Because e-books were not explicitly mentioned in most author contracts until about 15 years ago, disputes have arisen about who has the right to publish digital versions of older books. But along with other publishers, Random House, which releases Styron’s works in print, has said that clauses like “in book form” give it exclusive rights to publish electronic editions. In a letter to literary agents in December, Markus Dohle, chief executive of Random House, the world’s largest publisher of trade books, said authors were “precluded from granting publishing rights to third parties” for electronic editions.
New York Times
25 April 2010
As we bring this year to an academic close with concerts and festivals and the first glimmers and glints of who will be where next year, let us pause and examine the turning point at which we find ourselves in the intellectual property world. “How does this affect me? ” I hear you cry. The short answer is, in many ways that you may not have thought, Grasshopper.
Intellectual property relies on contracts, and contracts are, despite the opinions of their authors, written by mortals. There is no such thing as an iron-clad contract as time has a way of making its intentions known. All of the music that you buy from your favourite supplier is licensed from the author/composer/librettist under a contract. Contracts are limited by their terms and conditions. If the person drawing up the contract is neither omniscient nor incredibly precise in the language they employ, the contract may be unenforceable or offer loopholes in the terms and conditions that may be exploited by either or both parties.
When choral and band arrangements are contracted, there are a wide variety of rights that are under negotiation. Distribution, performance, duplication, medium are some of the principal rights that are covered. As you can see from the quote above, the medium through which the material is published is becoming an issue. As an author, there is a separate negotiation for audio recording rights, film rights. screenplay adaptations and extensions to contracts. Most of us who use online services for purchasing music are waiting for the day that all work will be offered as “print on demand”. We may well be waiting for a long time. Many publishers would like to see this happen as it would mean a relatively inexpensive solution to keeping a publication in print and in stock. Many authors would like to see this as it means that more of their titles are available for performance (and for sale). Why hasn’t it already happened? Read the contract.
If a contract has not specified electronic means in its terms and conditions, the author has the right to enforce the contract and not allow electronic distribution. That means opening up a renegotiation for electronic publication rights with everyone involved in the publication in question. “Everyone?” I hear you ask? The composer, the arranger, the lyricist or poet if the choral work is taken from a pre-extant text all have a say in the publication or non-publication of the piece, depending on their original contract for the piece. If any one of them does not agree the terms, the contract cannot be completed and the piece cannot be published electronically.
This is one of the reasons why films of events such as “Woodstock” have featured artists and songs. Unless all the performers agreed, including the composer and lyricist, the pieces could not be legally transmitted. It could be argued, if there were any advocates, that the pieces filmed, but not used should not even have been filmed. However, since ownership of many rock and blues songs is cloudy at best they were at least filmed. If the film distributors could not find a clear title for a composer or lyricist, the song could not be included in the film. Also if a band did not agree to their performance being distributed, no film rights. If a songwriting partnership disagreed, no film rights. For film rights read any rights and you’ll see the state of the current publishing field.
The current publishing field also has to cope with the emergence of a global market where copyright has always been specified nation by nation and in global treaties. If a country didn’t sign the treaty, any copyrighted material that entered the country had only the rights granted by the country where the material was located. The Internet can be filtered by nation so there is some form of discrimination possible. However, the licenses for publication have historically been granted nation by nation, often with differing publishing groups in differing nations. A case in point are my own books from Novello. The first three books are not licensed for sale in the US and Canada. The next four are available world wide, so Novello and MusicSales negotiated a different agreement with the holders of the publication and distribution rights.
So bear a thought for the publishers as you search for new repertoire and materials. Everything so far has presumed that for the most part the people concerned with the title want the piece to remain in print. It may surprise you that there are authors and composers, such as the late J.D. Salinger, who do not wish works to remain available after the initial contract period expires or in any altered form from the original specification.
I leave you with the contract terms offered me from Novello. Their lawyers are pretty sharp and I think that you will appreciate both the brevity and impact of their work.
In consideration of the payment set out in this Order you hereby assign to us with full title guarantee the entire copyright and all like rights in and to the product of your services performed by you pursuant to and under the terms of this Order (the "Services") for the full period of copyright including any and all renewals, revivals, extensions and reversions therein throughout the World to hold to Music Sales Limited absolutely. You hereby confirm that the payment referred to above shall be the entire payment whatsoever due to you in respect of the Services (including for the avoidance of doubt any further payment that may otherwise arise in respect of any rental and lending rights under the Copyright and Related Rights Regulations 1996) and, further, you give your consent to the Services being used in any form and in any media whether now known or hereinafter designed or invented without further payment of any kind whatsoever.Enjoy your summer and re-create!