Mechanism in Translation and Distribution Rights

MECHANISM IN TRANSLATION AND

DISTRIBUTION RIGHTS

Atty. Dominador D. Buhain

Publishing is not only a tool of commerce but a vehicle for bringing forth understanding to the peoples of the world with their distinctive culture, language, etc. for the common welfare of mankind.

the world speaks around  seven thousand (7,000) languages.

The Philippines alone has almost two hundred (200) languages or dialects

the best and most blessed world environment for all should be forged not from hegemony but from a diversity of human cultures to ensure that the needs and value of all living creatures are better  served and taken into account.

The spread of ideas throughout the world for the consideration of the human populace in all stages and levels of intellectual attainment and understanding is the task of the publishing trade which is made possible through the facility of translations and co-publishing.
REX Book Store, Inc. (RBSI)

Presentation would include:

1. How to Initiate and Maintain Business Relationship with Foreign Publishers
2. RBSII ‘s Guidelines in the Recruitment  of Titlesfor Co-Publishing.
3. Translation (in relation to the South Korean experience)
4. Discussion of Licensing Arrangement in General such as:
   • Strategies to Attain an Agreement
   • Contents of the Agreement
   • Other Related Considerations

The RBSI is one of the Philippines’s biggest publishers of textbooks and related educational materials.

RBSI has published more than four thousand (4,000) titles of local authorships.

“the most comprehensive education provider in the Philippines”

In 2005, Rex Book  Store International, Inc. (RBSII) was established as the newest addition to the Rex Group of Companies.

Its objective is to enter into transactions involving foreign entities co-publishing,

outright purchase translation, etc. of its product lines and that of the foreign publishers.

The first step is developing friendship with foreign publishers.

Through  attendance at the member-countries’ book fairs and the corollary meetings being held therein,  publishers, notwithstanding language barriers  get to know

each other on a personal basis and eventually  learn about the others’ publishing programs and outputs, and identify those with whom they share common publishing agenda.

During the meetings, resolutions are passed to satisfy the above purposes

III.   RBSII’s Guidelines in the  Recruitment

                     of Titles  for Co-Publishing

1. The Offices for Early Childhood Materials and for Tertiary and Post Tertiary materials, identify the subject areas needed for co-publishing of foreign titles as they submit the respective listings to RBSII Head (Head) for the recruitment of titles outside the country.

2. Upon receipt of the list, the head communicates with at least three reputable publishers and/or distributors which carry the desired materials;
3. Upon receipt of evaluation/examination, the Head performs the following:

1. Checks  the following  data :
   • copyright year of the book/s;
   • edition;
   • coverage of subject matter;
   • illustrations, graphs, maps, tables, etc.;
   • accompanying supplements (if any).

1. Prepares recommendations on the titles which could be accepted for translation rights, reprinting rights, distribution rights, or editorial rights.

4. The recommendation is submitted to the Editorial Traffic Officer (ETO) to schedule the editorial evaluation.

5. The ETO submits the books for evaluation to either the Early Childhood Experience Division (ECED) editor for the early childhood materials or to the Editorial Tertiary and Special Title (E-TEST) Editor for materials relating to  tertiary  or post collegiate level.

6. The evaluation criteria to be considered by the Editor concerned are as follow:

1. alignment with the prescribed curriculum of the Department of Education (DepEd) or the Commission on Higher Education (CHED);
2. content of material;
3. language used;
4. illustrations, graphs, maps, tables, etc.;
5. other paraphernalia.

7. Then the Editor concerned rates the materials and makes the recommendation, whether it be :

–  publishable

–  not publishable

8. After evaluation, the ETO returns the evaluated materials to the Head together with the recommendation.

9. The Head acts on the

• If publishable, he/she makes a meeting with the foreign publishers and/or distributor/s or their official representatives to discuss the duties, obligations, and contracts in the buying of license and copyrights;
• If not  publishable, the head notifies  the foreign publisher/distributor or distributor  and inquires  on what should be done with the copy evaluated: whether it would be returned or retained.

10. Thereafter, the publishable-rated materials are submitted by the Head to the:

1. Marketing and Sales Coordinator for the marketability of the books, as evaluated by the Heads of the marketing units concerned (TMD or ECMD);
2. Top Management.

10.1     The following persons based on the sequence below would determine the appropriate  price:

(1)  the Job Estimator;

(2)  the Chief Accountant;

(3)  the Assistant Vice-President;

(4)  the Chairman.

11. The Head negotiates with the three (3) selected publishers/distributors whose examination copies are rated publishable, marketable and with price(s) within acceptable range.

11.1       Negotiations shall cover the following areas:

1. international guidelines on licensing agreement;
2. places or countries where the rights could be sold;
3. identities of the parties entering the agreement;
4. purpose of the agreement (for reprints, distribution, adaptation, etc.)
5. warranty that the licensee has the right to license
6. right to publish and print the book without infringing the copyright of the third person;
7. number of years during which royalty would accrue;
8. number of copies for distribution;
9. inclusion of all supplemental materials attached with the book, including its soft copy (CD), etc.;
10. other terms and conditions.

12. Tentative negotiations entered into by the Head with the three selected publishers/distributors shall be reported to Top Management.

13. Top Management approves the negotiations entered into.

14. The Head requests for a draft proposal or a draft of the licensing agreement.

15. Should there be further questions that need clarification, the Head confers/discusses the items with the selected publisher/distributor for clarifications and/or another negotiation.

16. The Head with authority from Top Management signs the contract in behalf of Top Management to the selected publisher/distributor.

17. Upon signing of the Contract between RBSII and the selected publisher/distributor, the Head negotiates with RBSI on License Agreement on the use of copyright.

18. The contract between RBSII and RBSI should include the following:

1. the identities of the parties concerned;
2. the purpose of the agreement (be it reprinting, translation, distribution, editorial  or a combination of any, or all of those cited);
3. the date and place of publication;
4. the time limit of the 1^st edition;
5. the consideration for the use of the copyright;
6. the materials to be provided by the proprietor to the publisher ( i.e., files, complementary copies, supplementary aids, etc.);
7. the warranty;
8. the term of execution of the contract;
9. ground(s) for the cancellation of the agreement;
10. the royalty percentages accruing for the local market and/or for the international market;
11. the procedures of modification of contents of the agreement.

19. Once the contract shall have been executed between the Head  and RBSI representative, the desired course of action would take place,  be it reprinting, etc.;

20. Observance of the workflows of the Product Development , Operations  and the Marketing and Sales Groups.

1. Translation Rights

one of the stumbling blocks is the diversity of languages

It is affirmed by UNESCO that there are seven thousand (7,000) languages and that the Philippines alone has already two hundred ( 200 ) languages.

1. Importance of Translation Rights in Producing More Titles

       as Exemplified in the South Korea’s Situation

In APPA’s 2007 Book Award,  95% or 83 titles were translations and co-publications (2 titles) submitted by Korea, China, Thailand, Japan, and Pakistan.

Korea submitted the most number of translations –   34 out of 90 nominated best books.

The recent history of the Korean publishing industry, valued at about US $2.8 Billion in 2005,  demonstrates for us in the developing world the momentum that translations provided for Korean publishers in the 10-year period 1997 to 2006 in order to attain a 135 % increase in the production of new titles.

In 1997, Korea produced 33,610 new titles.

in 2006, 45,521 new titles were published.

there were 6,129 translated titles in 1997, rising to 10,482 translations in 2006, or an increase in translated titles of 17% over the decade.

Translated titles comprised 18% in 1997, up to 23% in 2006.

In 2006, Korean translations supported the growth of the publishing industry in the following categories in terms of the percentage of books published within each category:

Philosophy              40.4%

Comics                    36.48

Children’s Books    34.18%

Religion                   26.2%

Pure Science            28.09 %

History                     24.66 %

Literature                  21.28%

Social Science          19.37%

the most popular categories were

Comics (2,731 titles),

Children’s Books (2,290 titles),

Literature (2.057 titles),

Social Science (1,257 titles).

These four categories accounted for 80%  of the total 10,482 translated titles.

We observed that the bulk of Korean translations were from Chinese, Japanese, and English publications.

1. Licensing

Licensing is a formal permission from a constituted  authority to do something, to carry on a business, profession, etc.

-It is also  a legal right to use another’s intellectual property.

Licensing of rights is the most common method of trading published  works among publishers.

Another form of licensing is through  the readership

Some publishers also license the serialization  of books in newspapers and magazines.

Academic journals have been offered in electronic format either  under individual title subscriptions or in commercial databases thus allowing the presence of comprehensive journal collections online.

• Advantages of Licensing

Those belonging to the academe  would be spared from the time-consuming paper research as they would be alerted on chosen fields of interest for them to access or download them.

Electronic subscriptions have the added advantage of reducing the need for storage space prompting  more college  publishers to make arrangements for the  digitization of their textbooks.

For the licensor, selling of rights :

generates additional revenues,

makes their  publications legitimately accessible in other countries and in varied forms

curtails piracy, rampant illegal photocopying, and extends the reputation of the  authors and publishers to other countries.

On the other hand, the buyer of rights or the licensee has enabled to produce quality books at minimal development cost, to gain added value from brand equity, and to make more books available in a greater  market.

VIII.   General Guidelines on Licensing

1. Strategies on the Issuance or Acquisition of Publishing License

1. Awareness of marketing and distribution channels.
2. The cost of adaptation, translation, printing, marketing and selling the book shall be at the expense of the licensee.
3. The licensor shall handle the cost of publisher’s conceptualizing, writing and developing the product.
4. Royalties shall accrue to the licensor.
5. The total cost of licensing should be lower than the selling price in order to have profit.
6. The provisions of the agreement must be presented to a legal officer to ensure its legality.

1. Terms and Conditions of a Licensing Agreement

1. Names and address of the parties entering into the agreement.
2. The particular rights of the publication that shall be licensed.
3. The places or countries where the licensed publication(s) could be sold.
4. The agreement must be able to define the purpose ( be it an exclusive right to translate, reprint, adapt, sell, or distribute)
5. The licensor is the owner of the copyright and has no legal impediment to enter into a licensing agreement;
   • The right of the copyright owner on the book shall not be affected by any agreement entered into by the licensee;
   • The copyright owner has no legal impediment on the right to translate and print the book;
   • The copyright owner shall have the right to translate and publish the book provided it shall not infringe on any right belonging to the third party;
   • The agreement shall determine the terms and conditions of contractual relationships;
   • It may be stipulated that the agreement should automatically be extended if there are existing copies one month before the expiry date.

6. The duration of the agreement and the compliance of certain conditions to further extend the agreement.

7. The quantity, price and other considerations agreed upon by the parties.

8. Royalty rates, dates of payment and advances against royalties and minimum guarantees;

• The publisher shall bear the bank charges of remittance and encashing a check;
• The amount payable shall be the prevailing rate of bank exchange during the time of payment.

9. Copyright notices and the language that the licensor requires.

10. Publication releases:

• The publisher shall publish the first edition of the books within the timeframe set by the parties;
• Should the publisher realizes  that the first edition of the books could not be published within the time limit specified above, the publisher would immediately notify the proprietor  for whatever remedial measure(s) would  be undertaken;

11. Instances when the rights are reverted to the licensor:

11.1   Expiration of  the agreement;

11.2   Check payment  is dishonored;

11.3   The book is  out of print;

11.4  If there should be falsehood in the actual sale of  the books, the proprietor shall ascertain on whether or not to terminate the agreement with notice to the publisher;

11.5 Default in the performance of its obligation under the agreement, the proprietor shall ascertain on whether or not to terminate  the agreement with notice to the publisher.

13. The particular country’s laws that shall govern the agreement and where and how arbitration would  take place in the event of a dispute;

12.1   The agreement shall be interpreted based on the governing law(s) of the  country;

12.2  The agreement shall specify which law(s) of the country to be followed in  interpreting its  provisions.

1. Other Guidelines on   Acquisition of License

1. Develop trust and confidence in your partner but credentials must likewise be scrutinized.

1. Guidelines in Licensing Publications with Brand Equity

1. Ascertain whether or not a particular brand equity would have impact on other cultures and fashion.
2. Ascertain the most lucrative market in buying and selling publications with brand equity.

1. Guidelines on Buying, Selling or Distributing Books

1. Participate in book fairs and from the array of product lines, choose the best.
2. Ascertain the best profile of your partner to satisfy your needs.
3. Conduct based on budgetary allocation the most effective marketing and promotional activities.
4. Based likewise on budgetary allocation, ascertain the desired profit accruing during a particular time and place.

1. Guidelines Preparatory to the Close of the Sale

1. Fair play and good faith should be the underlying considerations of a negotiation.
2. It should bring mutual benefits to all the parties concerned.
3. The three (3) criteria that should be observed during negotiations:

• position;
• expertise;

1. Acts During the Time of the Closing of the Sale

1. Clarity on the proposal and counter proposal.
2. Thorough discussion should center on the details of the first proposal.
3. Difference between the offer and what is desired.
4. Soliciting from the other party what to give in return to equalize the difference .

(Note:  Based on experience, it would be more practical not to accept the first offer even though it jibes with what you desire as the agreement could still be further improved.)

5. React cautiously to offers by:
   1. a negative response;
   2. a positive response;
   3. a conditional response.

1. Closing the Deal

1. Verify what have been agreed upon
2. Summarize and seek an affirmation.

1. Attainment of the Best  Possible Arrangement

1. Goodwill and business wisdom dictates that the licensor should be able to offer the best market coverage like distribution of the reprinted copies to all non-English speaking countries other than the country of the licensor.
2. Licensee should be able to negotiate for the lowest cost arrangement by using newsprint instead of bookpaper, perfect binding instead of smythesewn, etc.;

2.1   If you would cater to India, Indonesia or Thailand, where the publisher’s edition is perceived to be too expensive to import, the approach mentioned above  could be considered;

2.2 Dictionaries and encyclopedias like that of the Merriam-Webster, Encyclopedia Britannica,  etc. could not be  licensed locally due to rampant piracy;

2.2.1   Exclusive distributorship and reprinting the same in English with additional chapters in the local language may, however,  be the subject of a special project.

3. Licensor should provide original masters, their texts in film or electronic file, so that the licensee will have the benefit of amortizing the cost of the book to lessen the production cost.

4. The grant of lower royalty rate could be requested for co-publishing to lessen the cost.

Conclusion

Please take note of the important elements of co-publishing:

• specialist staff to implement and monitor your co-publishing program;
• a legal adviser who is well versed in business and intellectual property laws of other countries.

We express our thanks to the Taipei International Book Foundation for giving support to the ABPA in its effort to promote  transnational co-publication programs in Southeast Asia