Yuvaraj and Giblin (2019)
|Yuvaraj and Giblin (2019)|
|Title:||Are Contracts Enough? An Empirical Study of Author Rights in Australian Publishing Agreements|
|Author(s):||Yuvaraj, J., Giblin, R.|
|Citation:||Yuvaraj, J. & Giblin. R. (2019). Are Contracts Enough? An Empirical Study of Author Rights in Australian Publishing Agreements. Melbourne University Law Review, Vol. 44, No. 1, 2020.|
|Link(s):||Definitive , Open Access|
|Key Related Studies:|
|About the Data|
|Data Description:||Publishing contracts from the archive of Australian Society of Authors (ASA). The researchers opted for a non-probability sampling framework adopting purposive sampling to select contracts for inclusion.
The sample included 145 book contracts ranging from 1960 to 2014 (average 2.8 per year, minimum 1, and maximum 6 contracts per year), from a variety of publishers. Contracts for movie rights, plays and TV shows were excluded, as well as contracts with confidentiality clauses. A codebook was developed to code the contracts using content analysis. Scott’s pi and Landis and Koch’s benchmark was used to measure inter-coder agreement.
|Data Type:||Secondary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
“A majority of the world’s nations grant authors statutory reversion rights: entitlements to reclaim their copyrights in certain circumstances, such as their works becoming unavailable for purchase. In Australia (as in the United Kingdom) we have no such universal protections, leaving creator rights to be governed entirely by their contracts with investors. But is this enough? We investigate that question in the book industry context via an exploratory study of publishing contracts sourced from the archive of the Australian Society of Authors. We identify serious deficiencies in the agreements generally as well as the specific provisions for returning rights to authors. Many contracts were inconsistent or otherwise poorly drafed, key terms were commonly missing altogether, and we demonstrate that critical terms evolved very slowly in response to changed industry realities. In response to this new evidence we propose that consideration be given to introducing baseline minimum protections with the aim of improving author incomes, investment opportunities for publishers and access for the public.”
Main Results of the Study
Main results are:
1. Publishers are granted very broad and long-lasting rights, usually covering all languages and all territories, in exceptionally long-term contracts. For example, in 79% of the contracts, publishers took exclusive rights for at least the entire copyright term of protection. In 66% of the contracts, they took term-long exclusive rights for all territories, and in 44% they took term-long exclusive rights for all territories, in all languages.
2. Out-of-print clauses are very common in publishing contracts, but less universal than some people believe them to be. For example, 87% of the contracts had some kind of out-of-print reversion clause. However, out-of-print clauses were less common in educational and academic works and in non-fiction books. Out-of-print status very often is determined by some form of technical availability criteria, such as “out of print and not available in any edition”. However, there is not a clear definition of what “out-of-print” really means. When a more objective criteria was used to define out-of-print status in the publishing contracts, as requested by authors’ societies, in most cases it was based on the numbers of copies sold.
3. In order to reclaim their rights, authors usually have to go through long waits, facing various waiting and noticing periods, which could be: a) after the first or most recent publication (e.g., after one year of publication); b) after the work goes out of print; and c) after the notice period for the publisher to reprint the work. In the last case, the most common one (provided for in 93% of the contracts with out-of-print clauses), if the publisher fails to reprint the work or at least to commence the process of republication before the expiry of the notice period, the rights revert to the authors.
4. Although rare, some contracts also provided for “use-it-or lose-it” reversion clauses, especially to cover unexploited languages and territories.
5. Finally, most contracts provided for reversion clauses in the event the publisher goes out of business.
Policy Implications as Stated By Author
From a policy perspective, the authors propose that minimum statutory reversion rights for authors that apply regardless of the contract’s terms should be introduced in Australian legislation. They argue that minimum reversion rights can improve authors’ incomes, increase investment opportunities for publishers, and increase the public access to Australian literary heritage. They suggest the inclusion of provisions that guarantee for authors: a clear out-of-print right; comprehensive “use-it-or-lose-it” rights; a right to reclaim rights when the publisher enters in liquidation; an express right to terminate the contract if the publisher fails to provide transparent and timely royalty statements; and a right to reclaim copyrights after certain time.
Coverage of Study
|Level of aggregation:||book contracts|
|Period of material under study:||1960-2014|