Digital Book Publishing RightsNational and international book publishing rights
Negotiation of Ebook Rights, Future Technologies Clause, Ambiguous Contracts, Book Contracts)
RIGHTS OF E-PUBLICATION: MULHUGH: Let's first talk about e-rights. "As a rule, the concept of online publishing is loose. What is your definition of "electronic publishing"? It is difficult to understand how publishing is done because it changes so quickly. In simple terms, electronics publishing is the transformation of two-dimensional works into digital codes and the distribution of this information to the consumer via the Internet.
These include for example interactivity in education or amusement CD-ROMs, DVD's, on-line data bases, ebooks, even cassettes. MAHUGH: From the publisher's point of view, is it best to rent a work to obtain all rights from an artist, even if it is done electronically? There are two basic ways in which publishing houses can obtain rights, as I have explained in my book.
But with a licence you don't get title to the definitive work - only certain, contractually agreed, restricted rights. According to copyrights, all rights not explicitly conceded to the publishing house remain with the authors. If you do not receive any explicit granting of e-rights, you do not have the right to use these rights.
When you look at older publishing contracts, you will see that many of them have not considered e-rights. Such cases are educational for digital and multi-media publishing houses. They make it clear that the publishing house bears the brunt of the negotiations on e-rights. E-rights are not part of the bundle when you purchase rights.
If necessary, publishing houses should consider acquiring rights on a rental base. In the case of a "rental work", the publishing house follows in the footsteps of the originator and becomes the originator of the work for copyrighted use. Not all works, however, are considered rental works. Temporary work can only occur in two situations:
In order for the second kind of work to be classified as temporary work, it must also be one of the nine strict copyright law clauses. A novel, for example, can never be a loaned work because it is not on the shortlist of nine works that are considered for temporary work post.
It is therefore not enough to describe a work as temporary work only. Copyrights are very formalist when it comes to work for rental contracts. There is a dispute among the court, for example, as to whether a rental contract that has been concluded after the start of work is effective. It is therefore important that all leases include a backup transfer of copyrights.
In the case of a duly completed order, the originator shall remain the writer, but the publishing house shall be granted all rights. However, a demanding right owner will oppose any attempts to purchase rights on the grounds of a rental work or a buy-out. MAHUGH: Is there a particular programming terminology that a publishing company should use to protect the e-rights in publishing contracts with writers?
In order to anticipated further progress in the field of technologies, the rights granted should give the publishing house the unique and exclusive right to use and modify the work and to allow others to use and modify the work by any means, "whether it is now known or is subsequently invented". "For example, if in fifty years' time the chosen media were no longer digital or hard copy, but rather digital, if the grantmaking provision were correctly formulated, it would not be important which media or which methods were used to document or use the work.
As one of the rights granted by copyrights is the right to authorise derived works - or arrangements - a distributor would also want to have the right to mix the work with other works. Publishing houses should work in close cooperation with their lawyers to formulate comprehensive rights that promote their interests.
MCHHUGH: What proposals do you have for publishing houses that put content on the web to safeguard their rights to their work? First thing editors should do before they post anything on the web is registrate their work with the U.S. copyright office. Publishing houses should also include appropriate copyrights and trademarks with their work.
Unfortunately, high speeds digital copiers of high qualitiy make it easier to violate copyrights. One of the things that makes it hard for someone to get a good belief infringing defence - this is not a defence at all, since unawareness is not a defence against copyrights infringements.
Furthermore, publishing houses should specify their guidelines for copy by publishing instructions for use. The information will be digitally numbered in the not too distant past so that holders of copyrights can monitor the use of their works in electronic form. Through the use of "intelligent" licencing technology, the digital dissemination of information will lead to automated direct debiting and crediting to users' digital money-account.
MacHugh-when downloading and reproducing footage from the web, is the footage copied proprietary? It is not the easiness with which the user can easily access or access information on the web, nor the fact that the information has been published in anonymous form, that places a work in the open area. Unauthorised contributions and republication of proprietary matter, if not use fairly, is a violation of copyrights.
Keep in mind that the same principles that govern writers, performers, creators as well as editors outside cyber space also hold true on the World Wide Web. Whereas digitisation (i.e. the conversion of a book into bits), scan, computer networking and the web have made it fast and simple to copy book extracts from chapters, this does not mean that the copyrighted materials are not intact.
As the new technologies continue to adjust to our needs, so has the protection of copyrights. When they drew up the 1976 Act of Copyrights, Congress made room for technical progress by permitting the fixing of replicas of any concrete media "known today or evolving later". "ANNOUNCER: How should publishing houses address the issue of e-rights licences?
Which are the traps for e-rights license? Elicensing rights electronically in Europe, for example, is a problem because Europe, unlike America, does not respect the ethical rights of a writer. "Ethical rights" give writers the right to oppose changes to their work and the right to take possession - even after the transfer of their work.
May I point out that ethical rights continue to exist even after the expiry of copyrights and can be asserted by the copyrights' successors after the copyrights' deaths. It is important for writers and editors that even though the work was written by a US person, it can be legally protected outside the United States.
One more problem publishing face is where they can be sued. What is it? As publishing houses come into close proximity to a variety of jurisdiction, they may be compelled to protect a claim almost anywhere. It is important that the web has made it easier and easier for publishing accused to be prosecuted for infringing copyrights, trademarks, obscenities, libel and invasions of personal rights wherever they cause them.
MULHUGH: What are the keys to an eLicense arrangement for the publishing house? Some of the keys to an eLicense arrangement are similar to those of conventional license agreements. The main issue in the process of third-party rights licences for the creation and distribution of e-rights is which platforms (hardware or OS ) or market the work is licenced for.
Remember that all copyrights that make up a copyrighted work may be held by one or more persons individually. In addition to the rights to the hardcovers, there are also rights to commercial paperbacks, bulk markets and reprints. Every right is usually resold in pieces to one or more publishing houses to maximise the author's yield.
As digital technologies (and commercial practices) are evolving, publishing houses should also not be prepared to give wide rights. Certain licences may include an initial right to negotiate for non-secured platform or an opt-in that gives the licencee the right to acquire additional platform rights for a specified period of it. It is your objective as a licenser to provide temporary licences for a maximal remuneration.
Keep in mind that a licence may include the full range of copyrights or may be restricted to a particular medium, a particular marketing, a particular country, a particular language, a particular area or a particular time. MULHUGH: Many publishing houses now commission external firms to create a website. Which proposals do you have for the publisher in handling a website designer? While working with external website development teams, editors should consider who will own the final work.
The worst-case scenario is that the developers may stop you from modifying or upgrading the site without their consent. That is because the originator of a work is the first to have the right of origin. Therefore, the website design contract should state that the designer is an independant contractors and that the final work will be regarded as "work for hire".
When using someone else's work, you want to make sure that you have the right to use that work without violating that person's rights. Designers should ensure that the final work is not in violation of copyrights, trademarks, or the right to privacy or any other ownership rights. You should also exempt the publishing house from third-party rights to mental ownership.
When you choose to provide links to other websites, you should specify in your terms and conditions who will be held accountable for seeking approval from the owner of the websites to which you wish to provide links. MULHUGH: There comes a period during the life of a book when a book is no longer in great demand, and so the publishing house wants to outlaw it.
Which is a practicable contractual definiton for out-of-print contracts in the book agreement? Will a book be out of stock if there are no physical book duplicates and yet CD or sound files are available? If a book is out of stock, the rights usually go back to the writer. In today's digital world, where it' inexpensive and simple to copy chapter-long extracts from a book, the fact that a work is currently out of stock in a storehouse becomes outdated.
The digital saving of information as a bit and the end of fixed mediums as the preferred information formats for certain kinds of information means that there is no need for sold out book. Publishing on demanda, for example, enables the consumer to buy prints from distant sites linked to computer data bases. The" ultrahigh volume printing" also makes it possible for publishing houses to save and, if required, reprint titles online.
As the use of electronics is not a printed use, it may no longer make economic sense to reverse the rights to the number of titles in the deposit. In the event that an authors receives emoluments for the "electronic" sale of the work, the rights should not be withdrawn, unless the emoluments are below a certain standard. On the editorial point (favourable for publishers), an out-of-print provision could prevent the return of rights if the author's prepayment has not been made.
Even if a re-printed version is scheduled or an undertaking has been made with another publishing house to re-publish the work within a suitable time after the writer has notified the publishing house of his intent to cancel the contract, the rights should not be withdrawn despite the fact that the licence fees have decelerated to a rill. It is noteworthy that most ordinary out-of-print terms demand that the writer inform the publishers that he wishes to have the book reprinted by the publishers.
If the work is not reprinted within e.g. six (6) month after termination, the writer has the right, but not the duty, to cancel the contract. Authors' Guild's stance on e-rights is that for the purpose of "out of print" terms, e-rights should be handled in a separate manner, as a work may be available for an indefinite period of time in an e-data base.
This means that e-rights, just like printing rights, should fall back when use drops below a certain threshold. It makes sense to do this, provided that the rights are not withdrawn then. MHUGH: Do you have any further ideas or ideas for writers and their publishing partner in the areas of rights managemen? To put it briefly, your aim in purchasing rights is to gain as many rights as possible for the least amount of remuneration.
Your objective when you sell rights is to give temporary licences for maximal profit. Tell us about your book; what is the book and who is the audience: I am very pleased about the new book supported by the Publishers Marketing Association (PMA). In short, the Copyright Permission and Libel Handbook:
Wiley and Sons, Inc. ($15.95, Commerce Paperback) provides a step-by-step guide for writers, reviewers and publishing houses that provides information and tools to help writers and reviewers find their way through the bleak regulatory environment of preparation of a book or multi-media work for publishing. Section One, "The Copyrights Permian Handbook", contains a step-by-step guide to determining when approval is required and localization information for the localization entity authorized to issue you approval.
In addition, there are individual sections on the basics of copyrights, on the use of copyrighted material, on what is not covered by copyrights, on the use of works in the open media, on collaboration with collaboration partners and on the deletion of multi-media rights. They may not be processed, changed or otherwise changed, unless the explicit approval of the authors has been obtained. Lloidd J. Jassin is a New York-based publishing and consumer advocate.
He' s co-author of the bestseller Copyrights Permission and Libel Handbook: Mr. Jassin has spoken at length on contractual negotiations in the publishing and consumer goods industry and regularly gives presentations on contractual and copyrights matters affecting authors. An advisor to the Publishers Marketing Association and Vice Chairman of the Small Press Center.
Mr. JOHN B. MacHUGH is a publishing house manager advisor and industrial editor. He was als Publisher und Director of Programs tätig.