Category Archives: Section 1.38

S 01.038

5 responses to “S 01.038”

  1. ehasbrouck says:

    This appears to imply that if nobody has an exclusive interest or exclusive licnse — for example, if the publisher-author contract provides that both the author and the publisher have nonexclusive rights to license electronic copying — than nobody has a “Copyright Interest” for purposes of the settlement. Why this definition? And what happens in such a case?

  2. All copyright interests start off being “exclusive” in the author (or the employer, in the case of a work made for hire). They can be transferred via “exclusive” licenses. Any “nonexclusive” licenses leave the interest where it was. Thus, copyright law subscribes to a kind of law of conservation of interests; they can be moved around, but not destroyed. If the contract gives both publisher and author a “nonexclusive” right to to license electronic copying, then the author is the owner for purposes of this section (since she started off with the interest and never transferred it via “exclusive” license).

  3. ehasbrouck says:

    “If the contract gives both publisher and author a “nonexclusive” right to to license electronic copying, then the author is the owner for purposes of this section (since she started off with the interest and never transferred it via “exclusive” license).”

    I assume that also implies the reverse: If the copyright was registered in the name of the publisher (routine for e.g. academic works), then the publisher is the sole party with a “copyright interest” as defined in the settlement, with sole right to control inclusion or use of the book, even if the publisher-author contract explicitly gave the author nonexclusive e-rights (and perhaps nonexclusive print re-use rights as well).

    So a party who in fact has an interest (economic and otherwise) and contractual rights in a work, might not have an “interest” or any right of control of the use of that work under the settlement.

    (I don’t know if we should attach any significance to the fact that this is probably most common for books from academic publishers (“copyright by the president and fellows of harvard…”) and to the role of academic libraries in the book-scanning.)

  4. If the copyright was registered in the name of the publisher, that typically means that the author has already transferred all her interests to the publisher.

  5. ehasbrouck says:

    Typically, no — most contracts (other than work for hire) assign some rights, often nonexclusive, to the author, even when copyright is registered in the name of the publisher. Yes, absent any other contractual provisions, registration in the name of the publisher would connote exclusive assignment of all rights, but there is usually a more complex division, and often sharing, of rights under a book contract.

Copyright Interest” means (a) ownership (including joint ownership) of a United States copyright interest or (b) an exclusive license of a United States copyright interest, in each case only if and to the extent the interest is implicated by a use that is authorized or for which compensation could be payable under this Settlement Agreement.

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