RE: Query on digitizing chapters

[Edward Barrow <edward@xxxxxxxxxxxxx>]

On Thursday, August 15, 2002 5:06 PM, Shirley Maul [SMTP:maul@xxxxxxxxxx] 
wrote:
> 	It is my understanding that if an author who is the copyright
> holder gives us permission for a chapter of his or her book to be 
digitized
> for reserve for one course for one semester that should be sufficient
> permission.  (They are usually delighted that someone wants to use thier
> work!)
> 	 We are finding that the author sometimes is uncertain and suggests
> we also contact the publisher and invariably the publisher asks for a big
> fee (which does not go to the author).  We have already purchased the 
book
> in print and usually put the print on reserve as well.  Also note that
> digitizing a chapter is not equivalent to creating a course pack which 
one
> publisher thought.   No money is changing hands.
> 	My question is: Does the publisher who does not have copyright have
> the legal right to ask for a fee?  Are other academic libraries having 
the
> same experience?  We want to do the right thing but not incur unjustified
> expenses.


It depends....

on the actual terms of the  publishing agreement between the author and the 
publisher, and possibly on the jurisdiction.

If the author only granted the publisher print-on-paper volume rights, then 
the author's permission may be sufficient.

If the author, while retaining ownership of the copyright itself, has 
granted the publisher an exclusive licence to rights which include the 
digitisation rights, then the author's permission is not sufficient.

In the UK (though I believe not in the USA, but I may be wrong) there is in 
addition a publisher's copyright in the typographical arrangement, which 
you might infringe by scanning.

It is generally best to deal wih the publisher, even when they do not hold 
the rights. Publishers' rights and permissions departments *should* contact 
the author (or his or her agent) on your behalf if they do not hold the 
rights themselves, and  *should* have people working in them who know about 
copyright; authors should be able to rely on their publishers to handle 
this type of business administration on their behalf.  I emphasise the 
"shoulds" because not all publishers have always exercised the highest 
standards in their dealings with their authors, but you will not 
necessarily be helping matters by going to the author direct.

You say the money does not go to the author: again this is not always the 
case, it depends on the contract and whether there is an outstanding 
advance.

Publishers' concerns about the  practice of digitising for e-reserves are 
understandable. The fact that no money changes hands is not commercially 
germane, the issue is whether it means that fewer books will be sold. 
 Frequently though the impact of reserve use is neutral and in some cases 
may even indirectly result in higher sales of the book concerned. If you 
deal with the publisher directly, you will help to keep them informed of 
the way their material is being used and help them to reach rational rights 
and permissions decisions.

In the USA, an alternative, which should result in substantial 
administrative savings, is to deal through the Copyright Clearance Center, 
who have a programme for e-reserves, although I believe that not all 
publishers participate. If you are based outside the USA, there are 
equivalent RROs which may be able to help.

Edward Barrow
New Media Copyright Consultant
http://www.copyweb.co.uk/
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