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legal The electronic media have profoundly and permanently altered the traditional means by which information is distributed. The changes have resulted in the creation o f a new bundle o f rights whose ownership remains uncertain at the present time. Great care must be taken when dealing with these issues and when entering into agreements that Electronic copyright: who's right? .in assignment, or had granted a licence in the copyright of his or her work, but has failed to consider the ownership of the electronic rights. So far the results have been inconsistent and are generally decided on the particular facts in each case. The large publishers are beginning to significantly redraft their standard agreements with a view to making the grant of copyright abundantly clear. The following is an example of an electronic reproduction clause currently used by MacMillan Publishing Company in its standard book publishing contracts: "Electronic Reproduction: To or license reproduction, inclusion which uses the writer reserved and which uses were granted to the publisher can easily become a significant source of dispute. A further result of this confusion is that the tradition and custom in the industry of avoiding written agreements is changing rapidly. Although the Courts have been flexible in terms of recognizing the older industry traditions, they will become less accepting as the larger publishers (especially) begin introducing written contracts which clearly outline the respective interests in the copyright. The likely solution to many of the procedural and legal problems associated with copyright licensing in this and in the multimedia area is the establishment of copyright collectives (such as S O C A N . C A N C O P Y , etc.). Unfortunately, such collectives are very difficult to organize and would require a great deal of initial effort and time (and likely government funding and support) to establish. In the interim, writers and publishers alike will have to proceed cautiously and ensure that these issues are specifically addressed in their present and future dealings.ee look at how these new rights w i l l be allocated. L a w y e r Carman R. Wenkoff has some warnings for writers and publishers. ELECTRONIC WHAT? Until recently, magazines and newspapers generally bought articles simply on the basis of oral agreements. The freelance contracts that did exist did not expressly address the allocation of rights in electronic media. Most license agreements (if they did exist) between publishers and writers have been traditionally vague. The following is an example of a classic "catch-all" copyright clause which, by today's standards of judicial interpretation, is relatively vague and uncertain: "The Writer hereby grants, assigns and transfers to the Publisher the full and exclusive Cormon R. Wenkoff is o lawyer and a member of the Intellectual Property Group at the Vancouver law firm of Douglas, Symes & Brissenden.The Intellectual Property Group deals extensively with copyright, trademark, industrial design and other forms of intellectual property. Wenkoff originally prepared these materials for the copyright seminar presented by the B.C. Association of Magazine Publishers and you better believe this excerpt is published with his permission. transmission of the Work fir portions thereof by copying, recording transmitting through or electronic, magnetic, laser, optical, or other means now or hereafter known or devised, onto floppy disc, computer software media, compact discs, information storage and retrieval a ^ H| < 20 systems or databases or any other high technology medium, now hereafter known or devised." or These issues become even more complicated where no written or oral contract exists between the writer and publisher. Determining right to publish the Work in all forms and in all languages out North AmerkaJthe through- World, etc." Although the example provided above appears relatively straightforward, the Courts have been reluctant to simply acknowledge the writer and the publisher really intended to also deal with new mediums which may not have existed at the time the contract was made. The legal arguments for each party are compelling and we are left with a very uncertain and unsettling dilemma. Aside from the retention of moral rights by the writer, it is debatable whether all other rights have been granted by the writer in most cases. There has been an explosion of cases (especially in the U.S.) which are now considering the circumstances where the writer had made .^^.n interesting case in the U.S. will soon provide some further guidance and answers to some of these questions. A copyright infringement case was commenced by the president of the National Writers' Union. Jonathan Tasini, against the AVit' York Times after he had sold an article to Newsda} magazine and later found out that his story had been placed on-line without his written consent There was no written contract in place for his work, however, the cheque written to him stated on the back that by endorsing the cheque he would be granting all electronic rights to Newsday. Before cashing the cheque, Mr. Tasini crossed out that statement. The defendants in this case included both the magazine and the organization that placed the story on-line (amongst others). The defendants in this case will likely agree that secondary publishers will be very hesitant in the future in assuming that primary publishers possess all ownership rights to the content that the secondary publishers are attempting to sell. As there was no written or oral grant of the electronic rights in this case, the Court may have to focus on the traditions and customs within the industry. The National Writers' Union will most likely take the position that writers who sell the rights to their work are granting only the first North American print publication rights. They will likely lurther argue that such rights do not automatically include the right to distribute the material electronically, nor do they include the right to sell electronic distribution rights to another party. It has been suggested, on the other hand, that the publishers will argue that making their magazine available on an on-line database, for which the magazine receives a flat fee (as opposed to a per use fee) is no different than publishing a hardcopy version of the work for which the magazine does not get paid extra every time these hardcopies are photocopied. The arguments for each side make sense. There is little doubt that writers and publishers alike will be anxiously awaiting the results of this case.