Earlier this year Executive Director of the Authors Alliance and Copyright Research Fellow at the Berkeley Center for Law & Technology, Michael Wolfe, visited Australia and New Zealand.  He is a vocal advocate for the retention of copyright to authors.  He reflects here on the ‘Copyright and Contracts’ panel discussion at the NZ National Writers Forum. 

When it comes to issues surrounding copyright and publishing contracts, there will always be healthy disagreement in the writing world. Authors, diverse as they are, will have different priorities and strategies, and it should not be any other way. This is the spirit with which my organisation, Authors Alliance, approaches its discussions, and very much what I expected from the “Copyright and Contracts” panel at the inaugural National Writers Forum in Auckland this September.

Within that paradigm, most of the discussion was just right. I could expect and respect Paula Browning’s calls for longer copyright terms and skepticism of US-style “fair use”; although I strongly disagree with her views on those points, authors and their advocates might reasonably hold such positions. And Joan Rosier-Jones was unquestionably right to call attention to and condemn predatory publisher practices that take advantage of authors’ aspirations and hope for recognition.

But what Sam Elworthy of Auckland University Press and Copyright Licensing New Zealand proffered as author-friendly advice moved beyond the realm of polite disagreement. Elworthy was tasked with presenting the publisher’s perspective on what authors should know about copyright and contract. He may have captured some publishers’ perspectives, but unfortunately his advice was not of the sort authors ought to know.

To start, Elworthy used his first tip—that authors should clear rights to included third-party works—to cast aspersions on the quality of Creative Commons-licensed works. This casual dismissal of an enormous collection of creative work and of its authors was saddening. At a celebration of writers and writing, why should a speaker feel the need to denigrate authors and the means by which they choose to make their works available? Especially when the assertion that these works are of inferior quality is, at best, poorly informed. To start, I would direct him to books by Authors Alliance members like Cory Doctorow, Robert Darnton, Don Herzog, James Boyle, and dozens of others. In New Zealand, Thom Sleigh’s novel Ad Lib was released under a CC licence and was a NZ Listener top 100 title. But this admonition should not be necessary—as a director of a university press, he must surely be aware of the significant amount of quality scholarship presently being released under Creative Commons licences. And it is hard to imagine that he has somehow missed (or dismissed?) the myriad CC-licensed books released by his colleagues at the university presses at Oxford, Yale, Amsterdam, Duke, California, MIT . . . the list goes on. It is similarly hard to imagine that he has forgotten that some of his press’ own authors choose to publish work under Creative Commons licences. Why, then, take this position?

Otherwise, Elworthy did tell an appealing story. Assign all your rights, he said, and licensing markets will ensure your work will be translated, excerpted, and distributed around the world. That licensing revenue—some of which will come back to you in royalties!—is what makes the creative world work, he said.

Personally, as the speaker who had just cautioned attendees to carefully guard their rights, and be cautious and strategic in signing them away, I was taken aback by the prescription. Like all the most convincing and persistent myths, Elworthy’s is built around a kernel of truth. Sometimes, a given publisher is well positioned to license global rights, and its motivation to sell and market work can redound to the author’s benefit. Most business-savvy authors will likely choose to license their rights piecemeal to better maximise their returns and know their partners, and those looking to maximise public reach will look to options like Creative Commons. But all the same, many authors, having examined their options and circumstances, might nevertheless reasonably decide that carefully assigning their entire copyright to their publisher is in their best interest.

But the potential downsides of authors signing away their copyright just because the publisher thinks they should are toxic. As global copyright terms continually creep upward (now standing at 50 years past the life of the author and climbing), authors signing away their rights make an increasingly weighty commitment. Assigning all rights to a publisher that is unable or unwilling to make full use of them can serve to keep work locked up beyond the public’s reach, often with little (or difficult) recourse for the author. This is not a decision to be made lightly, and certainly not as a matter of course.

And make no mistake: even the best and brightest publishers have a lousy track record of keeping work in print, much less preserved and accessible in the formats, venues, countries, and languages that an author might find important. Today, the scale of this lack of stewardship has left the vast majority of our 20th-century literary and scholarly heritage moldering away out of print and offline.

Fortunately, it is not at all difficult to have a publishing contract reserve certain rights to the author or return those rights that go unexploited. This is why at Authors Alliance we work to provide resources and advice to empower our members to avoid seeing their work’s availability suffer from a lack of publisher stewardship or the vagaries of the marketplace. Our efforts include information designed to help authors recover their rights to their older and out-of-print titles, and materials designed to help authors thinking about releasing their work on open terms, such as Creative Commons licences. When it comes to publishing agreements, we are working on a comprehensive guide to how authors can avoid the kinds of pitfalls that might put their work in purgatory. Frankly, this is the baseline of what authors deserve, publisher presentations to the contrary notwithstanding.

© Mike Wolfe 2016 CC BY