RE: Re. Hathi Orphans?

[<jean.claude.guedon@umontreal.ca>]

I beg to differ. This is not true of all European publishers. I 
published a book with Gallimard in paris, and i can tell you that 
this reversion of rights was not part of the contract.

Do not confuse the Anglo-American traditions and customs with the 
whole of the world...

jean-Claude Guedon

Le vendredi 14 octobre 2011 21:23 -0400, John Cox a ecrit:

> Sandy Thatcher is absolutely right in his description of the 
> reversion of rights to the author when a book went out-of-print 
> in the print era.  US and European publishers were singing the 
> same song on this topic.  It was, and still is, standard 
> practice to include a clause in any book contract that 
> automatically reverts rights to the author if the work had been 
> out-of-print and unavailable for more than an agreed period (12 
> months or two years). Whether the author has assigned copyright 
> to the publisher, or granted exclusive publishing rights while 
> retaining copyright, makes no difference; the rights granted 
> revert to the author.  The real problem with orphan works is 
> that the author may be untraceable, or that his/her successors 
> in title (if he/she has died) may be difficult or impossible to 
> trace.
>
> The basic legal and contractual position has not materially 
> changed.  What has changed is that technology (internet, 
> e-books, digital print-on-demand technologies) means that books 
> may remain "in print" and available more or less forever. 
> However, if the publisher still maintains the title in print, 
> it is not usually an orphan work with an untraceable 
> rightsholder.
>
> The problem lies principally with untraceable authors or their
> executors, and with those publishers that have not maintained
> full rights files on older works, perhaps through mergers and
> acquisitions, or - let's be frank - incompetence. Simply to
> generalize and point the gun at "publishers" in general is
> misleading and unhelpful.  The problem is more complex than that.
> Otherwise we would have solved it.
>
> John Cox
>
> Managing Director
> John Cox Associates Ltd
> Rookwood, Bradden
> Towcester, Northamptonshire
> United Kingdom
> E-mail: John.E.Cox@btinternet.com
> Web: www.johncoxassociates.com
>
>
> -----Original Message-----
> From: owner-liblicense-l@lists.yale.edu
> [mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Sandy Thatcher
> Sent: 14 October 2011 00:39
> To: liblicense-l@lists.yale.edu
> Subject: Re: Re. Hathi Orphans?
>
> The reality is that, until digitization came along, publishers
> generally reverted rights to authors for book that went out of
> print and no longer had any interest in their copyright status or
> ownership. In that era, publishers had an interest only in
> "orphan works" they wanted to reproduce portions of beyond fair
> use, and they had no systematic interest in researching the
> status of orphan works beyond those whose rights owners they had
> a need to track down.  One complication during that era is that
> some publishers were merged into others, or went out of business,
> and the ownership status of works whose copyrights had not been
> reassigned to authors before the merger or closure sometimes
> ended up being murky.
>
> The advent of digital printing in for the form of POD, together
> with the creation of the "long tail" enabled by Google, changed
> everything early in this new millennium. Publishers no longer had
> much incentive to revert rights because, technically, no book
> ever needed to go "out of print."  In fact, some publishers tried
> to have reverted rights re-transferred to them again, so that
> they could reissue books as e-books and/or in POD editions. Those
> works for which the ownership status was murky required research
> by publishers to determine if they had the necessary rights to
> reprint them via POD or issue them in electronic form (older
> contracts not having anticipated such a possibility). This
> changed situation gave publishers new incentives to investigate
> the status not only of works owned by third parties they wished
> to use but works on their own backlists whose ownership status
> was unclear. So, for the first time, publishers had a good reason
> to do the necessary research more systematically than ever
> before.
>
> Some publishers that own rights to older works but don't want 
> to invest the money in digitize them are happy to have 
> libraries or other institutions do this work in exchange for 
> allowing them to be distributed open access. This is what the 
> University of California Press started doing a while ago 
> through the California Digital Library and what such presses as 
> Duje and Pitt have done more recently.
>
> Still, it takes sometimes a considerable amount of effort to
> determine whether a work is truly an "orphan" and many
> understaffed and underfunded presses cannot afford to make this a
> high priority. It is, in my opinion, therefore a welcome
> development that some well-funded entity like the HathiTrust
> should engage in this effort. Only it is imperative that the
> research is done thoroughly and well, as the embarrassing
> revelations from the Authors Guild have shown HT's process not to
> be yet.
>
> Sandy Thatcher