Category Archives: Article A3

SA 03

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Classification of Books

Also posted in Attachment A, Settlement | Comments closed

SA 03.1

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Initial Classification of a Book. Books that are initially classified as Commercially Available under the Settlement Agreement on the Notice Commencement-Procedures Governing Authorss and Publishers Date will be classified under these Procedures as In-Print Books, subject to Sections 3.2 and 3.3. Books that are initially classified under the Settlement Agreement on the Notice Commencement Date as not Commercially Available will be classified under these Procedures as Out-of-Print Books, subject to Sections 3.2 and 3.3.

Also posted in Attachment A, Section A3.1, Settlement | Comments closed

SA 03.2

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Tests for Determining Classification of Books. Either an Author (or the Author directors of the Board of Directors of the Registry) (other than for a work-for-hire Book) or a Publisher (or the Publisher directors of the Board of Directors Registry) (other than for a reverted or Author-Controlled (defined in Article IV) Book) can challenge the classification of its Book or a group of its Books as In-Print or as Out-of-Print based on the following tests.

Also posted in Attachment A, Section A3.2, Settlement | Comments closed

SA 03.2.1

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(a)A Book shall be classified as In-Print if it meets either of the following tests:

Also posted in Attachment A, Section A3.2(a), Settlement | Comments closed

SA 03.2.1.1

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(i) Test 1:

The author-publisher contract for the Book does not provide for reversion to the Author of rights in the Book under any circumstances, or the Book is “in-print” under the author-publisher contract. For this purpose, the Book may be “in-print”even if the contract does not use the term “in-print,” provided, however

Also posted in Attachment A, Section A3.2, Section A3.2(a), Section A3.2(a)(i), Settlement | Comments closed

SA 03.2.1.1.1

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(1) If the contract measures “in-print” by reference to revenues and more than fifty percent (50%) of the revenues paid to a Publisher from exploitation of a Book are earned from the Revenue Models, then those revenues shall not be considered in determining whether this Test 1 has been met.

Also posted in Attachment A, Section A3.2, Section A3.2(a), Section A3.2(a)(i), Section A3.2(a)(i)(1), Settlement | Comments closed

SA 03.2.1.1.2

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(2) If the contract measures “in-print” by units sold or measures other than revenues, then an equivalent principle will be applied in determining whether this Test 1 has been met. The fact that a Book or information about a Book is included in a database or that information about the Book is provided in search engine results does not, by itself, mean that the Book is “in-print.”

Also posted in Attachment A, Section A3.2, Section A3.2(a), Section A3.2(a)(i), Section A3.2(a)(i)(2), Settlement | Comments closed

SA 03.2.1.1.3

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(3) A Book is not “in-print” if the author-publisher contract provides for reversion to the Author of rights in the Book and all of the criteria for reversion have been met (except that the Author need not have sent a request for reversion to the Publisher).

Also posted in Attachment A, Section A3.2(a), Section A3.2(a)(i), Section A3.2(a)(i)(3), Settlement | Comments closed

SA 03.2.1.2

One response to “SA 03.2.1.2”

  1. ehasbrouck says:

    Many publishers are trying to define an “e-book” or “Kindle Edition” as a “new edition of a book” rather than a license of electronic rights. The failure to include in this section a requirement for a “new edition” to be in hard copy means that a publisher could try to use a “Kindle Edition” to satisfy the “in print” requirement and delay the reversion of rights. (Publishers would want to do this in order to share in the Revenue Model revenues, since once the rights revert the author could licnse the book directly as self-publisher of an electronic version, for 100% of the revenues.)

(ii) Test 2:

To the extent consistent with any rights in the Book that it may have under the author-publisher contract, the Publisher publicly has announced to the trade that it has undertaken concrete steps to publish an existing or new edition of the Book, and such edition is published within twelve (12) months of the announcement.

Also posted in Attachment A, Section A3.2, Section A3.2(a), Section A3.2(a)(ii), Settlement | Comments closed

SA 03.2.2

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(b) If neither of the Tests in Section 3.2(a)(i) or (ii) is met, then the Book shall be classified as Out-of-Print.

Also posted in Attachment A, Section A3.2, Section A3.2(b), Settlement | Comments closed

SA 03.3

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Procedures for Changing Classification of a Book.

Also posted in Attachment A, Section A3.3, Settlement | Comments closed

SA 03.3.1

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(a) An In-Print Book shall be reclassified as an Out-of-Print Book if, pursuant to Section 3.2(d)(i) (Basis for Determination) of the Settlement Agreement such Book is determined to be not Commercially Available unless, pursuant to Article III, an Author or Publisher of such Book (or the Author directors or Publisher directors of the Board of Directors of the Registry, respectively) demonstrates to the Registry, and the Registry finds, that such Book meets either Test 1 or Test 2.

Also posted in Attachment A, Section A3.3, Settlement | Comments closed

SA 03.3.2

One response to “SA 03.3.2”

  1. ehasbrouck says:

    This clause would substitute the arbitration procedures of the settlement for the procedures provided for by existing publisher-author contracts for detemining whether a book is “in print”. This is one of the several ways that the settlement would alter exisiting publisher-author relationships and contracts, in ways generally advantageous to publishers and detrimental to authors.

(b) An Author or Publisher of a Book, or the Author directors or Publisher directors of the Board of Directors of the Registry, respectively, challenging the classification of such Book as In-Print or Out-of-Print shall file a notice with the Registry with evidence (such as contracts, royalty statements, or trade announcements) sufficient to establish whether that Book meets either Test 1 or Test 2 (such evidence may, if no documentary evidence is reasonably available, include an affidavit).

Also posted in Attachment A, Section A3.3, Section A3.3(b), Settlement | Comments closed

SA 03.3.3

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(c) The Registry shall notify the other party of such challenge and evidence. If the other party, upon receipt of such notice, does not object and provide evidence rebutting the challenge within one hundred twenty (120) days from the time such notice is sent by the Registry, and the Registry finds that the evidence is sufficient toestablish whether or not the Book meets either Test 1 or Test 2, then the Registry will deem the challenger’s evidence dispositive and will promptly change the status of the Book from In-Print to Out-of-Print, or vice versa, as appropriate.

Also posted in Attachment A, Section A3.3, Section A3.3(c), Settlement | Comments closed

SA 03.3.5

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(e) Any such determination by the Registry shall be final, provided, however:

Also posted in Attachment A, Section A3.3, Section A3.3(e), Settlement | Comments closed

SA 03.3.5.1

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(i) A determination by the Registry that a Book classified as In-Print should actually be classified as Out-of-Print shall not preclude the Publisher of that Book from subsequently publishing the Book that would result in a further reclassification of the Book as In-Print, provided doing so is consistent with the terms of the author-publisher contract.

Also posted in Attachment A, Section A3.3, Section A3.3(e), Section A3.3(e)(i), Settlement | Comments closed

SA 03.3.5.2

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(ii) Nothing precludes the Author of a Book from at any time challenging the status of that Book as In-Print on the ground that the Book fails to meet either Test 1 or Test 2.

Also posted in Attachment A, Section A3.3, Section A3.3(e), Section A3.3(e)(ii), Settlement | Comments closed

SA 03.3.6

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(f) If (i) a challenge to the classification of a Book or group of Books is brought by the Author directors or the Publisher directors of the Board of Directors of the Registry pursuant to Section 3.2, (ii) such challenge is brought before the Board of Directors and (iii) the Board of Directors is unable to make any determination pursuant to Section 3.3(b), then the matter shall be submitted to dispute resolution pursuant to Article IX (Dispute Resolution) of the Settlement Agreement.

Also posted in Attachment A, Section A3.3, Section A3.3(f), Settlement | Comments closed

SA.03.3.4

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(d) If the parties have each timely submitted evidence and have not resolved the matter between them within sixty (60) days from the date such evidence is submitted to the Registry, the Registry will determine whether the evidence submitted establishes that the Book should be classified as In-Print or Out-of-Print under Section 3.2 by reviewing each party’s documentary submissions, as well as any other relevant evidence submitted by the parties, including documents, affidavits, the course of dealing between the parties, or industry standards and practices.

Also posted in Attachment A, Section A3.3, Section A3.3(d), Settlement | Comments closed