Electronic Copyright Rights: Do You Have What You Need?

Publishing agreements have long operated with certain assumptions about what books are and what publishers do. These assumptions are increasingly at odds with the new technological forms in which books are created and marketed, from e-books and Kindle 2 read-aloud works to so-called “vooks” that incorporate on-demand streaming video and other internet-based features in conjunction with hard copy books. Publishers’ contracts need to be re-thought in light of these changed circumstances. Specifically, publishing contracts today should focus on the activities in which the publisher may engage, and not the form in which the work may be presented, a point that was made clear several years ago in the Random House v. RosettaBooks litigation. In defining these activities, contracts should track the language of the exclusive rights enumerated in §106 of the Copyright Act. Finally, to the extent that books are becoming “audiovisual works” publishers may be able to shift to a work-made-for-hire model for obtaining ownership, rather than relying on grants from individual authors.