Re. Hathi Orphans?

[Sandy Thatcher <sandy.thatcher@alumni.princeton.edu>]

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: 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