Copyright, licenses, and reversion (oh my!)

[Note that this blog post dates from October 2019. After strenuous work by the Society of Authors and its equivalents around the world, EU member states should transpose laws that make rights reversion a matter of statute under thanks to the new Copyright Directive. That means that authors in EU member states will have reversion rights no matter what their publisher says. This is something that needs to be transposed into each member state’s laws by June 2021. How that happens (or whether that happens) in the UK will depend on what kind of Brexit happens… watch this space.]

As writers we create assets all the time. Sometimes – particularly for freelance journalism – we assign the copyright to the publisher. But books have a longer shelf life, and that makes their copyright a much bigger asset.

Book deals – contracts with publishers – aren’t buying your words per se. They’re buying a license to use your words.[1] And that license can broad (all territories, all languages, all formats) or narrow.

But what do you do if your publisher doesn’t exploit that license: if your book languishes, or even goes out of print? In some countries there is a statutory right of reversion. After a period of time – or when fewer than a certain number of copies are sold, the license lapses and you’re free to resell those rights to another publisher. But that’s not the case in the UK, Australia or New Zealand at least in 2019.

Last night I was lucky enough to attend a talk and discussion at the Society of Authors. The keynote speaker was Professor Rebecca Giblin of Monash University. She painstakingly sifted through the archive of the Australian Authors Association to see which reversion rights (if any) existed in writers’ contracts.

Worryingly, 14 percent of authors didn’t have an out of print clause at all, which means that if the publisher just stops printing the book, the author has no right to reclaim their copyright and sell a license to another publisher. Of the other 86 percent of authors, some of the out of print clauses aren’t fit for purpose for the 21st century, Out of print clauses that say you can reclaim your copyright when your book was no longer ‘technically available’ made sense before e-books and POD. But now your book may be technically available, but languish unmarketed and unloved . Prof. Giblin suggested that authors ask for objective criteria (fewer than N copies sold, less than £N in royalties for a period of X months…) rather than rely on a contentious definition of ‘unavailable.’

She also pointed out that many contracts lack a clause that deals with liquidation. In the UK at least, licenses are assets that belong to the publisher and do not revert back to you when they go out of business. If you don’t have an explicit liquidation clause then your license may go to the Crown. And as funny as it is to imagine Brenda working as a publisher, I don’t think any of us fancy the legal nightmare that detangling our copyright from the liquidator’s asset list entails.

Jazzmine Breary of Jacaranda books and Emma D’Cruz of Penguin Random House talked about how their contracts work, and how licenses are what lets publishers stay in business, but also that good publishers only ask for the rights that they know they can help exploit. If your agent isn’t part of a film and TV agency, or doesn’t have a strong overseas network, you may be better selling a licence for other formats and territories to your publisher, rather than hoping your agent can sell those rights on. That certainly worked well for me: Profile Books have a great working relationship with English Language publishers in Canada, Australia/New Zealand, and an agent in the US, whereas my agent, Carrie Plitt, was great at finding new territories for translated versions.

In short – while there are some horror stories out there, your agent, your publisher and you all have a vested interest in getting your book to market and making sure it does great when it gets there: whether that market is dead tree ware, e books, audio, translations, adaptations, you name it. If you’re happy with what a publisher can do with that license, there would be no need to take it back. Reversion should only come into play when your asset isn’t being exploited by the licensee as well as it could be.

If you have any questions about contracts, conditions, or the business of publishing, I urge you to join the SOA. As one of the audience members noted last nigh, as writers, we are business people too. We’ve all got mouths to feed and doors to keep the wolves from. By working together we can try to make sure that writing isn’t just a profession that is open to those dilettantes who don’t need the money {*cough* Jacob Rees Mogg *cough*} when there are far more talented writers out there.

I’m going to stop now before I start singing trade union anthems…

[1] Professor Giblin said that she had seen some contracts in the archives where publishers had requested the copyright per se. This wasn’t usual – and oftentimes the publishers didn’t even seem to know that they’d done this as it was incompatible with other wording in the contract. This is why it’s extremely useful to have a) a knowledgeable agent and b) a membership of the Society of Authors so you can use their contract advice services! You can even join as an emerging member before you sign your first contract.

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