The next publishing industry article addresses some of the legal issues arising for publishing lawyers, entertainment attorneys, authors, and others due to the prevalence of e-mail, the web, and so-called “digital” and “electronic publishing”. As usual, publishing law usually and the law of the digital correct and electronic right specifically, governing these commercial activities, has been sluggish to catch up to the activity alone. Yet most of the publishing industry “gray areas” can be resolved by imposing old common-sense interpretations upon new publishing lawyer and entertainment attorney industry constructs, including the digital right and electronic right, and others. And when after reviewing this article you believe you have a non-jargonized handle on the distinction in between “digital right” and “electronic right” in the publishing context, then I look forward to hearing from you and reading your own article, too.
1 . “Electronic Right[s]” And “Digital Right[s]” Are Not Self-Defining.
Almost all publishing lawyers, entertainment attorneys, writers, and others must be very careful about the utilization of jargon – publishing industry jargon, or otherwise. Electronic and digital publishing is a recent phenomenon. Although like a publishing lawyer and entertainment attorney and unlike some others, I often use the phrase “electronic right” or maybe “digital right” in the singular quantity, there probably tends to be no single consensus as to what constitutes and collectively comprises the singular “electronic right” or “digital right”. There has not already been sufficient time for the publishing, mass media, or entertainment industries to fully crystallize accurate and complete definitions of key phrases like “electronic publishing”, “web publishing”, “electronic right[s]”, “e-rights”, “digital rights”, or “first electronic rights”.
These phrases are thus usually just assumed or, even worse, just plain fudged. Anyone who suggests that these phrases alone are already self-defining, will be wrong.
Accordingly, anyone, including the publishing lawyer or paralegal symbolizing a book publisher or entertainment lawyer representing a studio or maker, who says that an author should do – or not do – some thing in the realm of the “electronic right” or “digital right” because it is “industry-standard”, should automatically be treated with suspicion and skepticism.
The fact of the issue is, this is a great era for authors as well as author-side publishing lawyers and entertainment attorneys, and they should seize the moment. The fact that “industry-standard” definitions of the electronic right and electronic right have yet to fully crystallize, (if indeed they ever do), means that authors and author-side publishing lawyers and entertainment attorneys may take advantage of this moment in history.
Naturally , authors can also be taken advantage of, too – particularly those not represented by a publishing lawyer or entertainment lawyer. There is a long and unfortunate history of that happening, well prior to the advent of the electronic right and electronic right. It has probably happened since the days of the Gutenberg Press.
Every author should be represented by a posting lawyer, entertainment attorney, or various other counsel before signing any publishing or other agreement, provided that their own economic resources will allow it. (But I am admittedly biased in that regard). Part of the publishing lawyer and enjoyment attorney’s function in representing the writer, is to tease apart the different hair strands that collectively comprise the electronic right or digital right. This particular must be done with updated reference to present technology. If your advisor on this stage is instead a family member with a Smith-Corona cartridge typewriter or a Commodore PET, rather than an entertainment attorney or publishing lawyer, then it may be time to seek a new advisor.
Even writers who cannot afford publishing lawyer or entertainment attorney counsel, however , should avoid agreeing in writing to give broad contractual grants to marketers of “electronic publishing” – or the “electronic right”, or “electronic rights” or “digital rights”, or the “digital right”. Rather, in the words associated with “Tears For Fears”, the author plus author counsel had “better break it down again”. Before tallying to grant anyone the author’s “digital right: or “electronic right”, or any elements thereof, the author and his or her publishing lawyer plus entertainment attorney need to make a list of all the possible and manifold electronic ways that the written work could be displayed, exploited, or digitally or digitally otherwise used. Notice that the author’s list will likely vary, month to month, given the fast pace of technical advancements. For example , these kinds of questions can be considered by the author and publishing lawyer and entertainment attorney alike:
Electronic Right Question #1, Asked From the Publishing Lawyer/Entertainment Attorney To The Author: Can the work be published in whole or in part on the Internet? In the context of an “e-zine”? Otherwise? If so, exactly how? For what purpose? Free to you? For a charge to the reader?
Electric Right Question #2, Asked From the Publishing Lawyer/Entertainment Attorney To The Author: Can the work be disseminated by means of private e-mail lists or “listservs”? Free to the reader? For a charge towards the reader?
Electronic Digital Right Question #3, Asked By The Publishing Lawyer/Entertainment Attorney To The Author: Can the work end up being distributed on CD-Rom? By whom? In what manner and context?
Electronic Digital Right Question #4, Asked By The Publishing Lawyer/Entertainment Attorney To The Author: To what extent does the author, himself or herself, wish to self-publish this work, either before or after granting any electronic right or any individual “electronic publishing” rights therein to someone else? Will such self-publication occur on or through the author’s website? Otherwise?
Electronic Digital Right Question #5, Asked By The Publishing Lawyer/Entertainment Attorney To The Author: Even if the author does not self-publish, to what extent really does the author wish to be able to use plus disseminate this writing for his or her personal portfolio, publicity, or self-marketing purposes, and perhaps disseminate that same composing (or excerpts thereof) electronically? Ought to that be deemed invasive associated with, or competitive with, the digital right as otherwise contractually plus collectively constituted?
The above list will be illustrative but not exhaustive. Any writer and any publishing lawyer plus entertainment attorney will likely think of some other elements of the electronic and electronic right and other uses as well. The number of possible uses and complexities of the electronic right[s] plus digital right[s] definitions will increase as technology advances. Additionally , different authors will have different reactions to the publishing lawyer and amusement attorney, to each of the carefully-itemized queries. Moreover, the same author may be worried about the electronic right in the framework of one of his/her works, but may not care so much in the context of a second and different work not as susceptible to digital right exploitation. Consequently , the author must self-examine on these kinds of electronic and digital right questions before responding to the author’s posting lawyer or entertainment attorney then entering into each individual deal. Only by doing this can the author avoid the pitfalls and perils of relying upon lingo, plus relying upon someone else to determine to them what is the electronic right or digital right “industry standard”. As the publishing lawyer and entertainment attorney should opine, “There is no this kind of thing as ‘industry standard’ in the context of a bilaterally-negotiated contract.
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The only standard that you the author should be worried about is the motivational ‘standard’ known as: ‘if you don’t ask, you don’t get'”.