Important Principles of Publishing Law
Although the basic principles of publishing law generally remain unchanged, the law that governs the publication of books, magazines, newspapers and – in particular - their digital equivalents is constantly evolving. This constant evolution is necessary now more than ever, due to the impact the internet has had on how material is distributed, and the increasing importance of digital copyright law. In today’s digital age, what is legal in one country may not be permitted in another, and this patchwork of very different sets of laws represents a real problem for authors and publishers throughout the world.
Unsurprisingly, the countries of the world have attempted to regulate this by means of international treaties. There is now the International Court of Justice at The Hague (mainly referred to for war crimes), and the European Court of Human Rights in Strasbourg. However, these only operate in certain jurisdictions and their judgements are usually regional rather than global. There is no truly global International Court, and although many feel that the internet requires something similar, it appears to be a long way away from actually happening.
Despite the aforementioned problems with the application of international publishing laws, copyright law is relatively well enforced globally. This is due to one of the world’s longest-running treaties, the Berne Copyright Convention of 1886, now acceded to by over 160 countries. The Berne Copyright Convention obliges members to apply reciprocal ‘national treatment’ in their own courts to works produced by members of other member states. The TRIPS Treaty also requires member states to enforce copyright effectively.
Copyright is a form of intellectual property that exists from the moment a work of creative, intellectual or artistic nature is created in a fixed, tangible form of expression (Ideas and information are not covered by copyright law – only the form and manner in which they are expressed is.). Copyright grants the creator of an original work exclusive rights to its use and distribution – usually for a limited time. In the case of works made for hire, the employer - not the creator of the work - is considered the author. Updated in 1988 and unchanged ever since, the Copyright, Designs and Patents Act 1988 remains one of the key principles of publishing law.
Assignments & Licenses
An assignment of copyright is a transfer of ownership of the copyright. By assigning your copyright to another person or organisation, you are effectively providing them with the legal right to exploit the material however they wish. You will no longer own it; the recipient of the assignment will have full rights to the material. And if you publish your work after you have assigned it to another party, you are committing copyright infringement – even though you were the original author of the work.
If you grant someone a copyright license, you retain ownership of your copyright but give the other party permission to use some or all of your copyright rights. You may grant a publisher the rights to publish your work in print and/or as an ebook, but retain the right to create an audio version of your work. Any type of right can be retained or granted as required, which can allow the author of the work to profit by producing and distributing the work in other formats, or even expanding upon it.
Almost all publishing agreements should be in writing. Whilst English law does allow for unwritten contracts, those contracts which involve assignment of copyright or a licence of copyright within the meaning of the legislation must be in writing. Even where a publishing agreement does not involve an assignment or license, getting the terms of the contract written down is always a good idea. A written agreement provides evidence that the contract actually exists, helps ensure that all parties are ‘on the same page’, reduces the risk of a legal dispute occurring and also helps with the resolution of a dispute should one arise.
Payments and Royalties
A publishing agreement will usually state methods of payments to the author, which are typically either by the payment of an agreed fee or by the payment of royalties. With royalty payments there may also be an advance, which will need to be earned-out before any royalty payments commence. Publishing contracts that are based on assignments of copyright usually include up-front, fee-based payments, while payments made under licences of copyright are often royalty-based. In practice, however, many publishing contracts combine assignments and royalties or licences and fees.
Infringement of Legal Rights
There are multiple ways in which an author’s legal rights can be infringed when a piece of work is published. For example, a work could infringe copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or any other intellectual property rights. Because of this, it is vital that publishing companies fully research the work they are given to publish, and authors are fully aware of the rights they hold in their work.
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