It's been said that everyone has a book in them, and nowadays it seems that everyone can write and show that book to the world. Arts Law receives many enquiries from writers seeking more information about self-publishing, or who run into problems when they seek to self-publish their work. In this two-part series, we take a look at what it means to self-publish both in print and online, and give an overview of some of the main issues to think about when self-publishing.
Self-publishing and vanity publishing
First of all, it is helpful to think about what is self-publishing, something that often gets confused with vanity publishing. Broadly, both self-publishing and vanity publishing exist as alternatives to traditional publishing, and with both the cost of publishing the book is borne by the book's author. There are, however, some key differences. There is no legal definition of vanity publishing or self-publishing, and the two terms are used interchangeably even within the publishing industry (for example, vanity publishers will often advertise themselves as self-publishers or offer self-publishing services). As a helpful guide, and for the purposes of this article, vanity publishers and self-publishers are distinguished as follows:
A vanity publisher (also called subsidy publishers, joint venture publishers, or partnership publishers) is a publisher that charges writers a fee to produce their book. This means the publisher's business model derives income from the authors who pay to have their book published, as opposed to a traditional publisher who takes on a financial risk to publish an author's book and seeks to recover costs from sales to readers. Vanity publishers generally provide designing and printing services, but may not include or have only very limited marketing and distribution services. In most cases a vanity publisher will own the book's International Standard Book Number (ISBN, see below for further information) as well as copyright in the layout of the book. Although many vanity publishers are legitimate businesses, there are also unethical vanity publishers – some for which the NSW Department of Fair Trading has issued a scam warning.[i]
Self-publishing is where an author personally takes on not only the cost of publishing their book, but also responsibility for the book's design, production, marketing and distribution (i.e. the author and the publisher are one and the same). This doesn't mean the author actually does all the work themselves – an author may for example commission an artist to design the book's cover and layout, contract a printer to print the book, even engage a public relations consultant – but at the end of the day all of these aspects of publication are controlled by the author. While the process of self-publishing can be complicated, in terms of ownership the author will generally own everything from the book's layout to the ISBN. Many writers now considered classic authors such as Virginia Woolf, Rudyard Kipling, and James Joyce were originally self-published.
With the rise of ebooks and the popularity of self-publishing, there are now companies that offer self-publishing services such as editing, proofing, and design. Such companies straddle the already blurry line between vanity publishing and true self-publishing, or are vanity publishers under a different name. For the author looking to use such companies to self-publish, the question to ask is that of control, i.e. how much control do I get over not just my work, but the design, production process and marketing? The answer to this question would be contained in the company's contract with the author, which of course the author should always read before agreeing to. Arts Law may be able to assist through its document review service should you require legal advice on such contracts.
What should I consider when looking to self-publish?
When an author is published through a commercial publishing company such as HarperCollins or Allen & Unwin, the publishing company will subject the book to a rigorous editing process. This editing process will examine the book not just for the quality of the writing, but also in terms of legal issues, particularly copyright and defamation. This may be done by the editor or the traditional publisher's in-house legal counsel.
Authors who self-publish their book still have to consider issues of copyright and defamation in their manuscript, but will have the responsibility to do so themselves. Although vanity publishers and companies offering proof reading or editing services may identify potential legal issues in a manuscript, they will not be able to give advice as to legal risk. This does not, however, mean that an author seeking to self-publish is without resources. At the very least, an author should research and form a basic understanding of copyright law. This is particularly important if a book includes images from a photographer or visual artists, or extracts from other works. An understanding of copyright law will help you not only deal with other people's copyright correctly, but also protect your own. Similarly, an understanding of defamation law will assist an author writing about real life events and people. Arts Law has information sheets available online for free download that provide an outline of these issues, and can provide specific advice where possible.
There are different legal considerations when it comes to the production process of the book. As stated above, just because an author self-publishes does not mean they to do all the work; they can engage third parties to do so. These arrangements would usually require the author to enter into a legally binding contract, for example:
an agreement commissioning an artist or photographer to create the book's cover art and/or illustrations;
a design and commission agreement for an artist or designer to design the book's layout; or
a production agreement with a printer to print and bind the book.
Although all of these contracts will vary according to their purpose and the parties, there are some issues that should always be considered such as copyright ownership and licensing, delivery dates, and of course, payment. It is important to understand that contracts do not have to be formal written documents, and that a legally binding agreement can be established verbally or in a series of emails. Again, Arts Law has information sheets available online for free download setting out the key points to keep in mind when entering into a contract.
Of course, there will be occasions where specific legal advice is needed, either on a manuscript or a contract. If you do require specific legal advice in such a situation, you should contact Arts Law.
As a self-publisher, it is up to you to get your book out to the public and the opportunities to do so (particularly online) are many and varied. It is not within the scope of this article to address these opportunities. However, it goes without saying that all of them need a plan. This plan should not only set out a marketing and distribution strategy but also address some legal and practical issues that all publishers, large and small, must meet or at least consider.
One legal issue is that of legal deposit. Under section 201of the Copyright Act 1968 (Cth), it is mandatory for all publishers to deposit one copy of every work they publish to the National Library of Australia and the relevant State or Territory Library. This ensures that every book published in Australia can be identified and accessed by as many people as possible both now and in the future. The time frame in which books must be deposited with the libraries varies but ideally should be as soon as possible from time of publication, and is free. More information about legal deposit can be found at the National Library of Australia (NLA) website.
The NLA also administers the Cataloguing-In-Publishing (CiP)database, which is used by libraries both in Australia and around the world to catalogue upcoming publications. It is not a legal requirement to have a CiP, but having a CiP will enable a book to be included on various databases from which libraries, booksellers and the public can select and order future publications. The application for a CiP is free and can be done via the CiP section of the NLA's website. Application for a CiP should be done approximately one month before the publication of the book.
In order to apply for a CiP, a book is required to have an ISBN. An ISBN is a unique number that ensures that a book can be identified around the world. In Australia, ISBNs are managed by, and purchased from, Thorpe-Bowker Information Services. It is not mandatory to have an ISBN for a published book. However, having an ISBN enables libraries and bookshops to identify books, manage catalogues and databases, as well as make orders. ISBNs also apply to each separate edition of a work and cannot be reassigned or transferred. This means that if, for example, you publish through a vanity publisher who registers and owns the ISBN for your book, and you later wish to reprint your book with a different publisher or self-publish, a new ISBN will be needed. For more information on ISBNs and the fees for purchasing them contact Thorpe-Bowker Information Services.
[i]NSW Department of Fair Trading vanity publishers scam warning: http://www.fairtrading.nsw.gov.au/Consumers/Scams/Types_of_scams/Vanity_publishers.html