XXXThis paper is not a dissertation on copyright law, nor is it simply an overview of digital publishing. The proposed thesis shall be the definitive guide for the protection of digital rights in today's publishing environment. The purpose of this thesis is to answer the question: What can an author do to protect their rights in the digital age? This is different to most papers, periodicals and literature available which either acts as an easy-to-understand generic guide to intellectual property law for non-lawyers; a how-to guide for the filing & creation of copyrights, patents and trademarks; or a scholarly guide written for a legal practitioner. This thesis is different in that it will: focus solely on the rights of authors in the publishing industry through looking at real life examples, case law and personal interviews. Based on these facts, I hope give a good explanation of an author's rights and the dangers to them, and what they will need to protect themselves from these dangers today and into the future. A comprehensive guide such as I have outlined does not exist, and will greatly benefit the publishing industry as a whole.
XXXThe introductory section will include background information on an author's traditional rights and how these rights have been challenged by technology. I will not examine the issue through a right-by-right analysis, but I shall divide the paper into sections based upon the author's adversaries -- consumers; libraries & academia; and publishers.1 Within each of the aforementioned sections I shall discuss: why they are a threat to the author's rights, analyze the laws regarding the rights at risk, how the author can protect heir rights, and what the future might hold. I will then conclude with a summarization of the paper and also include a few closing opinions. A more in-depth overview of the dissertation is detailed below.
XXXThe purpose of this section is to introduce and educate the reader on the traditional rights of an author. In the good old days, which in publishing was less than twenty years ago, an author who was lucky enough to be published signed a standard a contract that detailed the standard rights of each party. These rights included: first serial; second serial; English language; translation; reprints; permissions, anthologies, extracts, abridged versions, collections; book club; motion picture, performance, dramatization; merchandising and commercial rights; and droit moral (moral rights). In almost all cases (there are a few exceptions) the copyright of the material was undisputedly the owner of the copyright. With the increasing number of electronic media (CD-ROM, Internet, E-Books, etc.) introduced over the last fifteen years a clause for electronic reproduction was also included into these contracts. It is on this clause that I will focus this section.
XXXThis section will give an overview of the traditional rights listed above. I will also include a brief discussion on the history of some of these rights including a short synthesis of copyright law and the fair use doctrine leading up to the point where electronic rights came into play. This will provide a ample segue into the main body of the paper.
II. The Consumer
XXXWe live in a free society. However, some people take this idiom to the extreme, especially in the online world. They believe that if something is available on the World Wide Web (WWW), it is beyond the reach of the laws of the offline world and may be taken and used as their own. The recent controversy with NAPSTER is one such example of consumers downloading free music off the Internet without remuneration to the copyright owners of the songs. This section will discuss how copyright laws have been overhauled (only as it applies to authors) as a result of the digital revolution. I will analyze the principal legislation such as the Digital Millennium Copyright Act of 1998 and the important case law including Tasini v. New York Times.
XXXThe paper will be rounded out with real life examples and experiences through interviews. I would like to interview a board member of the Author's Guild for an author's insight on this subject. Last year Stephen King made a statement to the publishing world when he published one of his novellas, The Plant, online. Each installment was downloadable and payment was on an honor basis. I would like to conduct an interview with the "King of Horror" himself and get his opinions on digital rights and how the role as an author has changed due to technology.
III. Libraries & Academia
XXXThere are exceptions to the traditional laws governing the use of copyrighted materials. One such use is the doctrine of "fair use," which is utilized by libraries and academia for educational purposes and the pursuit of scholarly knowledge. The breadth of this doctrine has constantly been disputed, and the use of works on the Internet has only added fuel to the fire.
XXXThe doctrine of fair-use, as it related to the digital rights of the author, will be fully discussed. An analysis of recent case law and legislation will also be included. To provide a real life insight into this issue, I plan to interview a member of the American Library Association. After the analysis, the means of protection shall be discussed.
XXXMoney makes the world go around, especially in the world of publishing. Electronic publishing has brought a new stream of revenue to the publishing houses. However, it has also brought upon a metamorphosis in its relationships with its authors. A publisher makes money through the sale of content created by an author. The problem arises as to how much can a publisher do with it? I have covered all of the rights provided by an author/publisher contract, but electronic/digital rights are in a constant state of flux. For example, in Tasini v. New York Times, the publisher was provided with electronic rights. The New York Times then placed the content written by various authors on a electronic database which also included other periodicals. The last appeals court that heard the case stated that the definition of electronic rights stipulated in the contract did not provide for the right to be this broad. The publishing houses want as many rights as it can secure without having to pay for them. The authors want to retain as many rights as they can.
XXXIn this section I will analyze Tasini and other cases which take a look at the publisher-author struggle for rights and how it has changed due to electronic publishing. I will also discuss the recent movement of self-publishing over the Internet and taking the publisher out of the process completely. This section will be rounded out by part of the Stephen King interview, in which I hope to ascertain information on his "break-away" from his publisher, Simon & Schuster, for this project and what it means to the publishing world as a whole. I also plan on conducting an interview with a member of the American Publisher's Association to provide the viewpoint of the publisher on this subject. Another possible interview is with Mr. Tasini, or possibly one of his attorneys. I will then give my opinions on what authors might have to look forward to for the future in their relationships with publishing houses.
XXXThis section will conclude with a summary of the paper, highlighting the main points of each section. I will include my own opinions and comments on the state of an author's rights today. I will also try to provide some insight into what new changes might arise on this issue, and what an author can do to protect themselves.
1 The idea for this thesis and the division of its discussion is based upon Paul Aiken's article "Getting Paid in the Digital Age" <http://www.publishersweekly.com/AAR/DigitalAge.html> which is available on Association of Author's Representatives web site. The article was first published in the Spring 1997 issue of the AAR Newsletter.
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