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Re. Hathi Orphans?
- To: firstname.lastname@example.org
- Subject: Re. Hathi Orphans?
- From: Sandy Thatcher <email@example.com>
- Date: Mon, 24 Oct 2011 18:17:12 EDT
- Reply-to: firstname.lastname@example.org
- Sender: email@example.com
Actually, most university press contracts i am familiar with do indeed put the onus on the author to initiate action to have rights reverted. And so does the provision of federal copyright law I mentioned: authors must act in order for the 35-year termination to take place. Our contract at Penn State Press, when i was director, included a reference to this statutory termination right; hardly any publishing contracts do. This is how it read: >This grant shall endure for the full term of copyright unless, >by statutory right, the Author serves written notice on the >Publisher of his intention to terminate it; this termination >must occur within the period specified by law, and the Publisher >must be notified at least two years prior to the termination >date. The regular, contractually provided termination clause read thus: >This agreement shall continue in force for the full term of the >United States copyright (unless the Author exercises the >statutory right to terminate it in the period defined by law) >and for the term of any other copyright or renewal or >continuation or extension thereof that relates to the work and >accrues to the Author under the present or any future Act of >Congress or under the present or future law of any country in >which copyright is secured, but subject to the following: If, >any time later than three years after the date of publication of >the work, the Publisher advises the Author in writing to his >last known address that it has become necessary to discontinue >publication, or if the Publisher fails to keep the work in print >and neglects to reprint it or license its reprinting within six >months after the Author's written request that it do so, then >the Author has the right to terminate this agreement by written >notice. (The work shall be considered "in print" as long as >copies are offered for sale in the United States through normal >retail and wholesale channels in an English-language clothbound >or paperbound version and are available from the Publisher or >its licensee and listed in catalogues issued to the trade.) >Upon receipt of the Author's notice, the Publisher will assign >the copyright of the work to the Author; thereupon all then >existing rights granted to the Publisher under this agreement >shall revert to the Author, except that the Publisher will >continue to receive its share of the proceeds from any license >already granted prior to receipt of the Author's notice. Sandy Thatcher >This is just a footnote to Sandy's excellent note. My experience >of scholarly contracts in the UK is that the rights were not >actually reverted automatically when the book was declared OP but >authors could ask for reversion i.e. the onus was on the authors >to ask for the rights. The fact that this was the case in another >jurisdiction or in the case of at least some publishers struck me >as one defect from a publishers viewpoint in the original Google >settlement under the terms of which (if I remember correctly) the >assumption was that rights were in author hands when the book was >OP. > >Anthony > >-----Original Message----- >From: firstname.lastname@example.org >[mailto:email@example.com] On Behalf Of Sandy Thatcher >Sent: 14 October 2011 00:39 >To: firstname.lastname@example.org >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