Sunday, December 13, 2009

Random Rosetta Returns With a Twist

We all remember the last attempt that Random House made to stake out their claim that all the rights they had included digital. It blew up in a case between them and Rosetta in 2001 and they failed in court to prove their case and it was eventually settled out of court with Rosetta being granted a licence to publish. The control e-rights to books was left undefined but with a federal judge in Manhattan in 2002 , ruling that “in book form” did not automatically include e-books.

Now some 9 years later and in a healthier digital market, Random appear to be revisiting the same ground. Random CEO Markus Dohle has, according to agent Richard Curtis's blog, communicated to that they are "precluded from granting publishing rights to third parties that would compromise the rights for which Random House has bargained."

Dohle continues and starts to redefine the book and remove and differences between digital and physical renditions, "The vast majority of our backlist contracts, grant us the exclusive right to publish books in electronic formats. At the same time, we are aware there have been some misunderstandings concerning ebook rights in older backlist titles. Our older agreements often give the exclusive rights to publish 'in book form' or 'in any and all editions'. Many of those contracts also include enhanced language that references other forms of copying or displaying the text that might be developed in the future or other more relevant language that more specifically reflects the already expansive scope of rights. Such grants are usually not limited to any specific format, and indeed the "form" of a book has evolved over the years to include variations of hardcover, paperback and other written word formats, all of which have understood to be included in the grant of book publishing rights. Indeed, ebook retailers market, sell and merchandise ebooks as an alternate book format, alongside the hardcover, trade paperback and mass market versions of a given title. Whether physical or digital, the product is used and experienced in the same manner, serves the same function, and satisfies the same fundamental urge to discovery stories, ideas and information through the process of reading. Accordingly, Random House considers contracts that grant the exclusive right to publish 'in book form' or 'in any and all editions' to include the exclusive right to publish in electronic book publishing formats. Our agreements also contain broad non-competition provisions, so that the author is precluded from granting publishing rights to third parties that would compromise the rights for which Random House has bargained."

So once again we have the digital world being staked out and Random flexing their weight.

So who owns digital rights and can they be assumed by the publisher? The issue isn’t about current works which are almost certainly covered under contract but older works which may well have been written before the Internet was even invented. As we know rights are acquired by publishers and these are usually very specific and cover both primary and secondary rights. If a work was acquired prior to digital rights being identified, some would argue that it is it safe to assume that they are secondary rights and not the primary ones. In which case, it fair to deduct that if not specified the publisher doesn’t own them.

The dispute impacts all authors, agents, estates of older works and it would make sense for publishers to revisit their contracts and strike deals with those potentially impacted. However, we now live in the world of the ‘land grab’ and ‘scan first ask later’. Publishers are uncertain of the digital future and don’t want to miss out on any party. We have all seen Google effectively get away with robbery, so its only safe to assume others can do it to. In the case of the Google Book Settlement, some would question whether old contracts are being checked re digital and reversals before claims are staked.

So should authors be tethered for life to a publisher for something that never existed when they entered into a contract, or should they be allowed to cut their own deal or revise terms? Should digital royalties be calculated on the physical book sales or separately and if separately then surely they are distinct

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