Copyright – Publishing
Why is copyright important for the publishing industry?
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.
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.
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.
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.
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