When I was a kid, I was constantly starving for something to read. I grew up in a house without books, and was always scrabbling to find the next one. I can still see myself, 7 years old, earnestly negotiating with the volunteers at the Salvo’s to buy dog-eared donations for one cent each (5 for 4c!). At the local bookstore, with no money, knowing I didn’t belong; speeding through the latest Baby-Sitters Club instalment to finish it before someone kicked me out. Bumping into trees on the walk home from the library – of course! Staying in the story was so much more important than seeing where I was going.
Today I have the luxury of a reading pile that has no bottom, but I’ll never forget that hunger. Books were nourishment and survival. Authors had magical powers to enrapture. Libraries were the reason why I was eventually able to grow into a person who writes books of my own.
I don’t have to dig far, then, to identify the reasons why my research career and volunteer work focuses so much on issues concerning libraries, authors, and those who struggle to obtain access to knowledge.
All three groups confront serious difficulties in the copyright space. But over the last few years, it has been the treatment of authors that has troubled me most.
‘You might have noticed that, for someone who plays such a prominent role in the debate, surprisingly little of the rewards actually trickle down to you.’
Authors are always at the forefront of copyright debates. Whether it’s arguments in favour of broader and longer rights, or against new uses for the broader public, the most heated rhetoric centres around the impact on authors. But if you’re an author yourself, you might have noticed something puzzling. You might have noticed that, for someone who plays such a prominent role in the debate, surprisingly little of the rewards actually trickle down to you. Unless you’re at the very top of the tree, earning a living from your copyrights is a tricky endeavour.
If authors are so central, why does such a small share of copyright’s rewards tend to land in their pockets?
Well, despite all the rhetoric, copyright is structured around protecting ownership, not authorship. And, while authors are generally the first owners of their works, they are often obliged to give up the whole or a substantial share of those rights in their contracts with cultural investors, in order to obtain distribution or audience access.
This won’t come as news to those trying to make a living from their creative labour. As has been well documented by cultural economists, creative work is highly desired by its practitioners, which leads to oversupply. It also means that artists can be willing to provide creative labour at a lower cost than other forms of labour – charging a lower hourly rate to paint a mural than to paint a fence, for example. This all combines to drive prices down, and reduce the bargaining power of creators in their dealings with cultural investors. Creators feel pressure to accept the terms on offer, because if they don’t sign there are dozens of others jostling to do so. It’s also why, when margins are squeezed, the printers, PR team and book store staff still get paid and the author’s share is the bit that gives. It’s no wonder then that authors so often end up with such a paltry share.
This helps explain that mismatch between the rhetoric and the reality. Yes, authors are always at the forefront of those heated arguments for longer or broader rights, and against new exceptions. But, because of these ownership arrangements, investors reap the lion’s share of any benefits that result.
Incentives and rewards
To better understand what is going on here, it’s necessary to unpack what copyright is intended to achieve. In essence, it’s about incentives and rewards. Society awards copyright because it wants to incentivise the creation of works in order to achieve the broader social benefits that come from widespread access to knowledge and culture. In addition to that, we are also motivated to reward authors for their contributions of personality and labour. That’s why my colleague Kim Weatherall and I told the Productivity Commission that it would be wrong to treat copyright as being purely economic in nature. Authors’ moral claims have validity and power – and that’s why they’re always at the centre of debates about whether we should have more or less copyright.
Broken down in these components, you can see that the interests of investors and authors are different. Investors’ interests are purely economic, and we can use basic economic modelling to calculate what is necessary is satisfy them. Widely accepted calculations (including from these five Nobel Laureates and their colleagues) shows us that about 25 years of rights is ample to incentivise even the most expensive investments. Beyond that amount, copyright is justifiable only by authors’ moral claims to those above-incentive rewards. None of this is to say that investors don’t play an important role in the cultural ecosystem, or that they are not themselves often struggling to make a profit in the current environment. But it is to say that investors’ interests and authors’ interests are different, and what copyright needs to provide to satisfy them is different as well.
That’s why it’s problematic that so many investors require authors to sign over rights for the entire term – the author’s entire lifetime plus another seventy years after that. Though the investor’s interest is purely economic, all too often their bargaining power is exercised to capture authors’ rewards shares as well.
A tilted playing field
Recognising this tilted playing field, some countries have created legal mechanisms to try and level it out. In the United States, for example, authors have the right to reclaim their copyrights after 35 years. Across Europe, national copyright systems feature a wide variety of author-protective mechanisms, including unwaivable rights to equitable remuneration, ‘best seller’ clauses (securing a greater share to authors when their works enjoy unexpected commercial success), and automatic reversion to authors where the publisher fails to exploit (see a fuller description of the various systems here). None of these attempts have yet achieved all the intended benefits for authors. But at least these countries are doing something to recognise the imbalance between authors and investors.
‘This determines the voices we get to hear, and those we don’t.’
In Australia, by contrast, authors have no such protections. Instead, we have what is called a ‘laissez-faire’ approach to authors’ contracts. (That’s French for ‘let people do as they choose’, but in this context it’s really ‘freedom to sign away your rights, before anyone knows what the work is worth, often in exchange for not much at all’.) This system has real financial costs for authors. Despite operating within a multi-billion dollar publishing industry, Throsby et al found that Australian authors averaged just $12,900 AUD from their writing work in 2013/2014 (the median was even worse, at just $2,800). Their research also found that almost 40% of writers relied on a partner’s income to help make ends meet. Australia does have a public lending right (separate to copyright) which goes some small way to helping. But overall, incomes from writing are dismal. This determines the voices we get to hear, and those we don’t.
If we were to actually take authors’ interests seriously, we would focus on mechanisms that better secured to them copyright’s rewards – instead of allowing it to be overwhelmingly captured by others.
What might copyright look like if it actually took authors’ interests seriously?
The Australian Research Council recently funded a research project that will see me, together with a small team and various international collaborators, investigate what copyright could look like if it better reflected the differing interests of authors and investors. Our work will include empirical research to understand current contractual practice in the Australian trade book industry, and the effects of author-protective laws in other countries.
The hypothesis is that, if we start taking authors’ interests seriously, we can not only directly and significantly increase their remuneration, but we can enhance authors’ abilities to license their works and to keep their books being read. In turn, that can help claim back much of the cultural value that is being lost under current approaches, providing new opportunities for investment and improving access outcomes for the broader public – including libraries and all those little kids who are famished for books.
If you’re an author: we are very keen to hear your stories and perspectives, about the ways in which copyright is working for you and falling short, and what might work to improve it. We’d also be very happy to hear from publishers, agents, and others involved in the industry. Our intention is to consult widely to ensure all relevant interests inform the research. Get in touch at any time.
To follow along with this project, keep an eye on this site. In the meantime, when you see authors’ interests being used to promote or derail a particular position in copyright, ask yourself: how much would this actually help (or hurt) authors, given the way the rights in this space are divvied up? What is being done to protect the author’s (as distinct from the owner’s) interest?