Re: L.Rev (C) Release

On Mon, Oct 25, 1999, John Kasdan <kasdan[_at_]columbia.edu> wrote:
>
> I recently received a proposed contract from a law school (which shall
> remain nameless) IP Review. The clause that got to me was:
>
> 3. Grant of Rights. The Journal shall have the exclusive worldwide
> rights of first publication, and of republishing and authorizing the
> republication, of the Article in the English language, in any and
> all media now known or later developed, including but not limited to
> computerized storage and retrieval systems such as Lexis and Westlaw
> legal research systems, the Internet, and CD-ROM. The Author shall
> have the right to grant the non-exclusive right of republication of
> the article in any language other than English, after first
> publication in the English language by the Journal. (Other stuff
> about attribution and publicity.)
>
> So, as I understand it, I could place my piece on my class web site
> either with permission of the Journal, or if I translated it into
> French. I have a couple of questions about this. First, does anyone
> have any idea of why they want such a right? It's not like there's
> any money in all this. Secondly, do people in this group sign such
> things? The Journal assures me that they have been using this clause
> for a while and that no one has objected. I can't imagine anyone who
> is publishing in an IP review even contemplating granting such broad
> rights.

I've routinely changed such contracts and mailed them back/ Believe me, in my field, (academic librarianship) this type of hand it all over, is often challenged, even for publishers who say if you change our contract we won't publish your article. In fact, for publishers saying that on their forms, I still change them I don't know if the change itself is "legal" but they publish when I change them. I've changed contracts for Elsevier, Haworth, etc. For some (notably Haworth) I've had exchanges of letters, phone calls, etc. and they still publish the articles.

And I know a fair number of authors who do not accept such contracts even for academic publishers. I have no idea how publishers could keep track of such changes, in reality. The TRLN standard advice is to retain certain rights, no matter what these contracts state.

Also, when I've asked about "what further income did you have from my article beyond first publication" publishers have responded in a variety of ways.

The inform me that they don't track on an "individual article" level. Or that they only track on a journal level, or that republication in any format, or income from document delivery is such a small portion of their income that they don't track at all on individual (even journal title level) in the "rights" area except as a general figure.

All of these answers are intersting in that they suggest even if Tasini or anyone else WANTED to modify a contract with a publisher, or even was successful in doing so, you probably couldn't really know unless you had access to those second and third party distributors internal data to find out what had happened to your article.

Also, I thought (and I defer to all the lawyers on this list on this) that in contract law you can't give or sell what you don't know about, I.e. these general you can have any rights this might entail is probably not enforceable. I can't sell or give you electronic rights if they aren't enumerated. A general sweeping attempt (as this contract is) shows no signs of true negotiation, and may well be meaningless beyond first serial rights anyway.

I'm ready for an ASCAP type system!!

I've been interested in seeing at least one author provide a piece he wrote in French on the web. I wonder if he is caught in this same type of contract (in other language clause) that is being suggested below.

Chuck Hamaker
Head, Technical Services
University or North Carolina Charlotte
<cahamake[_at_]email.uncc.edu> Received on Tue Oct 26 1999 - 12:05:19 GMT