are, if any. The rights status can be as follows:

  1. The institution holds all the rights
  2. The institution holds some of the rights
  3. (All) rights belong to third parties
  4. The work is out of copyright and thus falls in the Public Domain
  5. The rights situation is unknown
  6. The work is out-of-print

Performers, directors, choreographers often entrust institutions to take care of their works, but very often this does not entail transferring (most of) the rights. Complex layers of rights are present especially in audiovisual productions, where rights can lie with the director, composer of the music, author of the screenplay, but also with producers and performers. This will mean a large investing in time and effort has to be made in clearing rights. The same can be the same for orphan works and out-of-print works, for which a large-scale dilligent search is necessary. Only in few cases, a work is in the Public Domain, or the institution itself has acquired the rights. An important recommendation is that once the rights status has been determined, it is vital that this information is registered in your institution’s database.

 

  • Step 3: Which methods can I use to clear the rights of the content?
Rights can be cleared with third parties by striking individual or collective agreements, but also by persuading them to opt for open licenses. In cases where your organisation is the rights holder, providing access is not an issue. This is different for orphan works and out‐of‐ print works, for which a dilligent search needs to be done first to find rights holder. If they are not found, it can be a risk to then still provide online access. The Best Practice recommendations here are to register the agreements made; this is instrumental for keeping a central, clear overview of what can and cannot be done with this content not only for current, but also for future projects. If your organisation is the exclusive rights holder of content, choose open licenses. The choice depends on a well‐formulted cost‐benefit analysis and the willingness of the management to ‘open up’. If a work falls in the Public Domain, use the Public Domain Mark to make this explicit.

Visalisaton of the three‐step approach to clearing IPR.
 

2. Business models, revenue models, and overall sustainability planning

A business model forms the basis for determining how value is created. One model that is used frequently in the cultural heritage and public sector31 is the Business Model Canvas developed by Alex Osterwalder and Yves Pigneur. Their definition of a business model is:

“[It] describes the rationale of how an organization creates, delivers, and captures value.” (Osterwalder & Pigneur, 2010, p. 14).
The Business Model Canvas consists of nine building blocks, such as Value Proposition, Revenue Streams and Customer Segments, and puts the end user(s) at the core. Furthermore, revenue models are a crucial part of a business model. Ten of the most salient revenue models in the cultural heritage sector are discussed, such as Free/Freemium, Licensing and Public/Private Partnerships. These are used by inspirational projects and institutions like The Space, Institut National de l’Audiovisuel (INA) and Cinecittá Luce / Google Cultural Institute respectively.

A solid business plan does not only focus on possible business and revenue models for current projects and services but also contains a sustainability plan. This is necessary because the risk of only planning ahead for the period of a project is running is that it will quickly be discontinued once this period ends. The following four recommendations for sustainability planning are made:

  • Define metrics to measure revenue: Metrics can demonstrate the succes of a business. By regularly measuring aspects like revenue, amounts of views, reuse of data etc. it is possible to adjust and to evaluate it. Also, involve creators and performers in establishing metrics.
  • User studies: Users need to be at the core of new business models. The needs of users determine the kind of access that is required. Regular user research ensures a better access to collections.
  • Diverse revenue streams: Merely focussing on acquiring funding and hoping that this will be enough to sustain your project or institution will no longer work. A key factor is moving to diverse revenue streams, either in‐kind or financially, or pooling together with other institutions for renting server space for example
  • Organisational support: a project cannot be sustainable if there is no internal support for it from within the organisation itself. Before starting with a project, it is key to check with the Management Board and others that determine the multi‐year plans of the organisation if there is a sufficient interest in carrying out the project, even when the funding period is over.
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