The Future Of Digital Book Rights Hangs In The Balance

There’s an important lawsuit looming that will mean big changes in the publishing industry as a traditional publisher faces off against a young “new media” house. In late December, HarperCollins filed a copyright lawsuit against Open Road Media stating that the new publisher is infringing on HarperCollins' rights by e-publishing Julie of the Wolves by Jean Craighead George. This case is the first of its kind. All eyes are on this suit as it may determine the precedent for digital copyright ownership for the foreseeable future.

HarperCollins’ suit states that the publisher’s contract with George gives HarperCollins the exclusive right to publish the classic “in book form”. But what makes the situation more interesting is that the contract, which was signed in 1971, includes the line that HarperCollins' control of the book covers any format of the work “through computer, computer-stored, mechanical or electronic means now known or hereafter invented.” 

The blog e-reads explains that a similar term, “computer storage and retrieval rights”, was common in publishing contracts at the end of the 20th century. Thus far, that phrase has been the ground that publishing lawyers stand on when claiming their ownership of e-book rights in the face of new media publishers (and perhaps, more commonly, authors looking to self-publish or change houses). But the question is should the similar clause in the HarperCollins contract, written at a time when computers were in their infancy and the very first e-book had only been created that year, govern the rights to the digital version of the story? 

Random House certainly thinks that digital formats are covered in such contracts. Early last month Random House CEO Markus Dohle sent out a letter to agents that stated, “Random House considers contracts that grant the exclusive right to publish ‘in book form’ or ‘in any and all editions’ to include the exclusive right to publish in electronic book publishing formats.” The statement is similar to the one that the company issued over a decade ago when they sued brand new e-publisher Rosetta for selling e-versions of books by Kurt Vonnegut Jr., Robert B. Parker and William Styron, which Rosetta had obtained through the author. (At that time the traditional publisher’s request for an injunction, and then an appeal, were denied.)

Several people oppose the idea that publishers' rights to e-publish are safeguarded by such general phrases as "in book form" and "computer storage and retrieval rights". Supporting this idea, Robert Gottlieb, Chairman of Trident Media Group, LLC, makes an interesting point. In a comment on the Publishers' Weekly post that broke the HarperCollins vs. Open Road Media case, he says, “The claim H/C is making that 'book form' covers electronic books does not hold water in my view.” he continues, explaining his point by noting, “If such language truly covered ebooks there would be no reason today for publisher to specifically state that ebooks are covered in the agreements they are making with authors.”

And the waters of this case are muddied because Open Road Media is selling their digital version of Julie and the Wolves as an enhanced e-book. Should extra content from the author, or any other digital additions to a book, be considered as changes that push the original work outside of the scope of what HarperCollins’ contract protects, if indeed the traditional publisher is awarded the right to be the exclusive publisher of the classic?

There are no clear answers here. If the decision is made in HarperCollins favor, then that could reduce the number of e-book editions for readers, especially from previously published books. However, if Open Road Media wins, readers may wind up seeing more of their favorite classics in digital formats. This case has more than one person wondering if it will galvanize traditional publishers have to rush out to get new contracts protecting their right to e-publish the backlist books they own? We’ll simply have to wait and see.

What do you think, should Open Road Media be allowed to continue selling enhanced e-books or are they infringing on the rights of HarperCollins? Let us know in the comments below. And for more Publishing Industry News, click here.