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The following publishing industry article addresses some of the legal issues arising for publishing lawyers, entertainment attorneys, authors, and others as a result of the prevalence of e-mail, the Internet, and so-called “digital” and “electronic publishing”. As usual, publishing law generally and the law of the digital right and electronic right specifically, governing these commercial activities, has been slow to catch up to the activity itself. Yet most of the publishing industry “gray areas” can be resolved by imposing old common-sense interpretations upon new publishing lawyer and entertainment lawyer industry constructs, including the digital right and electronic right, and others. And if after reviewing this article you believe you have a non-jargonized handle on the distinction between “digital right” and “electronic right” in the publishing context, then I look forward to hearing from you and reading your article, too.

1. “Electronic Right[s]” And “Digital Right[s]” Are Not Self-Defining.

All publishing lawyers, entertainment attorneys, authors, and others must be very careful about the use of jargon – publishing industry jargon, or otherwise. Electronic and digital publishing is a recent phenomenon. Although as a publishing lawyer and entertainment attorney and unlike some others, I tend to use the phrase “electronic right” or even “digital right” in the singular number, there probably tends to be no single consensus as to what constitutes and collectively comprises the singular “electronic right” or “digital right”. There has not been sufficient time for the publishing, media, or entertainment industries to fully crystallize accurate and complete definitions of phrases like “electronic publishing”, “web publishing”, “electronic right[s]“, “e-rights”, “digital rights”, or “first electronic rights”.

These phrases are therefore usually just assumed or, worse yet, just plain fudged. Anyone who suggests that these phrases alone are already self-defining, would be wrong.

Accordingly, anyone, including a publishing lawyer or paralegal representing a book publisher or entertainment lawyer representing a studio or producer, who says that an author should do – or not do – something in the realm of the “electronic right” or “digital right” because it is “industry-standard”, should automatically be treated with suspicion and skepticism.

The fact of the matter is, this is a great era for authors as well as author-side publishing lawyers and entertainment attorneys, and they should seize the moment. The fact that “industry-standard” definitions of the electronic right and digital right have yet to fully crystallize, (if indeed they ever do), means that authors and author-side publishing lawyers and entertainment attorneys can take advantage of this moment in history.

Of course, authors can also be taken advantage of, too – particularly those not represented by a publishing lawyer or entertainment attorney. There is a long and unfortunate history of that happening, well prior to the advent of the electronic right and digital right. It has probably happened since the days of the Gutenberg Press.

What Kinds of Electronic Check Conversion Exist?

There are two major types of electronic check conversion – electronic check conversion and electronic check conversion with check guarantee. Before jumping into the key difference though, it’s helpful to spend some time explaining electronic check conversion in general.

Electronic Check Conversion Explained Using Credit Cards

The best way to explain electronic check conversion (and even electronic check conversion with check guarantee) is to point to credit cards. Years ago, instead of swiping credit cards into an electronic reader, merchants had to physically place them into a metal contraption, along with a two-piece carbon form. A heavy roller created an imprint of the credit card. After signing the form, one copy stayed with the store and the other went to the purchaser.

But in the last twenty years shoppers and stores forego using extra paper since everything is stored electronically thanks to the electronic reader. With electronic check conversion an amount is entered and the check is scanned, much like credit cards today. When the transaction is complete the check is given back to the customer since everything is stored electronically. As with current credit card transactions, the business no longer needs to have an ‘extra paper trail’.

Electronic Check Conversion Benefits

Electronic check conversion electronically records the transaction thanks to the check reader attached to the credit card terminal. Also like credit cards electronic check conversion or electronic check conversion with check guarantee, will decline a check if there is a problem with the account.

This helps reduce fraud. Any check a merchant gets is electronically verified against a database of closed accounts or accounts with risky histories. Although the businesses cannot see specifically what the problem might be, it will red flag any negative marks in the last 90 days and declines the check. This could be anything from a closed account to bouncing checks.

If the check passes the negative database, it is then converted to an electronic debit and the funds are deposited into the merchant’s bank account. This happens if the check writer has sufficient funds in his.

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