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Why is copyright important for the
publishing industry?
Copyright applies to most publications, irrespective of
the literary quality, whether published in hard copy or
electronically.
The business of a publisher revolves around the
developing of books, magazines and other publications
which are usually subject to copyright protection and
which are offered for sale and sold and distributed for
money.
Copyright is therefore a very important aspect of the
publishing industry for authors, editors, publishers,
illustrators, graphic designers, photographers and other
creative persons contributing to the final product.
Who owns copyright in a publication?
A single publication, for instance a paper based book,
may embody a number of different "works" which are
eligible for copyright protection and which are created
and/or owned by different persons.
A traditional book publication would usually at least
incorporate a "literary work" and a "published edition".
The literary work relates to the novel or the story
written by the author. The published edition relates to
the typographical arrangement of the literary work on
the pages of the book. This includes, for instance, the
paragraph spacing, lay-out, font and page numbers. The
published edition is created and owned by the publisher.
If a publication includes, for instance, a photograph,
such photograph could constitute an "artistic work"
which is created and possibly owned by a separate
person. For example, let us consider the example of a
magazine article. X, a travel and independent writer,
emails a photo article on the Okavango Delta to the
editor of a travel magazine. It is accepted for
publication, edited and appears in the magazine four
months later.
Generally speaking, copyright in the literary work (the
narrative accompanying the photographs) would belong to
X. The author of a photograph is by definition the
person who is responsible for the composition of the
photograph, but there are a number of important
exceptions to this rule. If, for instance, spouse
commissioned and paid a professional photographer to
take the photographs that form part of the travel
article, the copyright therein would belong to the wife.
Furthermore, the magazine publisher would own the
copyright in the published edition of the version of the
article as it published in the magazine. Therefore, even
though X and his wife hold copyright in the literary
work and the photographs respectively, they could be
infringing on the magazine's copyright in the published
edition, if they make unauthorised photocopies of the
article as it appears in the magazine and send it to all
their family and friends.
From the example above, it is evident that a single
magazine article, or a single page or chapter from a
book for that matter, can embody different copyright
works. What is more, the copyright in each such work can
belong to totally different persons. To complicate
matters further, copyright gets passed down to the
author's heirs, if he or she dies before the copyright
expires.
Recommendations for authors:
Authors are usually individuals who do not work with
copyright agreements on a daily basis. When dealing with
a commercial publisher, you may be requested to sign a
publishing agreement to authorise the publisher to
publish the work and sell the publication.
Most publishing agreements make provision for the
assignment of the copyright of the author's literary
work. Most agreements also provide for the author to
warrant to the publisher that the work does not violate
any existing copyright.
Please do not wait until your manuscript is nearly
finished before considering copyright. It would save a
lot of time, money, and trouble to consult with a
copyright attorney, publisher or someone else who is
knowledgeable on copyright before starting to gather
material for your work.
Recommendations for publishers:
From a publisher's perspective, it is very important to
request authors to sign written publishing agreements.
In this regard, it is important to borne in mind that
copyright can only be assigned in writing.
It is generally necessary for publishers to take
assignment of the author's copyright in a literary work,
at least for a term. In our view, there are two
important reasons for this.
Firstly, the publisher must obtain all the rights in a
publication to be in a position to legally trade with
the final product on its own. If the publisher does not
hold all the rights in the works embodied in a final
product, it would have to involve, for instance, the
author in all dealings with the publication. This can
frustrate the workflow and income of the publisher.
The publisher must further ensure that its publishing
agreement is clear and comprehensive enough to provide
it with all rights necessary to deal with the
publication in the manner envisaged. In this regard, the
agreement must be clear on aspects like reprints,
translations, film rights, whether the publication would
be published in hard copy and/or electronic format, and
which countries the publication will be sold and
distributed.
Secondly, most publishers mandate collective rights
organisations to licence use of their publications. If a
publisher is not the owner of the copyright vesting in
the different works embodied in a publication, it would
not be in a position to mandate a collective rights
organisation. Especially in the case of learning and
academic institutions, it may be necessary to negotiate
and consider blanket licenses to authorise lecturers and
students to make necessary reproductions of published
works for study purposes.
In South Africa, the Dramatic, Artistic, Literary Rights
Organisation (DALRO) is the only collective rights
organisation which receive mandates from authors and
publishers to licence the use of their dramatic,
artistic and literary works. DALRO administers the
licence schemes for dramatic, artistic and literary
works, collect and pay over royalties to authors and
publishers. DALRO is a non-profit organisation and
requires an administrative fee for this service. For
more information on their services, visit
www.dalro.co.za.
Need further advice?
Although the above are only general remarks, it shows
how easily copyright can become a monstrous maze, even
constantly changing its own already confusing appearance
as does the labyrinth in Harry Potter and the Goblet of
Fire!
Each case must be considered on its own facts. Please
contact us, if you require an opinion or legal advice on
any copyright matter or agreements relating to
publishing. |
