1. We don’t need author rights, because it’s all taken care of by the contracts
The first piece of criticism is that Australia doesn’t need any explicit author rights, because that’s all taken care of by the contracts. The main mechanism is the ‘out-of-print’ clause, which – according to a literary agent who complained about my essay – can be found ‘in every single publishing contract’.
Out-of-print clauses have long been a crucial part of the bargain between publishers and authors. A classic out-of-print clause typically provides that, if the work has gone out of print and is not available in any edition, the author can give the publisher notice. If the publisher doesn’t put the work back into print, the author can reclaim their rights. These clauses were intended to strike a balance that let authors regain their rights when they are insufficiently profitable to the publisher to justify a fresh print run.
In a recent study of 145 publishing contracts from the archives of the Australian Society of Authors (ASA), Joshua Yuvaraj and I found that out-of-print clauses were by no means universal. More than 10 percent of contracts in our sample had no such clause at all. But even where they did, few of the clauses were satisfactorily drafted. Some were frankly unconscionable. The most egregious formulation allowed authors to reclaim their rights when their work was unavailable in any edition – but only so long as they repaid any unearned portion of their advance and paid the publisher for any blocks, designs and engravings they’d made for the book at half the original cost!