Like everything else related to copyright in The Digital Millennium—which, let’s face it, we should start calling The Digital Eternity—the publishing concept of “out of print” (OOP) has been turned inside out (or maybe upside down, it is hard to say, maybe both).
There was a time when an author signed up with a publisher, she was usually required to assign the copyright in her book for the life of the copyright (currently in the United States, the author’s lifetime plus 70 years), subject to a reversion clause. The reversion clause typically provided that if, after a while, the book went “out of print,” the author could ask for, and get back, the copyright, i.e., the right to print and sell copies of the book.
This common clause grew out of a time when books were physical objects. Everyone knew what “out of print” meant: the book wasn’t selling, the publisher wasn’t printing or stocking any more copies, and the copies on hand were either pulped (destroyed) or remaindered (fire-sold to dealers). Some authors reclaimed their copyrights, others did not. It was not always easy to find another publisher that was willing or able to resuscitate sales of a book that had run its course. Nowadays, the availability of self-publishing, provided a determined author’s copyright is recovered, gives the author the option to be her own second-time-around publisher.
Publishers were always happy to retain copyright in OOP books. They weren’t losing money on printing and promoting non-sellers, and if the OOP author suddenly turned out a new blockbuster, old OOP titles could be rushed back into print, thus negating the author’s un-exercised reversion right.
It was all so simple.
But today books are not only physical objects, with attendant costs of production, storage, and distribution; they are also (or sometimes only) an electronic file. It costs next to nothing to maintain an e-book in a digital file ready for print-on-demand production. So publishers could plausibly take the (digital) position that there was no such thing as “out of print,” even if there were zero actual sales going on. The digital file became the new warehouse stocked with available copies.
Authors watched their formerly recoverable copyrights slowly fade away forever into The Fog of Digital Storage and Reproduction.
Authors and their lawyers, being a canny lot, have developed an antidote to the new digital negation of “out of print-ness” by employing the age-old device of the careful definition. God and the Devil do not reside only in the details—they also inhabit the definitions in a publishing agreement. The initial authorial/legal response was to provide in the typical reversion clause that if the book were available only by some means of on-demand printing or electronic transmission or reproduction, it would not be deemed to be “in print,” i.e., it would be “out of print,” and the author could demand reversion of her copyright.
But as e-books continue their inexorable march to domination of the publishing business, publishers have required that books existing only as digital files not be automatically excluded from “in print” status. And so it has come to pass that authors now negotiate the specific and quantifiable minimum income or sales figures that will determine whether or not a digital-only book is in, or out of, print.
Reference in reversion clauses to such objective criteria was, of course, not unheard-of in the days of physical-object books. Such clauses are just much more prevalent nowadays.
Thus it appears that even The Information Age is subject to the immutable axiom of human endeavor, which is best expressed in French, “plus ça change, plus c'est la même chose.”
This advisory was prepared by Nutter's Intellectual Property practice. For more information, please contact your Nutter attorney at 617.439.2000.
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