Tag Archives: intellectual property

What If You Lost Your Copyright After 15 Years? (Protecting Copyright Term) #SaveAussieBooks


The Australian Productivity Commission has recommended that our government explore ways to reduce the copyright term from life plus 70 years (the current term in the United States) to somewhere between 15 and 25 years from the date of creation.

This affects Australian authors most immediately, but will also have a knock-on effect to creatives in other jurisdictions. In the first instance, it means that Australians can lawfully pirate your content after the expiration of copyright period in Australia. While you can still prosecute in your jurisdiction, this is practically difficult if the offender is located in Australia and never leaves. It also means Australians will be able to create derivative content from your content after the expiration of the copyright term—and their derivative will then itself be protected for the copyright term—without needing to pay you a cent.

Secondly, the Australian government can’t change the copyright period without negotiating with foreign governments. This is because we have free trade agreements with various governments which set the copyright term at life plus seventy years, not least the free trade agreement with the US. This means that if our government decides to try and change the copyright term, they’re going to start talking to your governments, and that might give your government the idea that it should also change its copyright terms.

The logic behind the recommendation is as follows:

Now the first point is indisputable. That is the public policy behind copyright term.

But the second point, I think, is very, very wrong. While many of us may never make much from our work, I believe the vast majority of us are motivated by at least the vague hope that one day we may make enough to live on, if not ‘make it big’.

A third point is that consumers have already benefited in terms of the availability of creative content as a result of the digital age. Ebook prices in Australia are often 25 – 50% the cost of print versions, and ebooks are often available indefinitely because there is no incentive to cease production. Given that consumers are already enjoying reduced costs and increased availability, what argument is there that creatives should suffer losses to further benefit consumers?

I propose to make a submission on the recommendations to address these and other points however it would be helpful for me if you could complete this survey to provide me with the information I need to back up my arguments.

Please also feel free to add your other thoughts in the comments.


5 Publishing Contract Tips and Hints

Publishing Contract

It seems there are always writers ranting against ‘loss of control’ if they choose to traditionally publish. Any such loss of control will always be governed by the terms of the contract. I am not an intellectual property lawyer, nor a lawyer in the field of publishing, but I am a contracts lawyer, and there are a few basics that are generally consistent across all contracts.

1. Make sure you understand what the contact means. What you think it says, and what it actually means in a court of law, may be two different things, and note also that which court of law is making the determination will also affect the interpretation. A clause interpreted by a US court may not mean the same as a clause interpreted by an Australian court. Generally the contract will identify which country’s laws apply, and of course with big publishing houses this will nearly always be US law, but if you are contracting with a local publisher, it may be the laws of your country of residence.

2. You aren’t expected to know what a contract means – that’s part of what your agent is for. Self-publishers will cite not having to pay an agent as money in their pocket, but an agent is providing a service to traditionally published authors, and contract interpretation (and negotiation) should be one of those services. Unless you make an awful lot of money out of your books, an agent is probably going to be cheaper than a lawyer, or at least won’t charge you a lump sum in advance. Of course the quality of the service will vary from agent to agent, as with all things, but look to your agent for contract interpretation advice and (in my opinion) advice on when you really do need a lawyer.

3. If you don’t like what the contract says, including in relation to creative control, negotiate. Nearly all contracts are open to negotiation on some points, and if you don’t ask, you don’t get. The creative control clauses can range from allowing the publisher to make wholesale plot changes without the author’s consultation to the publisher only being permitted to make minor copy-edit changes. If something’s not mentioned, don’t assume you retain control. Silence is ambiguous, not conclusive. Always ask for more than you want so you have room to negotiate down – it helps, sometimes, to ask for something you don’t want at all so you can give it up.

4. Don’t assume the publisher knows what their contract says or means! This sounds bizarre, but it’s so true and this sin ranges from small to large business. You might think large businesses have their own in-house legal, but even if they do, the lawyers aren’t always approving all changes (even if they are meant to).

I’ve seen contracts cobbled together from other commercial contracts, with managers using a clause because ‘that sounds good’ and with no clue as to what it really means. In big companies, I’ve had the experience of negotiating against contract managers (not lawyers) who may have agreed changes to contracts without running them past legal and then in the future they just trot those flawed clauses out again and again to re-use. Sometimes you can negotiate a change purely because the other party never intended it to say what it actually says!

5. For those of you are self-published authors, rejoicing in the fact you don’t have to navigate this minefield, you’re not necessarily in a better position. If you have a contract with Amazon, you fall in the category of contracts that aren’t negotiable – ‘take it or leave it’ contracts, as I call them. Mass-marketed contracts. Contracts that are not negotiated on an individual basis because they are high-volume, low-value contracts.

Amazon may not be attempting to take creative control away from you, but thisparticular type of contract, because it is a one-size fits all contract, has been subjected to rigorous legal scrutiny, and you can bet your bottom dollar it is heavily tilted in the other party’s favour. I haven’t seen Amazon’s contract, but I’ve heard it has a few potential nasties in it. Do you know what it says? Do you know what it means? You may not be able to change it, but it’s always prudent to know what you’re in for before signing on the dotted line. The absolute most basic rule of contracts is never, ever sign something you haven’t read!
    If you missed it, check out why Game of Thrones has been a success while Legend of the Seeker was a total failure here.

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    The information in this post is factual information only and is not intended to be a substitute for legal advice.

    Intellectual Property Rights for Books Explained

    Intellectual Property Rights for Books

    This is a long post. I do apologise, but even when summarised, book rights are a complex topic. I have simplified as far as possible. 

    What are intellectual property rights?

    When you write something, anything, as long as it’s original, you automatically own the copyright. It belongs to you. You don’t need to fill in any forms or register anything. The simple act of creation makes you the owner. You can use it, re-use it or change it however you please.

    So what happens when you sell a story?

    A story is not a product, like a loaf of bread. When you sell it, you do not pass over the physical item so the buyer now has it instead of the seller.When it comes to intellectual property, you don’t actually own the hard copy story or the storage media on which the digital files are kept (well, you might, but that’s ownership of the paper or electronic media, not the story).

    What you own when you own a story is the intellectual property in the story. It’s an idea. We lawyers like to call it intangible property – that is, you can’t pick it up or touch it. What you actually own has no physical existence of its own. 

    So when you sell a story, what you’re really doing is ‘licensing’ (or allowing) someone else to use your story. You can put limitations on how they can use it and for what purpose. ‘Ownership’ of the story still resides with you and you can continue to use it, subject to the rights you have sold. 

    For those of you who know anything about property, it’s analogous to an easement – if you own a piece of land, it’s yours to do with as you please. If there is an easement over that property, you can still use the property – subject to the rights of the easement that belong to someone else, such as a right to cross your land. In this case you can do anything you like with your land, except block that right of access. 

    You can do anything you like with your story, as long as you don’t infringe the rights you have granted to someone else. So what rights might you grant to someone else?

    FNASR – First North American Serial Rights

    When you sell FNASR you are licensing the right to be the first to publish the material in North America, but only once. If this is the only licence you’ve granted, all other rights remain with you. You can, obviously, only sell FNASR once, but you can also sell Reprint Rights, Anthology Rights, First British Rights, First European Rights and First Australian Rights. If the publication that bought FNASR is print only, you can also sell First Electronic Rights. However, I suggest you might want to consider keeping this for last as, once published electronically, it may discourage potential purchasers of other rights.  

    First Rights

    The right to be the first to publish a piece. It can be limited geographically or by medium. You can sell many first rights as long as they don’t overlap.

    First World English

    The right to be first to publish the work in the entire English speaking world. These rights encompass FNASR, First British, First Canadian, First Australian and any other English speaking country, so if you sell First World English you can’t sell these rights separately.

    You can also sell first rights in other languages (sometimes called Translation Rights).

    First Electronic Rights or First World Electronic Rights

    The right to be the first to publish on the internet, by email, downloadable file (e-book) or programme, on CD etc. A variation is Electronic Publishing Rights in the English Language, which is the same as First World English but limited to electronic media. When you sell FNASR it does not automatically include First Electronic Rights. This must be separately and explicitly negotiated.

    Sometimes a distinction is made between publishing on the internet and via other electronic media, but this is not always the case.

    If you publish something on your blog, you generally can’t sell First Electronic Rights.

    One-time Rights

    A right to publish your work once and once only, but not necessarily first. Someone else may have already published the piece.

    Reprint Rights, or Second Serial Rights

    Offered when the work has already been printed once, it gives a publication the right to reprint the piece. Note that self-published material or work posted to a blog or website is considered published, so you can’t sell First Rights for such work. You can sell Reprint Rights, but usually the payment is lower.
    Nonexclusive Reprint Rights gives you the ability to sell Reprint Rights to more than one publication (including simultaneously).

    Anthology Rights

    The right to publish the work in a collection. This is often a subcategory of reprint rights as anthologies frequently buy reprint material. It’s not always a reprint right, although generally there are more lucrative markets for first rights. Of course, there is an exception to every rule. Terry Goodkind’s Debt of Bones first appeared in an anthology and was subsequently reprinted as a stand alone novella. 

    Excerpt Rights

    The right to use excerpts of your work e.g. to be used in a standard testing programme.

    Small portions of a work can usually be quoted under the ‘fair use’ policy, which allows someone to quote a work as long as they use proper attribution (i.e. attribute the work to its author). The rules of fair use vary from country to country though, so excerpt rights may be desirable when someone wants to quote significant portions of a text.

    Archival Rights

    The right to archive or make works available on the internet. In short, it means the piece will be kept on file and accessible long after its publication – like an archived blog post. Beware a contract that requires you to sell archival rights! An archived piece is considered to still be ‘in print. This makes it difficult to sell other rights for an archived piece. You should try to limit any archival rights you sell to a limited time, otherwise the piece will never be ‘out of print’, severely limiting your ability to sell it again.  

    All Rights

    If you sell all the rights in your work, you can never again use the work in its current form. To resell the material, you would need to create a substantially different version. You can still take the characters and reuse them in another story, because the all rights holder does not own the characters, just the story in which they appeared.

    You should also be aware that the all rights holder can also license your work to third parties. You have essentially made the all rights holder the ‘owner’ of the work in the absolute sense in which you were the owner prior to transferring all your rights. Anything you could have done, prior to selling all rights, the all rights holder can do, include selling all the above listed types of rights.

    You do retain a nominal (or moral) right to have the work attributed to you. So the all rights holder can legally do what they like with the work, but they cannot claim credit for authoring the work.

    Moral Rights or Work for Hire

    Like all rights, except you do not even retain nominal rights. This means even a substantial revision of the work could be a no-no and you can’t use the characters elsewhere. In many jurisdictions, the author of a work has ‘moral rights’, but under work-for-hire agreements you will be required to sign a moral rights release. From a practical perspective, essentially you never really owned the copyright. Copyright instead vests in your employer or the person hiring you. This is common scenario for professional services firms e.g. employed architects creating intellectual property which vests in the architectural firm rather than the individual architect.  

    Exclusive vs. Nonexclusive Rights

    Exclusive rights means the piece must not appear elsewhere while they hold rights to the piece. Exclusive rights usually have a time limit such as one year. It would be very unwise to sell unlimited exclusive rights, as it would prevent you from selling other rights! After the expiration of the exclusivity period, the piece may be printed elsewhere.

    Nonexclusive means the piece can be printed in two places at once, as long as both publications only hold nonexclusive rights. You can see if your piece is published on your website, or you have granted archival rights to someone, you may not be able to grant exclusive rights so long as the piece remains published in those formats.

    The “nonexclusive right to display, copy, publish, distribute, transmit and sell digital reproductions” means you are allowing your material to be sold elsewhere, by someone else. You may not be paid for any of these, depending on the nature of your agreement e.g., a nonexclusive, royalty-free right has no payment attached. 

    You can continue to sell other rights to your own work, but be aware the original purchaser may also licence your piece to fee-based databases or other content sources without ever reimbursing you. 

    Fanfiction – Case Study

    Suppose you write a story using characters from your favourite role-playing game, book or movie. 

    Obviously this isn’t desirable, but many of us do this in our early days when we are still starting out writing. Later we may decide some of that material is salvageable and want to reuse it. So who owns what intellectual property? Here are a few variations:
    • Original storyline using characters from a book or game – you own the plotline, but you don’t own the characters. To sell this, you would need to change the characters;
    • Storyline derived from the game using characters from the book or game – bad idea. Go write something of your own!
    • Storyline derived from the book or game using original characters – you won’t be able to sell that story without infringing the book or game owner’s intellectual property, but you can take the characters and re-use them in an original plotline. Note that if you use the names of characters from that other work, but your characters are not actually true to the characters in that other work, the character is yours but the name is not. You could change the names and re-use the characters. However, if the character is properly the property of the owner of the other work, merely changing the names won’t save you;
    • Original plotline using original characters – the only way this would be tied to the book or game would be if you had used names from the book or game, either characters or places. If we assume you have used those names, but the characters are not true to the descriptions in the game, you can change the name and away you go.
    Essentially, you can use the parts that belong to you. You can reuse them or modify them at will without infringing any intellectual property rights, because you hold those rights, and therefore you can decide what to do with it. You can’t use or borrow any intellectual property belonging to someone else without a licence to do so. 
    This is part of the A to Z Blogging Challenge Series. If you missed the previous posts, you can find them here – A, B, C, D, E, F, G and H.

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    Author’s Note: This post is designed to provide a factual summary of the different types of intellectual property rights relating to books, but does not purport to be an exhaustive list, nor is it a substitute for legal advice. If in doubt about the rights you are signing away in a contract, always seek the advice of a qualified lawyer.