As World Intellectual Property Day approaches, Simon Whaley explores how copyright helps our writing business.
Celebrating its 21st anniversary on 26th April 2021, World Intellectual Property Day recognises the impact intellectual properties have on our day-to-day lives. As writers, many of us wouldn’t have a writing business if it wasn’t for copyright, because it’s this intellectual property that enables us to generate an income from our creativity.
Therefore, if we want to make the most of our writing business, we should get to grips with the basics of copyright.
What is Copyright?
Copyright is a form of ownership protection. Its aim is to protect the creator of a piece of work from having their work copied or reproduced without their permission. Whenever you create something original, such as an article, poem, letter, short story, radio play, novel, non-fiction book, screenplay or photograph, you own the copyright in that creation. Nobody should use it without your permission.
For something to be protected by copyright, it needs to be the original work of the creator. In the UK, copyright exists as soon as your idea is expressed in a permanent format. Usually, this means when you write down your idea on a piece of paper, type it onto a document on your computer, or press the button on your camera or phone to capture the photo. When your idea has been expressed in a tangible format, it is copyright protected.
So, if you were sitting with a group of friends in a cafe or bar, chatting about a potential idea, copyright does not protect it. But as soon as somebody takes out a notebook, or scribbles it down on a serviette, then it is protected by copyright because it now exists in a tangible form.
There are 179 countries signed up to the 1886 Berne Convention, which established this automatic principle of copyright existing as soon as an idea appears in a fixed form. Writers in other countries, such as the USA, may also have additional options to register their copyright formally with a statutory authority. This entitles them to litigate for additional damages should a copyright case go to court.
How Long Does Copyright Last?
As soon as you create an original piece of work, you are the copyright holder and that copyright lasts for the rest of your lifetime, plus a further seventy years after the year of your death. If a creator dies on 1st January 2025, their copyright expires seventy years after 2025 (not seventy years from 1st January 2025).
Your copyright is an asset you should bequeath in your will, so every writer should consider this. Remember, copyright exists as soon as you create it. It has nothing to do with publication. If you have unpublished novels sitting in a bottom drawer, the copyright still exists in these documents and you should bequeath it.
Can You Assign Copyright?
Yes. When you die, if you leave clear instructions as to whom you’re bequeathing your copyright to, those people then become the copyright holder, even though they didn’t create the protected works.
But you don’t have to die to assign copyright. Once it exists, you can assign the copyright to anybody at any time. However, always take advice on this because, as soon as you do, you lose any control over what happens to your creation, and you may also forfeit the right to derive any further income from it.
How Does Copyright Help My Writing Business?
Copyright is the foundation of all of our writing businesses. When a publisher wants to publish our work, we can grant them permission to use our work in this way and charge them for this permission.
When we sell a short story or an article to a magazine, we’re not actually selling the story or article. We’re merely granting the magazine a licence (the permission) to use our work in their publication. The publisher is paying for this permission.
Similarly, when a novelist signs a contract with a publisher, they’re not selling their novel but the right to publish that novel in certain formats (such as paperback and ebook) in specific territories around the world.
Being the copyright holder gives us the legal right to issue these licenses or permissions, which we grant by signing a contract. It’s therefore vital that we understand the implications of any contract, which is where organisations like the Society of Authors and the Alliance of Independent Authors can be useful. Always seek support from organisations that understand copyright law.
What Should I Look For In A Contract?
It’s imperative you understand every clause in a contract. If you’re not clear about anything, seek guidance.
When granting permission to use your work, there are three key areas you need to be clear about: format, territory, and duration.
The format determines how our work is published. For example, many novelists grant publishers the permission to use their work in paperback and ebook formats. But there are many other formats to consider, such as hardback, large print, audio and film.
Territory clauses will clarify where your work can be used in these formats. If you’re granting a publisher permission to print your novel in English, are you granting them permission to publish it in the UK, the UK and North America, or every English-speaking country around the world?
There will be clauses that determine for how long this permission you are granting will last. Remember that if a contract seeks permission for the duration of copyright, this means you’re granting them permission to use your work for the rest of your lifetime, plus an additional seventy years.
Contracts get complicated, which is why authors frequently seek an agent to do this negotiating for them. Even if you don’t have an agent, always negotiate. Most publishers will respect this. And if you don’t ask, you don’t get!
Most magazines now issue contracts, both for non-fiction and fiction. Some are more willing to negotiate than others. Always think extremely carefully about signing a contract that you can’t negotiate. What does it stop you from doing with your work?
Can I Grant More Than One Permission?
As a copyright holder, you have full control over the permissions you grant. This means you can grant several permissions in the same piece of work, as long as they don’t conflict with any other permissions or licences you’ve granted.
If a novelist grants one publisher the right to publish their novel in English, in paperback and ebook formats anywhere in the world, for the duration of copyright, they can also grant another publisher the English hardback rights anywhere in the world for the duration of copyright. They could grant another publisher the English audio rights, and that still leaves the copyright holder with all the different foreign language rights to grant licences for.
This is the true power of copyright. If you want to give permission for someone to publish your story on green T-shirts, in English, when there’s a Z in the month, you can. You’re the copyright holder. (Whether there’s a demand for that permission is another matter!)
Are There Any Copyright Exceptions?
There are a few exceptions when people can use your work without permission. However, these are limited.
Currently, under the Copyright, Designs and Patents Act 1988, fair dealing clauses allow people to copy your work without permission if they’re using it for private research or study, for non-commercial teaching purposes, for literary review, news reporting, quotation or parody.
For the fair-dealing exemption to apply, the amount of text copied without permission needs to be reasonable and appropriate and should not affect the market for the original work. The difficulty lies in determining what is ‘reasonable’ and ‘appropriate’ and this is often where the courts get involved.
If you would like to quote someone else’s work in your project, then the safest course of action is to ask permission from the copyright holder (if their work is still protected by copyright).
What About Brexit?
Great Britain signed up to the Berne Convention in September 1886, when it was first launched, and much of our copyright legislation comes under the Copyright, Designs and Patents Act 1988. During our EU membership, our copyright legislation mirrored that of Europe, but Brexit will lead to differences.
On 17th May 2019, the European Copyright Directive became European law, and this contained two important clauses to writers. Article 19, known as the transparency clause, forces publishers to provide information to authors about which rights in our work they have exploited and how much income they’ve generated. Article 22 gives authors the right to seek a reversion of rights after a reasonable time. Together, those two clauses would have strengthened our contracts, giving us an opportunity to claw back rights in our work publishers had poorly exploited, if at all.
However, on 24th January 2020, the UK Government said it would not be adopting the European Copyright Directive. That doesn’t mean the UK government won’t implement something similar into UK law in the future, but it highlights how our copyright laws may diverge from European copyright legislation.
Copyright laws are subject to change from time to time, and there are variations across the world. But as World Intellectual Property Day approaches, perhaps we should stop for a few moments and be thankful for an asset that we can’t touch, yet has such an impact on our writing business.
Business Directory – Copyright Resources
PLR and Copyright:
If you assign copyright in your book, you can still claim PLR (Public Lending Right) in the title, as long as you are named on the title page.
World Intellectual Property Organisation: www.wipo.int
The Society of Authors: https://www2.societyofauthors.org
Alliance of Independent Authors: https://www.allianceindependentauthors.org/member-benefits/
UK Government Copyright Information: https://www.gov.uk/topic/intellectual-property/copyright
The Society of Authors Guide to Copyright and Permissions: https://societyofauthors.org/SOA/MediaLibrary/SOAWebsite/Guides/Guide-to-Copyright-and-Permissions.pdf
ALCS Copyright Basics For Writers: https://www.alcs.co.uk/knowledge/copyright-basics-for-writers/
PLSClear – an online service for finding copyright holders and seeking permission https://plsclear.com