Championing author rights

Associate Professor Rebecca Giblin leads the Author’s Interest Project, conducting research aimed at improving the rights of creators as well as access to knowledge and culture

Growing up, I was one of those kids you’d never find without a book. I was constantly bumping into trees and tripping over rubbish bins because watching where I was going was far less important than seeing what would happen next. But there wasn’t much to read in my house, so I was constantly hustling for my next fix.

These days my to-read pile seemingly has no end, but I’ve never forgotten that hunger for something to read, or how transformative books can be.

So it’s perhaps no surprise that my research focuses on authors’ rights and access to knowledge (particularly the role of libraries). Currently I head up the Author’s Interest Project. One of our missions is to investigate the extraordinary potential of rights reversion to help unlock new economic opportunities for authors whilst simultaneously reclaiming lost culture.

What is reversion?

Book authors are (almost always) the first owners of their copyrights. They typically license or transfer their rights to publishers to get their books to market. ‘Reversion’ refers to the return of those rights to authors – for example where the book has gone out of print, where rights aren’t being exploited, or after a certain period of time. They can open up new investment opportunities for authors and publishers, and help promote access for the public.

More than half of the world’s nations already grant statutory reversion rights to authors. But many of these laws were developed in the pre-digital era, and have become outdated.

In some countries (including the UK and Australia) authors have no mandated rights at all – just whatever is left to them by their publishing contracts.

What’s wrong with a contract-based approach?

With Joshua Yuvaraj (one of the PhD students on the Author’s Interest Project), I recently analysed 60 years of publishing contracts from the archive of the Australian Society of Authors. Our findings demonstrate that while contracts are important, they are clearly not appropriate as the sole repository of author rights.

Important rights can be missing altogether. Thirty per cent of the contracts lacked liquidation clauses (enabling authors to reclaim rights in event publishers go out of business). Fourteen per cent were missing out-of-print rights. Just six per cent of the contracts we analysed provided for unexploited rights to be returned to authors.

They can also be incredibly slow to evolve. Take out-of-print clauses for example.

Authors have been advocating for clear, objective criteria to define when books are out of print since the 1960s – more than 50 years.

Such criteria might provide that a book is out of print when fewer than 50 copies are sold in a year, or when the author receives less than $200 in royalties. But just six per cent of the contracts we analysed used objective criteria to define out-of-print status. Most publishers have now finally come to the party, but our longitudinal data shows just how slow they were to do so.

Publishing contracts can also be poorly drafted. It was common for important terms to be left out altogether - including such basic elements as how long the licence was to last, and what languages it covers. Publishers sometimes even seemed not to understand the legal import of their own terms. For example, some extracted the author’s entire copyright (rather than taking the more usual exclusive licence), but then also went on to take a licence for an activity covered by the copyright. That’s superfluous, since they’d already taken everything there was to take.

But perhaps the biggest problem with publishing contracts concerns how long they last. Eighty-three per cent of those we looked at took rights for at least the entire term of copyright (19 per cent also took rights for the entire term plus any future term in the event the copyright was extended). In Australia that’s the author’s life plus another 70 years. A contract signed today by a young, healthy author could well endure a century or more. What will books look like in the year 2120? 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.

We need baseline minimum protections for authors

Many publishers already craft clear and fair contracts that balance their business needs with their authors’ interests. We need to introduce baseline minimum protections for authors for cases involving publishers 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 this potential. Since 2014, French law has entitled authors to reclaim their rights to books that have been released for at least four years, if they haven’t received royalties for at least two. The European Union’s new Digital Single Market Directive requires member states to implement laws ensuring authors can reclaim their rights where they aren’t being exploited. Canada is currently considering recommendations that the law be amended to allow authors to reclaim their rights after 25 years. This evokes existing US law, which allows creators to terminate transfers after 35 years.

What form should author rights take?

Some of the key possibilities for which author organisations have been advocating (and that are already enshrined in legislation in various countries around the world) include:

• updated 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 e-book, 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

Appropriately drawn, such rights could give authors fresh opportunities to financially benefit from their works, open new investment opportunities for publishers and promote ongoing availability to the public. They should be developed within industry-led collaborations to ensure they work fairly for authors and publishers both. And they should be contained in regulations, capable of regular updating in response to evolving industry norms and realities. We at the Author’s Interest Project will keep working towards these reforms – so no matter what a book looks like in the year 2120, our authors will be protected.

Find out more about the Author's Interest Project

The Author’s Interest Project is funded by the Australian Research Council (FT170100011) with support from the University of Melbourne and Melbourne Law School.

By Associate Professor Rebecca Giblin