Publisher permission needed to digitize an out-of-print book?

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  • Hello Copyright Crusaders: I believe I am in the clear on this, but am asking to be sure.

    A faculty member has asked me to scan and digitize a textbook he co-authored in 1978. The book is no longer in print. He plans to make available portions of the electronic version of the book to future students.

    This person will be signing a standard copyright agreement form that we give to anyone who requests digitization services. The other two co-authors of this book, who no longer work for this college, will be signing as well.

    The book was published by a now-defunct publisher who was subsequently bought by McGraw Hill.

    Is it necessary to also get permission from the publisher? Is this a fair-use exception?

    Thanks very much, in advance.
  • This really depends on whether copyright was transferred to the publisher, and whether it has every reverted to the authors.

    The chances are very good that the copyright was transferred to the publisher back when the book was first accepted for publication. Sometimes those contracts had clauses that said the rights would revert to the author when the book went out-of-print. Often, the author had to affirmatively reclaim the copyright.

    If there was a transfer and no reversion or reclamation of the copyright, it is the publisher's permission (or, in this case, their successor entity) that is required. Permission from the authors really means nothing if they no longer owns the rights.

    We had this exact situation at my institution, except that the faculty member scanned the book himself. Shortly after it went up on his web page, he was notified by the publisher that he was infringing their copyright, which had been transferred to them, and he was required to remove the work.

    One can always make a fair use argument, but here I don't think it is the best support for the proposed project. I would prefer to have the author contact the rights holder (assuming that, as I have suggested, they are different). For a 30 year old textbook, I doubt the publisher will refuse permission, especially when it is sought by one of the original authors.
  • Thanks for the new moniker - Copyright Crusaders!

    Someone please correct me if I am wrong but if the authors not the publishers hold the rights to the work then the three authors are the ones who need to give permission. I just checked the verso of three random books on my office shelf. One has the copyright holder is the author, but the other two are the publishers. I assumed all three would be the authors. I think as long as you checked the volume yourself and you are sure the authors hold the rights then you are correct.
  • Hi again C.C.'s!

    Thanks for the quick response.

    I just ran up and grabbed the book (we have a copy in the stacks). The verso says "Copyright 1978 Petrocelli Books". This is the defunct publisher, bought by McGraw Hill. So according to what's been said, and without any confirmation of copyright being transferred to the authors, it looks like I need explicit permission from McGraw Hill, correct?

    I will be meeting with this faculty member shortly, to get a better grasp on exactly what he wants to do with the digitized version. I don't think he will be posting it to a public website, it may be more like distributing copies on CD to students. I'm not sure that make much of a difference except for the fact that the publisher would have a harder time finding out.

    I will post more when I know more...
  • I don't think there is much of a fair use argument to be made when you digitize (copy) the entire work. I assume you didn't or will not digitize it in some way that transforms the work or gives it a new use?

    I like the old adage, "It's easier to be forgiven than it is to get permission," but not in this realm. I think you need to have this author (these authors) talk to McGraw Hill. Obviously the outcome is uncertain. Does s/he have a copy of the original 1978 agreement with McGraw's predecessor?

  • Hello again all --

    Yes, one of the original authors and I have since contacted McGraw-Hill and described the project, which is to put the book onto CD for distribution to students in Ghana, where this faculty member will be teaching for a semester this Fall.

    McGraw-Hill directed us to their "Photocopying for Educational Use" form on their website. We submitted our request, which they will review and then use to give official authorization (we hope!).

    I thank everyone for their advice. The Copyright Advisory Network is a great service.


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