Re: "Double" Licenses

[Alan Edelson <amedelson@topnet.net>]

I beg to differ with Terry Cullen over one part of his recent comments,
the part relating to copyright holding by authors versus by publishers.

I would not go so far as to say that "most" authors transfer only limited
(e.g., only North American) rights to their materials. That may be true to
some extent in popular trade fiction or non-fiction, but it is rare in
scholarly, technical and medical (STM) publishing.

And even when an author retains copyright, it is most often the case
(except for best selling trade authors) that the publisher is expected to
handle the paperwork involved in requests to re-use the author's
materials, dividing any proceeds from use of rights with the author
according to their contract. Writing to the publisher of record is also
far more convenient for those seeking permission for re-use of materials
than would be the case if one had to track down the author.  If a
publisher does not hold, say, rights outside North America, it would be
obliged to inform the interested party as to who does. The Rights and
Permissions departments of reputable publishers are not in business to be
dishonest; in my experience their integrity can be relied upon.

Alan M. Edelson, Ph.D.
formerly President and CEO
J.P. Lippincott Company

Terry Cullen wrote:

> In my opinion, the end-user "click-on" license is part of an ongoing
> attempt by publishers to effect an end run around users' rights under the
> Copyright Act.  It is a way for publishers to expand their rights well
> beyond what the copyright law grants in two ways.
>
> First, it purports to create an enforceable contract with the end user.
> Currently, no court has found click-on (shrinkwrap) licenses enforceable
> against consumers (ProCD was a commercial exploitation of a copyrighted
> database).  However, the proposed UCC Article 2B would make such licenses
> enforceable, if it succeeds and is adopted in the states (unless it is
> found to be either unconstitutional or preempted by the Copyright Act.)
>
> Second, it has a chilling effect on users' exercise of their rights to
> fair use of materials.  Publishers today want the right to control ALL
> uses of all materials they publish, while the Copyright Act grants only
> limited rights to copyright holders.  In fact, many publishers do not even
> hold copyright in the materials they are trying to control, but only in
> the compilation of those materials.  (Many American authors sell/grant
> only first North American publication rights or other limited rights when
> they sell/offer an article, and retain all other rights in their
> creations.)
>
> Terry Cullen
> Electronic Services Librarian
> Seattle University School of Law Library
> 950 Broadway Plaza, Tacoma, WA  98402-4470
> Email:  tcullen@seattleu.edu
> Phone:  253-591-7092  FAX:  253-591-6313