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Copyright Law – A Guide for Publishers

  • 22 February 2024
  • Studio Legal

Written by Alyce Evans.

Whether you’re a publisher, an author, an artist, or anyone else working in a creative industry, it’s likely you’ve heard of copyright.

But when you break it down, what does this actually mean, and how does it apply to publishers and the publishing industry?

In this week’s blog, we explore the world of copyright and publishing, providing a guide for publishers on the need-to-know aspects of copyright law.

What is Copyright?

Copyright is a type of intellectual property.

It’s a bundle of rights that attach to certain ‘works’ and other materials, and is protected in Australia under the Copyright Act 1968 (Cth) (Copyright Act).

Works that can be protected by copyright include:

– Literary works.

– Artistic works.

– Musical works.

– Dramatic works.

– As well as other subject matter (including sound recordings, cinematograph films, TV broadcasts, sound broadcasts and published editions of works).

Key copyright works relating to the publishing industry are ‘literary works’ and ‘artistic works’.

Literary Works

Under Australia’s Copyright Act, ‘literary works’ that are original and created by a human author are protected by copyright.

Literary works include: books (of all genres), poems, letters, articles, blogs and more.

Rights of copyright owner in literary works

The person who created the literary work (the ‘author’) is generally the first copyright owner and has the exclusive rights to:

1. Reproduce the work.

2. Publish the work for the first time.

3. Perform the work in public.

4. Communicate the work (digitally) to the public.

5. Make adaptations of the work.

They also have the right to licence or assign their rights to others, and to take legal action against others who infringe these rights.

PS. If you’re a writer (or anyone) looking to learn more about publishing contracts, check out our blog: ‘How to Understand Your Book Publishing Contract: Top Tips for Writers‘.

Artistic Works

Under Australia’s Copyright Act, ‘artistic works’ that are original and created by a human author are protected by copyright.

Artistic works are specifically defined under the Copyright Act as:

– A painting, sculpture, drawing, engraving, photograph, building, model of a building (whether of artistic quality or not); or

– A “work of artistic craftmanship”.

Rights of copyright owner in artistic works

The person who created the literary work (the ‘author’) is generally the first copyright owner and has the exclusive rights to:

1. Reproduce the work.

2. Publish the work for the first time.

3. Communicate the work (digitally) to the public.

They also have the right to licence or assign their rights to others, and to take legal action against others who infringe these rights.

Common Myths about Copyright

When it comes to copyright in the publishing industry (and copyright in general), there are quite few myths floating around.

Before we dive into copyright infringement, and commercialising copyright, let’s dispel some of the most common copyright myths.

MYTH 1: It’s not copyright infringement if I only use 10%…

FACT: Wrong. Copyright can be infringed if someone uses the whole or a ‘substantial part’ of a copyright protected work, without a licence or the copyright owner’s permission.

‘Substantial part’ is a qualitative not quantitative assessment. This means that the court will look at what is used (and whether it is a ‘key’ or ‘material’ part of the work) rather than how much.

MYTH 2: As long I credit the original author, it’s fine!

FACT: Wrong again. While crediting the original author is generally required under moral rights laws, credits alone are not a defence to copyright infringement.

Therefore, if a work is protected by copyright, you need a licence or permission from the copyright owner to use the work.

MYTH 3: The original copyright owner has died, so anyone can use their work…

FACT: Incorrect. The duration of copyright in Australia for literary and artistic works is generally (note: there are some exceptions) the author’s life plus 70 years.

This means that copyright protection in their work continues for another 70 years after they pass.

Copyright Infringement and Publishing

Copyright is infringed if someone other than the copyright owner exercises an exclusive right of the copyright owner (or authorises someone else to do so), without the permission or licence of the copyright owner.

For example, consider the following hypothetical, which applies to the publishing industry.

– An author writes a novel (a literary work protected by copyright) and is the copyright owner of that work.

– The right to REPRODUCE and PUBLISH (for the first time) the text comprising a novel is an exclusive right of the copyright owner (ie. the author).

– If someone reproduces and publishes that novel (rights which are exclusive to the copyright owner) without the author’s permission or a licence to do so, this is copyright infringement.

Enter: Publishing contracts! A legal document between the author and the publisher, which provides a licence to the publisher to reproduce and publish the literary work.

Commercialising Copyright in Publishing

Authors of copyright protected works (such as literary and artistic works) can make money by:

– Licensing the right to use their work to others.

– Assigning (transferring) ownership of the copyright in that work to others.

Copyright licensing

Copyright owners can licence some or all of their rights in a work to a third party.

Licence Terms

The licence can be subject to certain terms (which can set out the duration of the licence, territory, permitted uses, restrictions and more).

Effect of a licence

The licensee (the party receiving the benefit of the licence) is granted certain rights in relation to using the work. However, a licence does not transfer ownership of copyright.

Do copyright licences need to be in writing?

Licences can be written or verbal. In other words, they don’t have to be in writing to be enforceable. However, verbal licences can be tricky to navigate so we recommend getting licences in writing.

Example:

In a publishing contract, the author typically licences the copyright in their literary work (the text of the book) to the publishing house for reproduction and publishing.

They may also provide a licence for ‘subsidiary rights’ (such as film and television rights, merchandise rights, audiobook rights, etc). The terms of the licence will be set out in the publishing contract.

Copyright assignment

Copyright owners can assign their rights in a work to a third party.

Effect of an assignment

The assignee (the party receiving that the copyright is assigned to) becomes the copyright owner of those rights in the work. In other words, an assignment transfers copyright ownership.

Does a copyright assignment need to be in writing?

Yes, an assignment of copyright has to be in writing and signed by the assignor (the person granting the assignment) and the assignee (the person receiving the assignment) to be enforceable.

Example

If an author hires an illustrator to create illustrations for their book, the general position at law is that the illustrator (as an independant contractor and the creator of the artistic work/the illustrations) will own the copyright in those illustrations.

Therefore, if the author wants to own the copyright in these illustrations, the illustrator will need to agree to assign these rights to the author. Importantly, this must be in writing and signed.

Navigating Intellectual Property in Publishing

The types of intellectual property (and other legal matters) that publishers work with often is dictated by the genre of the works they publish. Below are some examples of how copyright licensing can apply to different genres.

Publishing biographies, memoirs and non-fiction works

When publishing biographies, memoirs and non-fiction works, the publishers will require a licence from the author to reproduce and publish the work. When dealing with fiction, you’ll need a licence from the author to reproduce and publish the work.

You should also consider what subsidiary rights your business wants, for example film and TV rights, merchandising rights, audio book rights and more.

Where cover art, images or quotes from third parties are used, you will also need to secure the rights to use those works from the relevant copyright owners. Alternatively, you may require the author of the book they are publishing to secure that right, and then sublicense it to the publisher.

Another factor to consider is undertaking a pre-publication legal review to flag any potential issues of defamation, contempt of court, intellectual property infringement or other matters.

Publishing fiction works

When dealing with fiction, you’ll need a licence from the author to reproduce and publish the work. You should also consider what subsidiary rights your business wants, for example film and TV rights, merchandising rights, audio book rights and more.

Make sure your publishing business has the right to use the cover art, and any quotes from third parties that are used in the book. You can acquire these rights yourself, or require the author to do so (and sublicense them to your business).

Finally, confirm with your author if they have ‘based’ any characters on real people. If so, consider a pre-publication legal review to flag any potential issues of defamation.

Publishing ‘illustrated works’

We love books of all kinds, including gorgeous coffee table books and deliciously inspiring cook books.

Publishing ‘illustrated works’ comes with its own set of requirements regarding copyright licensing.

Firstly, you will need a licence from the author to reproduce and publish their literary work.

You will also need to consider each image (illustration, graphic image, photograph) and quote that is used in the work and ask:

1. Who is the author (i.e. creator) of the particular work?

In the case of artistic works, consider who is the illustrator, graphic designer, photographer or artist. For quotes, think about who said that quote or what text or other work it comes from.

2. Is the work protected by copyright?

Think about whether the ‘author’ (i.e. creator) of the work is still alive and whether copyright still protects their work.

3. Who is the copyright owner of this work?

The person who created the work is not necessarily the copyright owner of the work. If the work is protected by copyright, you will need to work out who the copyright owner is. This is the person who can grant you the rights to use it.

4. What rights do you need?

Is the work being used in the book? On the cover? In your marketing and advertising of the book? Make sure the rights you seek from the copyright owner cover all of the ways you want to use their work.

Don’t Forget Moral Rights!

Although we aren’t going into detail about moral rights in this blog, it’s very important to consider these when publishing.

Moral rights are protected under the Copyright Act, and belong to the author of a copyright work. These rights cannot be assigned or licensed (even if the copyright in that work is). The moral rights of the author of a copyright work are:

1. The right to be attributed as the author of the work.

2. The right not to have the work falsely attributed to someone else.

3. The right not to have the work treated in a derogatory way (for example, in a way that damages the author’s reputation). This is also known as the right of integrity.

Publishing and moral rights

Publishers, make sure that the work you are publishing respects the moral rights of ALL relevant authors

This includes attributing the author of the book, as well as the authors (i.e. creators) of any images, photographs, quotes or other third party works that are included in the book.

Check out our blog on moral rights to learn more: ‘Moral Rights 101: A Guide for Creatives‘.

Best Practice

Work with an intellectual property lawyer who specialises in publishing law, to ensure your publishing business is ticking all the legal boxes required when it comes to copyright.

Further Information

To learn more about publishing law or intellectual property, check out our blogs:

How to Understand Your Book Publishing Contract: Top Tips for Writers.

When Fact Inspires Fiction: How to Avoid Defamation Claims as a Writer.

Moral Rights 101: A Guide for Creatives.

If you’d like legal advice or assistance regarding publishing, please contact us through our online form or via email at hello@studiolegal.com.au.

Written by Alyce Evans

Published 8 December 2023

Photo by Alex Lvrs on Unsplash

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.