Writers should know some legal basics
There is good news for all writers and self publishers seeking free legal advice – there are plenty of high quality free legal resources available online. Whether you are trying to get your novel published or adding content to your own website, there are a number of guides which will help you understand the law as it relates to publishing, contracts, defamation and intellectual property.
There are few writers who can afford the luxury of 'out-sourcing' all of the time consuming work of getting to know the writing/publishing business, and fewer still who would recommend this as a good business model in any case.
Understanding your legal rights and responsibilities, along with your commercial options, will help you sustain a career in writing. Further, if you do need to speak to a lawyer, you will get the best value for money by making sure you ask questions that you could not easily find out yourself.
This article will steer you in the direction of some helpful resources and give you an overview of what type of information you will need to research. You do not need to have a law degree to understand these resources – they are generally clear, simple and in plain English. This article also includes a few extra tips for online publishers.
Where to go?
There are a number of resources relating to publishing, copyright, defamation law, contracts and moral rights available for writers through the following organisations:
- Arts Law Centre of Australia
- Australian Society of Authors
- Australian Copyright Council
- Australian Writers Guild
- Victorian Writers' Centre
These websites will lead you to a range of free, printable resources. Some (including Arts Law) also provide free telephone or email legal advice, run specialist seminars and have further resources and assistance available for members.
However, always keep in mind that laws change and some resources may not be updated regularly. It is important not to rely on one resource alone. If there are inconsistencies between resources, this is often a good indication that a particular legal issue is not that straight forward and that you should seek further legal advice.
Where possible, try to differentiate between information about the law and information that is based on experience and commercial realities. Both are important, but you should try to distinguish your legal rights and responsibilities from commercial considerations.
What kind of information will you need to research?
Your starting point as a writer should be getting your head around copyright law. Copyright creates intellectual property rights in original written works. The owner of those rights can license, sell, assign and protect these works from unauthorised copying. In Australia, you do not need to register copyright, it exists automatically.
Copyright law protects your creative expression but does not protect the ideas contained in your works. For example, you could write an article about education policy and someone could take your idea and develop it, as long as they did not substantially reproduce your expression of the idea, such as your arrangement of words and expressions.
Understanding copyright will help you not only protect your own work, but make sure you deal with other people's copyright correctly. For example, how you use images, text and quotes from other sources.
The Australian Copyright Council, an independent, non-profit organisation, provides a plethora of information relating to copyright and how it works – much of it free. This is a good place to start to get a better understanding of:
- who can own copyright in work;
- the difference between licensing and assigning copyright work;
- how long copyright lasts;
- how you can use copyrighted material in certain circumstances without the author's permission;
- when you have to attribute work to a particular author;
- how to protect your copyright works and use the © symbol; and
- how to enforce your rights at law.
Each of the organisations listed above provide information about self publishing, which can help writers avoid costly and time consuming disappointment. It is not uncommon for people to expect to make money out of self publishing and end up only breaking even or out of pocket.
Before your start, you will need to have a clear idea about issues such as:
- how to promote and distribute your book (will you be doing it yourself or will the printer do this?);
- anticipated editing, typesetting, printing, binding, marketing and distribution costs;
- what quality of work you should expect from a printer;
- what your rights are under your agreement if the product is defective or deficient (such as poor editing or printing);
- how to get an ISBN and how to get your book catalogued; and
- how to have bibliographic information listed with suppliers.
It is a good idea to ask other self publishers about who they have used and why. A person who has self published a number of books is likely to have some good and reliable recommendations. You will also be able to check the quality of the product and refer to it as an expected standard when you seek the same.
For many authors it is a struggle to find a publisher who is willing to publish their book, so when they finally get a contract from a publisher, they often feel there is little room for negotiation. However, understanding how publishing deals work and how books are actually sold, can allow you to negotiate issues in a publisher's standard agreement, but which the publisher may be willing to negotiate.
Before you enter into a publishing agreement you will need to understand the elements of a publishing contract and how it deals with issues, such as:
- the nature of the rights you are giving to a publisher (generally a license to your copyright work – but for how long and how can these rights be exploited?);
- what the advance should be;
- how and when royalties are paid and at what rates;
- what happens to unsold books or discounted books;
- what control you have over the editing/proofing of your work;
- what ability you have to check you are getting paid what you should be;
- what warranties and indemnities a publisher may require (that is, the legally binding promises you make about your work, such as that you own the copyright in your work);
- what happens when the publisher owns the rights but does not publish the work;
- what territories your work will and can be published in (is it just Australia and New Zealand, or does it extend to Europe and America?); and
- how you can end the contract.
From a commercial perspective, you will need to have an understanding of which are standard terms and which terms may be more negotiable. In reality, this will also depend on how 'hot' your book is (are publishers competing to publish it?) and the potential market for your book. The Australian Society of Authors publishes a book called 'Australia Book Contracts', which is an excellent resource if you are making a deal with a commercial publisher.
Writing and publishing online
Unauthorised copying of copyright works on the internet
Many writers provide content to online forums or self publish on websites or blogs. Most of this content is provided free. Writers who are paid for one-off or intermittent jobs providing internet content generally do so for a one-off fee. The Australian Society for Authors provides information on the standard rates authors should charge.
Some writers are ideologically supportive of providing content that can be used by others without charge. However, they generally require this use to be for non-commercial purposes. In practice, most people intend to control where their material is published and do not want others to publish their content elsewhere without permission or payment.
Copyright law protects the republishing of writers' works without permission. However, copyright laws are frequently breached on the internet and it can be difficult to take legal steps to enforce these rights. There are legal mechanisms to identify anonymous people using copyright material, but they can be costly.
Even when a person knows who, when and where their copyright was infringed, they will face the difficulty of deciding what to do about it. They can demand the other person stop publishing or pay for the work, but if they are not answered, they will have to decide whether it is worth spending money on legal fees to have a more formal letter of demand sent. The next step of issuing legal proceedings can be costly. It is possible to contact the internet service provider (ISP) hosting a website containing infringing material directly. However, many ISPs will only take action once legal proceedings are determined.
In short, while you may have legal rights to prevent copying of your works, these rights can be costly to enforce without funds. Further, as it is hard to make money from online publishing, there is often not a lot of cash to throw at legal issues. That said, for some lucky writers, publishing online can be profitable. It can lead to print book deals and it is a good way to raise your profile. The recent case of Christian Lander's blog (and now book) Stuff White People Like is a good (although uncommon) example. So if you get 30 million hits on your site a book deal may come your way.
Most self publishers, whether publishing in print or online, will not have the added protection of a commercial publisher reviewing their material for legal issues. Given the fast paced nature of online publishing, content is often developed and published without much regard to possible legal issues. In these circumstances, online publishers are at a greater risk of publishing defamatory material.
Defamation is the publication of statements that lower the reputation of a person in the eyes of his or her community. You can defame someone unintentionally and still be liable.
Two common things occur in online publishing. Firstly, defamatory content is published and the publisher (including the writer) risks being sued. Secondly, online publishers are afraid of being sued and 'self censor' material, which they could in fact publish if they understood defamation laws better. They may in fact have a good defence or be able to tinker with the article so that it can be published without fear of it being defamatory.
Commercial publishers often hire lawyers to read through their material when they think there may be an issue. For those who do not have these resources, it is a good idea to get an understanding of defamation law issues, such as:
- how someone can be defamed;
- what are the defences to defamation; and
- should you apologise if you know you were wrong?
Four golden rules
In summary, here are four golden rules which should help protect you as a writer:
Do not sign anything you do not understand – seek advice.
Before you sign an agreement, make sure it contains all aspects of your agreement with that person – do not rely on things you discussed in negotiations. For example, if it is agreed with a printer that the book will be printed on recycled paper, it should be in the written contract.
Do your own legal research and know the industry standards – seek advice if you are not sure.
Speak to people who have been in the business a long time and get their advice and personal recommendations. Joining a writer's organisation is a good way of doing this.
Isolde Lueckenhausen is a Media and Entertainment Lawyer at TressCox lawyers.