The Productivity Commission and Copyright from an Author’s Perspective
The Productivity Commission is currently reviewing current IP laws in Australia, and has compiled a draft report with proposed changes. Intellectual Property (IP) also covers copyright, so there are somethings I wanted to address, from an author’s perspective. Time allowing, I’ll hopefully write a series of these posts addressing each point (be warned, it’s an involved and lengthy response).
The current copyright law in effect for Australia is the Copyright Act 1968. So…fair call, it’s probably way overdue for an overhaul. Technologies have been created that greatly effect copyright. For eg; video – now superseded in some domains admittedly, but recording television shows to video and hard drives wasn’t really around when this act was drafted. There are some exceptions that have beend added, but again, this is generally before digital publishing and e-books, or iTunes, streaming, blogging, torrent, etc.
What is copyright?
In a nutshell, because the Copyright Act 1968 is quite long and involved, copyright for an author:
- Activates as soon as I start writing a novel. I don’t have to register it with an agency, I can copyright it myself (using that c in a circle symbol), and voila, that piece of work is mine.
This means I can:
- sell it
- perform it
- publish it
- adapt it
- communicate it – because it’s my work, and I can do with it as I please. When I sign a publishing contract, I sign over certain rights (not all), for a certain period of time (not forever), and there is a mechanism (difficult to exercise with some contracts, admittedly) to obtain those rights back, if I wish.
Some things that can’t be copyrighted:
Ideas: ideas can’t be copyrighted. Your idea has to be tangible for it to draw copyright, and even then there are limitations.
Eg; if I have an idea for a book, it’s not copyrighted. If I write the book, then the words are copyrighted. I can create a story, for example, of a young girl torn between a vampire and a werewolf, but I can’t use any characters from the Twilight series, nor can I copy swathes of that novel and convert to my own means (that would be plagiarism, incidentally).
Facts: known facts are not copyrightable, but the expression of those facts can be. For example, if I write a book that includes facts about PTSD, this is not copyright infringement – they’re facts. The facts themselves aren’t ‘owned’ – but the medical reports, essays, articles etc. that those facts are written in are copyrighted material.
E.g.; a calendar is not copyrightable, as the calendar itself is a widely recognized work, and nobody knows the author of the very first calendar ever. Same with the time, distance and weight tables, etc. These are known facts, with no actual ownership attached.
Titles and Names: titles, names, short phrases and slogans can’t be copyrighted. That includes titles for books, movies, songs, or a character’s name, or even my own name. Some work can be trademark protected, e.g.; store/business names, but generally speaking, particularly with writing books, just because I use a John or a Matt or a Melissa doesn’t mean I own those names, or that nobody else can use them.
Please note: using a name in a work is different to using a character. I can write about a guy named Tony Stark, but I can’t write about the Tony Stark from Marvel’s Iron Man series. Not that I would, though, because I highly respect and value that team and their creative work. Author Paula Roe and I created a workshop, with notes on writing the Alpha Hero vs the Alpha Hole. Although we thought up this term (on a plane trip from a conference, as a play on words for A-hole or arsehole, ‘scuse the French), this doesn’t – and hasn’t – prevented others from using the term.
There are other un-copyrightable things – e.g.; fashion, works created by the U.S. Government (but AU, UK and other governments can and do employ their copyright protection to some works), but those listed above are what largely affects me as an author (or technically, a creator or inventor of literary works).
Now that we know what copyright covers and doesn’t cover (in principle), let’s look at some of the proposed changes:
I have to quote the Productivity Commissions Draft Report here, just so I don’t get it wrong. The Productivity Commission states (and I’m seriously trying not to laugh, because it’s so unfunny):
The evidence (and indeed logic) suggests that the duration of copyright protection is far more than is needed. Few, if any, creators are motivated by the promise of financial returns long after death, particularly when the commercial life of most works is less than 5 years.
Er, no. No, no, no, and hell no. I can’t begin to imagine how they came to this conclusion.
An author spends considerable time and effort writing their work. Fact. Some authors write on spec – this means they’ll write their story (or at least a partial manuscript which consists of the first 3 chapters and a synopsis), and send it to the publisher in the hopes it will be picked up. This means that while they are doing the work, they aren’t actually getting paid for the work. Some writers will attract an advance, if they’re lucky, which means they’ll get an up-front amount that will have to be ‘earned out’ through sales. If this is the case, they won’t see any royalties from a book until they have ‘sold out’ their advance amount.
Writing a book can take months (in some cases, years). When it’s completed, if a publisher does decide to publish it, a contract is drawn up, and the author signs over certain rights (not all) for a certain length of time (not forever). These ‘leased’ rights include digital publishing, and as far as I’m aware, in this current digitally advanced climate, the only time a digital book is NOT for sale is if it’s been actively removed from the retail space by the publisher (or retailer). A standard royalty rate for works can be from 6% of cover price for print copies (there are contracts that will offer more or less, and depending on whether it’s sold direct or through a third party or even another country) or 30% for digital copies (again, just a run-of-the-mill amount, this can vary). An author’s main source of income will be the sale of their books, and as you can see, a lot of books would need to be deemed a ‘workable income’ for an author. Many authors don’t reach that level, and subsidise their writing with full or part-time jobs, as their book sales aren’t enough to be their primary source of income.
As an author, I’m constantly instructed to ‘build my backlist’. Basically, this means keep producing stories. If a reader reads my latest book, they might like it enough (fingers and toes crossed) to go searching for my previously published books to purchase/read. This has happened to me (thank you, readers!), and I have done it to other writers whose works I’ve read and have decided I MUST read more. Invariably, these books may have been written more than five years earlier. Especially for a digital book, purely because it costs much less to store an electronic file than it does to print, freight and store a hardcopy. My own publisher often re-prints authors’ books, so it’s not unheard of to find a print version of a book that’s been written ten or more years earlier.
Another point raised on Page 114 of the draft report states (and I quote):
- literary works provide returns for between 1.4 and 5 years on average. Three quarters of original titles are retired after a year and by 2 years, 90 per cent of originals are out of print
Oh. My. God. Seriously? No. Wrong. Wrong. Dead wrong. I’m an author who wrote my books in Australia and have sold them both nationally and internationally. I still receive ‘returns’ for my first ‘literary work’ published in 2011. Admittedly, I’m still a relative newbie to the publishing landscape, and only just clocking up to that 5-year mark now, and yes, I earned far more in the early days when this particular work was released than I earn from this particular work now, but I find with each release of a new work, readers are going back for the old works (again, thank you, readers!). Five years and counting, Productivity Commission.
There doesn’t seem to be any consideration for the digital editions of works. Does out of print include digital versions? Because this is so wrong, I’m still reeling. In this day and age, books are produced in both digital and print formats, which means ‘literary works’ still provide returns, ongoing. I’ll let you know when it stops, but it hasn’t as yet. None of my works have been ‘retired’, but the Productivity Commission seems to believe this is the average lifespan of a book. On one hand, I’m giddy that as per their conclusion, I’m not an average author. On the other hand, I’m saddened and frustrated as I know many other ‘above average’ authors this assumption applies to, and the disadvantages inherent to all of us if the proposed changes go through based on inaccurate information are considerable to our potential ability to produce an income.
So, in my view, some of the conclusions the Productivity Commission has based their proposed changes on are severely flawed. Books are still viable after 5-7 years of publication, and still a much-needed source of income for an author.
This is my first argument (and there are many), against the proposed changes by the Productivity Commission – others including the proposed changed to the term of copyright and the Parallel Importation Restrictions – but I’ll leave those for another day.
Please feel free to comment, and if you think I’ve misunderstood these conclusions, or that my conclusions are flawed, please feel free to educate me – because I think it’s important to understand this draft report and the ramifications for authors. Submissions to the Productivity Commission close Friday, 3rd June. If you’d like to make a submission, click here for instructions on how to do so.