Paperless Publishing-Colin Haynes - Chapter 9 Section 1

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THE legal wrangles over intellectual property rights in the new media have already begun. The National Writers Union in New York has gone on record as believing that the rights of hundreds, if not thousands, of writers are being violated by publication on CDs and in electronic databases, without either their permissions being obtained or appropriate royalties being paid.

Ten members of the union filed a federal lawsuit in late 1993 against some of the biggest names in publishing, claiming that their copyrights were being violated. Many writers, artists, and photographers who have not already specifically signed away electronic rights will find that they have little recourse because their print contracts, going back many years, have clauses permitting publishers to use works in new editions, or in compilations, without print or electronic media being specified. Most book contracts have, for a long time, embraced electronic rights without additional royalty advances to authors.

Until recently, most authors never even considered that nonbook rights to their works might have any value, apart from the remote possibility of an audio book edition, or a movie or broadcasting option.

 

A number of test cases over the next few years will eventually help to clarify some of the gray areas of the copyright law in these respects, but expect confusion to reign for a considerable period. Already, author contracts are being drawn up to embrace potentially lucrative electronic rights, without it being clear how these will be implemented in an increasingly uncertain publishing environment. Even the definition of publishing itself is changing.

In the case of new works for which the creator has not specifically signed away rights, or which did not result from assignments on a work-for-hire basis, the author's situation is legally clear. You own the rights to your creative works immediately when you create them, whether you have registered the copyright or not. Under the international conventions, you don't even need to affix a copyright

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notice, although doing so and going through a registration procedure can greatly strengthen any claim that you might have to make. Of course, enforcing your rights, particularly against a fly-by-night or deep-pocket publisher, can be an expensive exercise in futility.

 

While some aspects of electronic publishing represent a threat to the owners of intellectual property rights, it can also be a blessing. Responsible publishers are generating additional incomes for writers, artists, and photographers, while some compilations are actually making it easier to identify the owners of copyright material and ensure that permissions are obtained and appropriate fees paid. When MPI Multimedia in Illinois compiled their CD-ROM Kids in History and three other titles, for example, they tracked down and obtained permission where necessary to use over 1,000 individual film and video programs, and over 12,000 hours of stock and archival footage.

Artists have had windfalls from the new media when reputable publishers have included them in electronic compilations. For example, Andean Pan flutists and other Bolivian artists have been receiving royalties from Aris Entertainment's multimedia CD title Tropical Rainforest--income and exposure that would probably not have come their way otherwise. Some of the more responsible publishers of multimedia clip art, texts, and video collections have gone to enormous lengths to establish rights and obtain appropriate clearances. Inevitably, others have not bothered, so there is a great deal of material being circulated that could cause potential problems for end-users.

The specialists in publishing who deal with intellectual property rights frequently get together to learn--as is their legitimate intent--how to maximize the profit potential of those rights for the publishers who are their employers and clients. One of the most important of these gatherings is the annual rights directors meeting at the Frankfurt Book Fair, which, like similar events, is becoming dominated by electronic rights issues.

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The typical author, writer, artist, and photographer has little knowledge of the issues and trends being discussed, but guidelines are being set which could have a major impact on your profession and income. Already, you can see the results in author contracts being drafted to protect commercial publishers' interests in electronic media by broadening the range of rights which the publisher, rather than the author, controls.

At the same time, many publishers are seeking to extend contract periods and not relinquish control of rights back to an author as quickly or readily as before when a book goes out of print. It used to be fairly easy to decide that a particular title had reached the end of its commercial print life, and it made better business sense to remainder (sell off at a knock down price) any copies left in inventory.

Some contracts and publishers' practices go further and permit the author to have the litho film from which the book was printed--if the printer can actually find the film, which is often not the case in practice. In the past, with scarcely a second thought, helpful publishers' staff members have given their confirmation that, under the terms of the original publishing contract, all the rights have reverted to the author. The assumption when only print revenues were at stake has been, "if we can't make any more money out of this title, the author is even less likely to make a success of it." In fairness, the attitude among some publishers has also been, "although it's costing us money to keep this title in print, it is a creative work in which the author has a substantial personal stake which may well not have been paid off by our efforts, so we should give him or her every opportunity to try to make more of it than we have been able to do."

Now, everything is changing--particularly the concept of a book going out of print. If it exists as a title in an electronic format, it need never go out of print, nor impose significant costs on the publisher to keep it available for the occasional sale. The whole marketing and distribution functions for a backlist are very different in the new media than they are in print.

For valid business reasons, many publishers now want to control all rights, particularly electronic rights, for as long as they can. In this fast-changing technology and with the fickle consumer trends it

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generates, it is very difficult to decide when a title has reached the end of its commercial life. Nor, with the billions being wagered on the information superhighways, do publishers want to risk losing control of material that, in some form or other, might become profitable in the future because of the unpredictable demand for product to flow along those highways.

Only a small fraction of the hundreds of services or channels that will be piped into homes will be able to afford expensive productions featuring live actors. There could be a strong demand for a new kind of piped television, essentially computerized multimedia projects authored by individuals or small independent companies catering for niche markets. An author with specialized knowledge of a particular subject and a PC might spend a year turning one of his or her books into such a production and generate substantial revenue from it. The original book might then gain a new lease on life in print.

It will be a brave soul in a publishing house, therefore, who returns rights to authors as readily as in the past. Such an individual risks being criticized for letting go a work that had unsuspected earning potential in another medium.

 

In a perfect world, many authors would be quite content to have a powerful and well-informed publisher shepherding his or her title through the rights minefields of multimedia. But this is not a perfect world, and publishing staff are only human, preoccupied with putting their best efforts into the bestselling, newest titles, and leaving the backlist largely to fend for itself.

So, as an author, you might find yourself locked into a situation where your manuscript has reached the end of its print cycle--which is all that you have been paid for--and you can do nothing to get it moving in another media direction. The publisher is unable or unwilling to explore the earning potential that you feel, rightly or wrongly, your work still has in other media. You might feel that, in its present form, or with the updates that you are able to give it, your work could really fly in the new media, but you are unable to do

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anything because you have a contract that effectively imprisons your work, and any derivatives of it, in your publisher's dead files.

 

Rights signed away by time rather than results

There have already been movements in the publishing industry to establish ten years as a minimum period for which a publisher should secure rights. There are very good arguments for this coming from publishers on both sides of the Atlantic, who point out that it always used to be common for authors to sign away their rights for the same lengthy periods that the copyright in a work could be protected. Only in comparatively recent times has it become the norm for authors to do deals for fixed terms of five or ten years, with contracts that gave both publishers and authors ways out of the relationship if the work did not prove profitable in print.

Consequently, authors need to be very aware of what is going on in the new media. Remember that your works might have publishing opportunities in places and in media that you just cannot anticipate. A title might well stand to make more in other media than it does in the print editions that are covered specifically in the author contract.

 

Agents are not necessarily a protection

Unfortunately, many agents are not as knowledgeable about the new media as they should be, and because of the lack of regulation in this profession, it is easy for almost anyone to set up a literary agency to try to get into the action. Consequently, as an author or other creative artist who feels fortunate to be handled by an agent at all, you might be saddled with one who does not fully comprehend the potential importance of the clauses in a contract that relate to electronic media rights.

After considerable experience with agents, and speaking to other authors who have had unfortunate experiences, it is often difficult to assess where many agents put their long-term interests: their author clients, or their publisher clients. Regulated real-estate agents have

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