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Regardless of the outcome of New York Times Co. Inc. v. Tasini, the concerns it has prompted point to the need for negotiators and contract drafters to be sensitive to the rights actually transferred by content licenses and the need to capitalize on continuing improvements in information technologies that may affect such rights. The drafter of a content license can avoid those risks by anticipating technological changes in the license grant and specifying exactly how those rights will (or won’t) be affected as a result. As a starting point, assume that the license purchases only the First North American Serial Rights (i.e., first hard copy publication only) unless the contract specifies otherwise. Then negotiate electronic publications and distribution rights both for current technologies and for media now unknown but that may be developed in the future. A sample provision of the contract would be: Author-focused: The publisher agrees that the above fee purchases one-time North American Serial Rights (i.e., first hard-copy print publication rights) only. All other rights, including commercial electronic reproduction, transmission, display, performance or distribution of the Article, are fully reserved by the writer. Publisher-focused: The author agrees that the above fee purchases all rights, including the right to edit and create derivative works from the Article, and the right to any and all commercial reproduction, transmission, display, performance or distribution of the Article or any derivative works based on the Article via any means currently existing or developed or discovered in the future. This sample clause is intended to serve solely as an exemplar and may need to be modified to conform to the legal requirements of your jurisdiction. It in no way constitutes legal advice.

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