Electronic Rights: Verbatim Text Editions and Multimedia Products
March 14, 2011
A number of Legal Corner readers have asked me about the meaning of "electronic rights." There are two fundamental questions: What are electronic rights? And, Should an author grant or retain them?
"Electronic rights" is shorthand for a basket of rights and multiplicity of products including 1) verbatim text editions delivered through multiple platforms; and 2) non-verbatim multimedia products including interactive educational or entertainment CD-ROMs and DVDs, compilations, and online databases.
In a typical Electronic Rights provision the publisher tries to control all rights for an unlimited term. However, because each right in the basket is distinct they should never be granted wholesale. And, if electronic rights are granted individually there should be no ambiguity in the publishing contract as to the extent of the grant and provisions for reversion.
Electronic Text Rights are defined in a mainstream publishing contract as
the exclusive right to publish, and to authorize others to publish, the text of the Work in whole or in part, in visual form for reading, by any electronic, electromagnetic or other means of storage, retrieval, distribution or transmission now known or hereafter devised.
Multimedia Rights are defined as
the rights to create, to publish and to use in electronic media, works in any language based on the Work (including the rights to create and to incorporate into those works, text, dialogue, sounds, music, artwork, video, animation, moving images, interactive elements, and other matter whether or not taken or derived from the Work or from the plot elements, characters, fanciful places, situations, facts, ideas and events portrayed in the Work) ...
Publishers expect to receive the rights to publish electronic editions. This is appropriate when they are in a position to exploit them. However, grants of rights in sweeping terms give the publisher control of all the electronic uses of an author's work. A boilerplate contract provision, for example, may require the author to grant the right "to exercise and license (i) the right to reproduce, publish, distribute and sell the full length Work in the English language in a product reproduced in print-on-paper or other physical media."
The term "media" is too broad and should not be permitted to creep into a provision describing use of the text in other formats. The rights granted should be limited to reproduction of the verbatim text of the print-on-paper work in an electronic format. The electronic edition should be the entire Work, unaltered and unembellished, unless otherwise expressly set forth in the publishing contract. The provision for electronic editions should not include by default any expansion of the right granted. Advertising and hyperlinking rights should be specifically spelled out if permitted. The maximum number of words for preview on the publisher's or bookseller's website depends on the genre.