Rights to Publication, the Digital, and the Electronic
The following article on the publishing industry discusses some of the legal problems that so-called “digital” and “electronic publishing,” the Internet, and the prevalence of e-mail and other communication methods have brought about for publishing lawyers, entertainment lawyers, authors, and others. As usual, the law of digital and electronic rights, as well as publishing law generallyThe laws governing these commercial operations have lagged behind the activity itself. However, most of the “grey areas” in the publishing sector can be clarified by applying traditional common sense interpretations to contemporary literary and entertainment legal concepts, such as the digital right and electronic right, among others. I’m interested in hearing from you and reading your post if, after reading this article, you think you understand the difference between “digital right” and “electronic right” in the context of publication without the use of jargon.

1. “Digital Rights” Or “Electronic Rights” Are Not Self-Defining Terms.

All publishing attorneys, entertainment attorneys, authors, and others must utilise jargon with extreme caution, whether it be terminology specific to the publishing industry or not. Digital and electronic publication is a relatively new phenomenon. Although, in contrast to some others, I like to refer to “electronic rights” or even “digital rights” in the singular number, there is probably no universal agreement on what exactly makes up and what exactly makes up the singular “electronic rights” or “digital rights.” The publishing, media, and entertainment sectors have not had enough time to fully crystallise correct and comprehensive definitions of terms like “electronic publishing,” “online publishing,” “electronic right[s],” “e-rights,” and “first electronic rights.”

Therefore, these terms are frequently just assumed or, worse still, outright fudged. Anyone who asserts that these words alone define themselves is mistaken.

Therefore, anyone who claims that an author should do – or not do – something in the realm of the “electronic right” or “digital right” because it is “industry-standard,” including a publishing lawyer or paralegal representing a book publisher or entertainment lawyer representing a studio or producer, should automatically be treated with suspicion and scepticism.

The truth is that authors, as well as author-side publishing lawyers and entertainment attorneys, are in a terrific time, and they should take advantage of it. Authors, author-side publishing lawyers, and entertainment attorneys can benefit from this period in history since “industry-standard” conceptions of the electronic right and digital right have not yet fully crystallised, if they ever do.

Of course, authors can also fall victim to unfair practises, especially those who are not protected by a publishing or entertainment counsel. That has a long and regrettable history, dating back well before the invention of the electronic right and the digital right. Since the invention of the Gutenberg Press, most likely.

Before agreeing to any publishing or other agreements, every author should be advised by a publishing attorney, entertainment attorney, or other legal representative, if their financial situation permits it. (But I’ll admit I have a predisposition in that direction.) Tearing apart the various threads that collectively make up the electronic right or digital right is a part of the publishing lawyer’s and entertainment lawyer’s role in defending the author. This must be carried out using up-to-date references for modern technologies. It might be time to find a new advisor if your current one is a relative who uses a Commodore PET or a Smith-Corona cartridge typewriter instead of an entertainment or publishing lawyer.

However, even authors who are unable to afford legal representation from a publishing or entertainment professional should refrain from verbally or in writing granting publishers of “electronic publication” or the “electronic right” or the “electronic right” extensive contractual grants. Instead, the author and author advice had better “tear it down anew,” in the words of “Tears For Fears.” The author and his or her publishing lawyer and entertainment lawyer must establish a list of all the potential and numerous electronic uses for the written work before agreeing to grant anyone the author’s “digital right” or “electronic right” or any aspects thereof. Be aware that the author list will probably change from month to month.

considering how quickly technology is developing. For instance, the author, publishing lawyer, and entertainment lawyer can all take into account the following queries:

Right Electronic Digital The Publishing Attorney/Entertainment Attorney’s First Question to the Author is: Can the entire or a portion of the work be published online? in relation to a “e-zine”? Otherwise? How, if so? What is the purpose? No cost to the reader? for the reader to pay?

Right Electronic Digital The Publishing Attorney/Entertainment Attorney’s Second Question to the Author is: Is the work accessible through “listservs” or private email lists? No cost to the reader? for the reader to pay?

Right Electronic Digital The publishing attorney/entertainment lawyer posed the following question to the writer: Can the piece be made available on CD-Rom? Who is it? what way and what situation?

Right Electronic Digital Question #4, Asked To The Author By The Publishing Attorney/Entertainment Attorney: How much does the author want to self-publish this work, either before or after giving away any electronic rights or individual “electronic publishing” rights therein? Will the author’s website or another channel be used for such self-publication? Otherwise?

Right Electronic Digital Question #5, Asked To The Author By The Publishing Attorney/Entertainment Attorney: What extent does the author want to be allowed to use and distribute this writing for his or her own portfolio, publicity, or self-marketing objectives, and perhaps distribute that same writing (or snippets thereof) online, even if the author does not self-publish? Should that be considered invading the electronic right as it is otherwise contractually and collectively formed, or in competition with it?

The list above is illustrative but not all-inclusive. Any author, publishing attorney, or entertainment legal will probably consider additional aspects of the electronic and digital right as well as additional applications. As technology develops, the definitions of electronic rights and digital rights will become more complex and have a wider range of potential applications. Additionally, different authors will respond differently to each of the meticulously detailed questions posed by the publishing lawyer and entertainment attorney.
Additionally, a particular author may care about an electronic right in the context of one of their works but not as much in the context of another, unrelated work that is less vulnerable to digital right abuse. Before answering to the author’s publishing lawyer or entertainment lawyer and before signing each particular transaction, the author must self-examine on these kinds of electronic and digital rights questions.
The author won’t be able to avoid pitfalls and hazards of relying on language and on someone else to define what the “industry standard” for electronic or digital rights is unless they do this. The publishing and entertainment industries’ legal analysis is that “Contracts that are the result of bilateral negotiations do not have industry norms. You, the author, should be concerned with the motivational “standard” of “if you don’t ask, you don’t get.” “.

The author should also be aware that, although the electronic right, digital right, and components thereof may be expressly granted, they may also be expressly reserved to the author with the simple click of a mouse or keystroke by the publishing legal or entertainment lawyer. For instance, an author should ask their publishing lawyer or entertainment lawyer to specifically recite this reservation of the author portfolio electronic/digital right in the contract, leaving nothing to chance, if they wish to expressly reserve the “portfolio uses” mentioned in Electronic Digital Right Question #5 above. Aside from that
The “safety net” of a “savings clause,” which states that “all rights not expressly granted to publisher, be they an electronic right, digital right, or otherwise, are specifically reserved to author for his/her sole use and benefit,” may be negotiated by the author if they have some negotiating power through their publishing lawyer or entertainment attorney. In this method, the contract’s “default provision” may automatically capture any unawarded rights, including any digital or electronic rights for the author’s future use. This publishing attorney and entertainment attorney drafting method has probably previously rescued empires.

2. To secure the electronic rights, publishers and entertainment companies are currently revising their boilerplate agreements.

Publishers and their in-house and outside counsel publishing lawyers and entertainment attorneys are frantically revising their boilerplate contracts as we speak to more fully capture the digital and electronic right, that is, all of an author’s digital and electronic rights. This is well known and shouldn’t come as a surprise. A typical publishing agreement created by a company-side publishing lawyer or entertainment counsel will provide a long list of “including but not limited to” examples after a broad transfer of rights. If a publisher or the publisher’s publishing counsel or entertainment attorney sends the author a rights provision that seems burdensome, the author should not sign it.
You shouldn’t be afraid of the author. Instead, the author should view it as a chance to have some fun and earn some money. The author can first contrast the laundry list provided by the publisher with the lists provided in Electronic Digital Right Questions #1 through #5. The author can then choose which, if any, of the distinct digital or electronic rights they wish to fight to retain for themselves.

The author still has the ultimate leverage, which is the right to reject the proposed agreement before it is signed, even if the publisher orders them to blindly accept their full digital or electronic rights clause (or sections). Of course, it wouldn’t generally be a good idea to use this tactic unless the author already had written offers from other publications on the table. However, a publisher, company-side publishing counsel, or entertainment attorney shouldn’t pressure an author to sign away any electronic, digital, or other rights that the author would prefer to preserve, especially if the author never planned to sell those rights to the publisher in the first place.

When accomplishing all of this, the author should keep in mind the psychology and goals of the publishers, as well as the advice of their publishing legal and entertainment attorney. The publishing business’s vice president (or higher) likely recognised recently that by turning down a potential licence or assignment of an electronic right or digital right from another author, the company had lost a significant amount of money on a certain project. The VP then likely placed the blame on the business’ internal legal team, which likely included publishing lawyers or entertainment attorneys.
who then began hurriedly revising the business boilerplate in an effort to appease the enraged publishing executive and preserve their jobs. When in-house publishing lawyers, entertainment lawyers, or other attorneys adopt this technique, which some may refer to as “drafting from fear,” they frequently overdo it.

The publisher will therefore ask the author for every conceivable electronic and digital right as well as everything else, including (without limitation) the kitchen sink. As a result, what you will likely see is a proverbial “kitchen sink” electronic right clause that has been recently drafted and perhaps even hasn’t been sufficiently reviewed by the company-side publishing lawyers and entertainment attorneys, internally and themselves. The only way to respond to such a broad-band electronic right or digital right clause is with a methodical, cautious answer.

The author and the author’s publishing lawyer or entertainment attorney counsel must individually dissect each use and element of the electronic right and digital right that the publisher’s broad-band clause might otherwise capture before advising the publisher “yes” or “no” on each line-item. This process is outlined in Section #1 above. In other words, the author should exercise their line-item veto through their publishing legal or entertainment attorney.
After all, we are discussing the author’s writing here. The term “electronic right” or “digital right” should be translated by the author into a comprehensive list of electronic rights. Because I like to leave the list-making to the technologically savvy author, I refer to “electronic right” or “digital right” by using the singular number. By doing so, the author can also explain to me what, in their opinion, the phrases’ genuine meanings are as well as any differences between the two interpretations.

Let me now say a few words in support of publishing companies and the attorneys who represent them.

This article has thus far covered the need for authors to reserve necessary rights, such as the digital right or the electronic right, to themselves in the context of a publishing deal and the fact that terms like “digital right” or “electronic right” should not be taken to be self-defining, even by and between publishing lawyers and entertainment attorneys. Next, let’s look at ideas like the digital right or electronic right from the viewpoints of publishing lawyers and entertainment lawyers. From a fairness standpoint, who between authors and publishers should actually hold on to the digital right or electronic right, once and assuming that they are first properly defined?

3. Electronic and digital rights uses do compete with uses associated with traditional book publishing.

To handle an author-side deal, a publishing attorney or entertainment counsel may be contacted. Under various factual situations, a publisher-side contract may also be handled by an entertainment attorney or publishing attorney. So, I guess I’ll say a few words in support of publishers now.
In the author and online communities, there is a belief that publishers shouldn’t accept extensive digital or electronic right grants from authors since “digital rights and electronic rights do not compete with or infringe upon traditional book publishing and other media rights.”

It’s untrue. no longer. Ask a few seasoned news desk editors if they followed or were otherwise worried about what appeared on the Drudge Report during the Clinton administration as evidence of that assertion. Ask a few traditional encyclopaedia firms’ CFOs or in-house publishing lawyers how they feel about Wikipedia.

Interestingly, despite the fact that, in contrast to some others, I like to refer to “electronic rights” or even “digital rights” in the singular, there is probably no universal agreement on what exactly makes up the singular “electronic rights” or “digital rights” in the first place. The publishing, media, and entertainment sectors have not had enough time to fully crystallise correct and comprehensive definitions of terms like “electronic publishing,” “online publishing,” “electronic right[s],” “e-rights,” and “first electronic rights.”

However, digital media, more notably the electronic and digital rights, have already altered our history. You can be sure that they will at the very least have some impact on the majority of authors’ individual publication deals going forward and serve as debate material for publishing lawyers and entertainment attorneys for years to come. The truth is that electronic uses that are built into the digital right and the electronic right already compete with older, more traditional uses. This is especially true because digital and electronic uses can potentially reach millions of users in less than, to borrow a phrase from Jackson Browne, “the blink of an eye” and are cheaper and faster to deploy.

The digital right and electronic right are the foundation of the growing reliance of commerce on the Internet and other electronic phenomena. You are, after all, reading this essay and presumably learning something from it. For instance, the Web has already made a significant dent in the sales of dictionaries and encyclopaedias. Anyone who claims otherwise is likely an employee of a company that publishes dictionaries or encyclopaedias or a publishing lawyer who is fighting against the digital and electronic right in an effort to preserve his or her stock options. As seen by the recent and well-known Stephen King pilot programme,
The next topic area to be impacted is fiction. Unbound hard copies of books may soon be restricted to book collectors and publishing lawyer vanity bookshelves alone, which is something that many of us book lovers, including publishing lawyers and entertainment attorneys, detest to consider. However, the vast majority of readers may embrace the digital right and electronic right to the point where they quickly lose the ability to wait for their “amazon.com” sent cargo.

There are very few people who work in the publishing, media, and entertainment industries who would dispute that electronic uses inherent in the digital right and electronic right can easily cannibalise the older and more traditional forms and formats. This includes fair-minded publishing lawyers and entertainment attorneys. With time, this cannibalization won’t lessen but rather intensify. Once more, authors should imagine themselves in the shoes of the publisher or its in-house publishing attorney.
when arguing digital rights against electronic rights with the publisher or publishing attorney. Otherwise, the publisher might wish to assist the author’s work with marketing and staffing, and perhaps even provide the author a writing advance. But why should they do this without also obtaining the author’s digital or electronic rights, according to the publisher’s publishing legal or entertainment attorney?

The last thing a publisher, its publishing attorney, or entertainment attorney wants is to pay an author only to find out later that the author “scooped” the work with an author-reserved digital or electronic right, stole the publisher’s metaphorical bacon, and damaged the publisher’s investment in the writer and the writing. The publisher’s and the book company’s internal publishing attorney or outside entertainment attorney’s worry is valid and logical. The publisher is endangering its own investment in the author and the written work if it permits the author to potentially devalue the book by taking advantage of the author’s reserved digital or electronic right. (And the company’s in-house publishing attorney, at least subliminally, also knows that this could come out of his or her future comp).

There are compromises to be had. A “hold-back” on the digital right or electronic right, whereby the author agrees not to utilise or license-out any author-reserved digital right or electronic right for a specific length of time following publication, is a common agreement reached between publishing lawyers and entertainment lawyers. However, the author will need to use some pressure to persuade a publisher to accept such a compromise. The clause should be drafted by a publishing legal or entertainment lawyer who represents the author, not the publisher’s counsel.

The publisher, the company’s publishing lawyer, or the entertainment attorney may be informed by the author that small “portfolio” uses—such as those found inside greeting cards or on the author’s personal website—are so minor that they won’t ever compete with publishing rights granted for the same work. The example of the greeting card does seem innocent enough, but it is possible that the publisher and its entertainment or publishing counsel will disagree with the author over the author’s personal website. Publishers, their publishing attorneys, and entertainment attorneys are most concerned about the electronic right or digital right because they see it as a threat to their long-term investment in the author and his or her work.

Here, it is important to distinguish between “portfolio uses” of hard copy portfolios and those of digital or electronic rights. The truth is that text uploaded by a computer is really simple to send, receive, and read. The popularity of the posted content could potentially spread quickly, like a digital wildfire, for instance, if a business creates a connection to the author’s website or if “Yahoo” moves the author’s website up in their search engine ranking. By virtue of digital rights and electronic right self-publishing, many successes have already been achieved, and more will come. This truth is already understood by traditional (book) publishers and their publishing and entertainment attorneys.
As a result, traditional book publishers and their legal counsel are also aware that they run the risk of losing control of a possible wildfire diffusion strategy if they agree to a writer’s reservation of a digital or electronic right for “self-promotion”. Again, this would put the publisher’s investment in jeopardy, but savvy business people and organisations, as well as the publishing lawyers and entertainment attorneys who represent them, never put their own assets in jeopardy.

4. Whoever acquires the electronic rights should be the party to the contract with the better and more immediate means and resources to use them.

The final point is made here. A party entering into a contract has no business claiming (or reserving to themselves) digital or electronic rights, or even negotiating such a position by and between publishing lawyers or entertainment attorneys, if that party lacks the means and resources to exploit a given digital right or electronic right, or a given bundle of them. To illustrate, if I were a screenwriter and I sold or optioned my script to Acme Production Company, LLC through an entertainment attorney, How should I respond if, throughout the course of the negotiation between the entertainment attorneys, Acme requests that I expressly and formally grant them “theme park rights” in my literary work? (Don’t laugh; in today’s film and entertainment transactions, this practise is fairly common.)

So if Acme doesn’t have a theme park of its own, I (or my entertainment lawyer) now have a strong case for keeping the theme park rights for myself. “Hey Acme, how dare you ask for my theme park rights when you don’t even have the capacity to utilise or exploit them yourself, I say (or my entertainment attorney answers). Not even a theme park exists there!” I then make it clear to Acme that I do not intend to provide them with any awards that they can display on a shelf and accumulate virtual dust. I do this through my entertainment attorney..

The same defence can be made in relation to the digital right or electronic right in the publishing environment, particularly when it is made by publishing lawyers and entertainment lawyers. The publisher can be figuratively cross-examined by the author about the publisher’s successful past uses of other authors’ digital rights or electronic rights across several works (or try to cross-examine the company’s publishing legal or entertainment attorney). The company president is free to give a misleading response, but the publisher’s attorney or entertainment counsel must provide a straight answer. (One strong reason to negotiate with legal representation.)

The author may use the aforementioned “trophy” justification if the real response to the query is “none.” If “some” is, instead, the correct response, then the author may be able to negotiate a commitment from the publisher, as well as from its publishing lawyer and entertainment attorney, to also digitally and electronically publish the author’s work. “I won’t provide you the digital right or electronic right unless you, publisher, contractually commit in advance as to how explicitly you will exploit them and how much money you will spend on their development and marketing,” the author may claim. If the author has the power to do so, they or their publishing or entertainment attorney can then sever those electronic right and digital right agreements immediately from the contract. Once more, do not attempt this at home; instead, see a publishing attorney or an entertainment counsel.
It goes without saying that once the author forces the publisher to make a commitment to a development budget or other marketing or “release” commitment for the digital right or the electronic right, likely through publishing lawyer or entertainment attorney counsel, both the author and the publisher may then also have some basis for numerical valuation of the rights themselves. Furthermore, it is perfectly acceptable for an author to make the following claim to a publisher: “I will license/sell you the following stated digital right[s] or electronic right[s].” if you pay the following additional sums to me in exchange for them: The rights can also be presented in the empty space as menu options, just as they were in Item #1 above, with each having distinct dollar values, or price tags, now attached.


Regarding your specific position and fact pattern, this article does not represent legal advice and is not intended to do so. If you sense a legal matter developing that could damage your rights or your career, you should get assistance as soon as possible. What is appropriate in one setting could not be in another. Make sure to get specialised legal counsel on any significant issue affecting your rights generally or your career specifically.
Rights to publishing, digital, and electronic works.
As a publishing lawyer and entertainment lawyer, I also represent clients in the domains of music, cinema, television, the internet, and other media and the drafting, editing, negotiation, and closure of agreements, as well as in the areas of digital and electronic rights where those issues may arise. Please get in touch with me if you have any inquiries about legal matters that have an impact on your career and need representation:

Article Source: www.nbmbazar.com