Are authors’ rights ‘all taken care of’ by their contracts? Our new research suggests not.

Book authors are (almost always) the first owners of their copyrights. They typically licence or transfer their rights to publishers to get their books to market. ‘Reversion’ refers to the return of those rights to authors – for example, after a certain period of time, or where a book has gone out of print, or where a publisher holds them but isn’t actually exploiting them.

The Author’s Interest Project’s Joshua Yuvaraj recently analysed the laws of 191 countries and found more than half already grant reversion rights for authors (you can find a preliminary overview of that work here). But many of those laws reflect pre-digital era standards, and have become outdated. In some countries (including the UK and Australia) authors have no mandated rights at all, and their rights are only what’s left to them by their publishing contracts.

Joshua Yuvaraj and Rebecca Giblin of the Author’s Interest Project

We’ve regularly been told this isn’t a problem: that author rights are ‘all taken care of’ by their publishing contracts’. But is that correct? What do those contracts actually say?

Over the last year, Joshua and I have been analysing 60 years of publishing contracts from the archive of the Australian Society of Authors (1960-2014). We’ve examined the rights those contracts take, the provisions they make to return them to authors and how they’ve evolved over time. You might recall we presented the preliminary results at last year’s Independent Publishing Conference, and you can watch that talk here. But now here are some key takeaways from our more extended analysis:

Our research shows authors need better protections than contracts can provide

1. Important rights can be missing altogether

30% of the contracts we examined were missing liquidation clauses (enabling authors to reclaim rights in event publishers go out of business). 13% were missing out-of-print rights. Just 6% of the contracts we analysed provided for unexploited rights to be returned to authors.

2. Contracts can be incredibly slow to evolve

Take out-of-print clauses for example. Authors have been advocating for clear, objective criteria to define when a book is out of print for over 50 years. For example – that the book is out of print when fewer than 50 copies are sold, or the author receives less than $200 in royalties over the previous year. But despite that long history, just 6% of the contracts we analysed used objective criteria to define out-of-print status.

3. Contracts can be poorly drafted – ambiguous and inconsistent

We found all kinds of ambiguities and inconsistencies in the contracts. Important terms were commonly left out altogether, including how long contracts were to last and the languages they covered. More strikingly, publishers sometimes seemed not to understand the legal import of their own terms..! For example, on some occasions they extracted the author’s entire copyright, but then also took a licence for something covered by the copyright. That’s superfluous, since they’d already taken the whole kit and kaboodle.

These drafting errors are understandable: publishing books involves very different skills to drafting contracts. Although publishers want to do the right thing by their authors, they don’t always have the resources to do both things well.

4. We can’t expect contract drafters to predict the future

Some countries, like the United States, limit the length of copyright transfers to a maximum of 35 years. Most other countries, including Australia, have no such limit. What that means in practice is that publishing contracts typically take exclusive rights (or the entire copyright) for the entire term. In other words, a contract signed today by a young, healthy author could well endure to 2150 or beyond.

What will books look like in 2150? What will publishers look like? What will be the opportunities and challenges for authors, publishers, and society at large? We can’t possibly expect the drafters of publishing contracts to accurately predict those things. But that’s what we’re asking them to do by making publishing contracts play such a key role in defining author rights.

Granting authors baseline reversion rights would open new economic opportunities and help reclaim lost culture

Many publishers already craft clear and fair contracts that balance their business needs with their authors’ interests. Baseline rights are about providing safeguards for the problems caused by those who can’t or won’t. Modern, effective reversion rights have huge potential to help solve the biggest problems facing copyright. By updating existing laws and filling the gaps where insufficient protections apply, we can do much to improve author incomes, create new investment opportunities for publishers, and improve public access to our cultural heritage.

The world is starting to appreciate that effective reversion rights are crucial to a well-functioning copyright system. The 2019 European Digital Single Market Directive requires member states to implement laws ensuring authors can reclaim their rights where they aren’t being used (see Article 22 here). And in Canada, two parliamentary committees recently recommended the law be amended to allow authors to reclaim their rights 25 years after transfer (see eg recommendation 8 here).

What kind of reversion rights should we consider? Some of the key possibilities that author organisations have been advocating for (and that are already enshrined in legislation around the world) include:

• appropriate out-of-print rights, which enable authors to recover their rights when their books are no longer being meaningfully exploited
• other ‘use-it-or-lose-it’ rights, covering things like ebook, audiobook, and foreign territory and language rights
• liquidation rights, enabling authors to recover their works when publishers go under
• time limits on contracts – as already exist in the US and Canada

New reversion rights would help copyright law better achieve its aims by:

• giving authors fresh opportunities to financially benefit from their works;
• opening up new investment opportunities for publishers; and
• promoting ongoing availability to the public.

Rights should be developed collaboratively between all industry stakeholders and capable of regular updating to reflect evolving industry norms and realities.

We’ve made a short pamphlet summing up these takeaways which you can download by clicking here. As with the rest of the content on our site, it’s licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License so if you have an interest in these issues, please share far and wide.

Where to from here?

Over the last couple of months I’ve presented results from this research around the world, including at the headquarters of the Society of Authors (London) and in discussions with policymakers from different governments. This week I’ll be at the Frankfurt Book Fair, then off to Geneva where I will be presenting this new evidence about the important of author reversion rights at the World Intellectual Property Organisation and World Trade Organisation.

On my return to Australia in early November we’ll begin distributing the scientific paper containing our full results and begin new conversations with policymakers, author groups, literary agents and libraries about the actions that might be taken in light of this new evidence of systematic problems with publishing agreements.

Acknowledgments and thanks

Many thanks to the Australian Society of Authors for access to its archive. We note however that we carried out our research independently and that our findings don’t necessarily reflect its views. Thanks also to the Authors Guild (US), Society of Authors (UK) and the various literary agents who have assisted us in the course of this research.