To adequately explain his outlook on electronic rights, intellectual property lawyer Lloyd J. Jassim begins an interview with his definition of electronic publishing: “the process of turning two-dimensional works into digital code, and distributing that information electronically to consumers…. For example, interactive educational or entertainment CD-ROM products, DVDs, online databases, electronic books, even game cartridges” (“Electronic Publishing Rights: An Interview with Lloyd J. Jassin”). With such a broad definition, issues involving electronic rights are bound to become more complicated with every technological development.
There’s been no shortage of worry over electronic rights in the publishing world. New York Times vs. Tasini certainly proved that neither publishers nor authors would go down without a fight, as did the Google Book Search case. Random House v. RosettaBooks was another fantastic race, though this time it was publisher vs. publisher when RosettaBooks purchased electronic rights directly from authors of Random House books in instances where Random House and the authors did not include specific clauses stating that these rights were transferred to the publisher. The initial case and the appeal were both decided in favor of RosettaBooks. Between these three cases, publishers seem ever keener to keep electronic publishing rights for themselves, and for good reason. Just look at the growing anticipation for the Ender’s Game video game adaptation. Whomever controlled the rights for the video game–whether it was Orson Scott Card, or his publisher TOR–must have made a nice profit off the game rights sale to Chair.
And though it may not yet seem possible, publishers may one day look to ebook rights as a major and reliable source of income–if authors agree to sell those rights to the publisher to begin with. Luckily for authors, many professional resources online are already strongly recommending retaining electronic rights. The Author’s Guild insists that “authors should be compensated for electronic publication of their work, just as they are paid for print publication – whether the works are published as electronic books, reprinted on the Internet, included in a library database or made available in any other electronic format” (“Electronic Rights“). Writer’s Digest blogger Jane Friedman’s advice for writers of shorter works resonates clearly across all genres: ask for a nonexclusive agreement if archival terms seem too strict, make sure there’s a way to end the agreement if you aren’t satisfied with the electronic product, make sure non-compete terms are clear enough that the content can be reused in the right setting, and remember that works published in part online aren’t always ineligible for publication in print or in full ebook form later (“Handling Digital/Electronic Rights for your Shorter Works“).
Lawyer Ivan Hoffmann’s article “Issues in Electronic Publishing Contracts” points out a few places to be careful beyond the initial transferal of rights. First, the contract should define electronic rights, whether they are conferred or not in order to strictly state what is withing the boundaries of the agreement (after all, an author may not care about the video game adaptation of a memoir, but ebook rights may be essential the author’s sense of protection). For books that contain content licensed by a third party for the book, the contract must specify whether or not this content is already approved for a digital edition of some sort. Hoffman and Jassim both mention the out-of-print terms as a source of contention: Jassim states “reversion of rights tied to the number of books in the warehouse, may no longer make sense. ” Instead he suggests that “If an author is getting royalties for “electronic” sales of the work, then rights should not revert unless royalties fall below a certain level” (Jassim). Jassim also suggests that provisions should be made for cases where a reprint may be planned. Hoffman points out that an author’s decision to hold back electronic rights may still prevent the author from publishing the work elsewhere in electronic form unless a statement releasing such publication from non-compete clauses. Similarly, if the author has already published the book online, Hoffman sees it as very important to define whether first serial rights may still be sold–and thus granted (he links to another article for further discussion of this topic). Finally, the ever present question of royalties rears its head:
Given the relative newness of the business model for electronic publishing, the royalty provisions of the agreement should be examined to see whether or not they cover the potentially larger expense involved in publishing electronic versions, such as costs of conversion to electronic format. On the other hand, there may be other situations in which the costs to the publisher are in fact smaller than hard copy publishing costs, such as lack of need for inventory, storage and so on. Is the publisher paying the author the same royalties the author gets from more traditional, hard copy sales or are there provisions for some other rate of payment in this arena? In other words, if costs change, royalties should be adjusted, one way or the other. (Hoffman)
As with any right or subright, the owner of a book’s electronic rights is granted certain chances for success and takes certain risks: what if you publish the electronic version in the wrong format or too late in the season? What if no one buys it? What if you could have sold it to another publisher for more? Or hired your vendor for less? For authors, specifically, the risks of retaining rights always include not finding a good buyer or finding the wrong buyer entirely. If the three court cases above have taught the publishing world anything, it’s not to ignore electronic rights. And with the growing concern over other current issues in the industry, electronic rights are becoming an ever more important commodity for the publisher intending to stay abreast of the market’s demands.
