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Copyright Terms Should Be Shorter

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From Flickr account ĐāżŦ {mostly absent)

 

Copyrights, particularly lengthy ones, benefit the corporations that license and/or those copyrights.  The Copyright Extension Act of 1998 isn’t called the Mickey Mouse protection act because it is designed to protect individual creators.  It is designated as such because it benefits one of the largest owners of intellectual property, Disney.  As of 1998, the term of copyright extends from 50 years for an individual and 75 years for a corporation to life of an author plus 70 years and 120 years for a corporation or 95 years after publication, whichever occurs earlier.

The reason that this is problematic is that when authors sell or license their works to a publisher, it is ordinarily for the term of copyright.  When a new author or an author with little following enters into negotiation with a publisher, she rarely holds a position of power.  This has changed given the new options available to authors such as digital first or self publishing but the fact remains that an individual’s ability to negotiate differing terms from the boilerplate is challenging.

Even the Supreme Court acknowledged this in Fisher Music Co. v. Witmark, 318 U.S. 643, 656 (1943).  The Court said  “authors are congenitally irresponsible, [and] that frequently they are so sorely pressed for funds that they are willing to sell their work for a mere pittance.” Id.

As a result, authors are allowed to reclaim their copyright after 35 years.  I wrote an extensive article about this in 2009 (which I am reposting today).  A longer term of copyright protection helps because value from the  author’s creative works can pass to his or her heirs.  The longer copyright hurts authors because it does not allow for a period of renegotiation.  We have seen the backlist of authors become valuable but not exploitable by authors.

Marsha Canham noted on her blog that  the backlist titles are bound by old contracts wherein the royalty rates were 6-8% of “net”.

What does the author get out of that, you ask?  Well…remember that these are backlist books, so the author probably has an old contract that, in some cases, gives the same royalty rate for ebooks (which were just a glimmer on the horizon ten years ago, and twenty years ago not even a glimmer) as for print books, which would be between 6-8%  of the *net* price.

..

But I digress again. NOT counting any net mumbo jumbo, we now have $52,300 for those books. Out of that, the author *should* get 25% which would work out to $13,075. But using Publisher Math, they only get $6537. And if the contract is older, and we’re working off the 8% royalties…that number zooms  down to $4184, which, using Publisher Math, can become finostigated down to around $2K.  Even if it’s left at the 8%, the publisher still gets the lion’s share of $48,116. And if it’s left at 25%, they keep $39,225.

$39,225 for the publisher, $13,075 for the author, and that’s using rose colored glasses for the 25% royalty rate on 10,000 downloads of a $7.99 ebook without any finostigating. Take off the glasses, use the 8% and the numbers change to $48,116 for the publisher and $4184. for the author.

The current standard royalty rate for digital books are 20-25% of net.

A shorter term of copyright, such as 14 years with several renewal periods of 14 years a piece would allow an author to renegotiate a contract every 14 years, taking advantage of the changing landscape in publishing.   It may be to the author’s benefit to sell every renewal period up front or she could preserve her renewal periods and take a lower offer initially.  However, a shorter copyright period with subsequent renewal periods would endow the author with additional bullets in her negotiating weapon.

The time period for reclaiming one’s copyright has passed for some books published in 1978. 2013, for example, will be the last year for some authors to exercise their termination rights.  The termination right is a valuable option for authors, but one that requires affirmative action.  A shorter copyright term would automatically limit the length of the grant of copyright and allow for renegotiation which would better reflect the rapidly changing market.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

10 Comments

  1. SAO
    May 13, 2012 @ 08:10:08

    I don’t get why corporations deserve a longer copyright than a person. All it does is encourage individuals with a copyright that still has some value to incorporate themselves.

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  2. Linda Hilton
    May 13, 2012 @ 09:11:21

    You wrote: “A shorter term of copyright, such as 14 years with several renewal periods of 14 years a piece would allow an author to renegotiate a contract every 14 years, taking advantage of the changing landscape in publishing. It may be to the author’s benefit to sell every renewal period up front or she could preserve her renewal periods and take a lower offer initially.”

    Pardon me for being a cynic, but don’t you think publishers would just like kinda DEMAND that the author sell every renewal period up front, thus neutralizing any advantage such a revision of the law would give to authors? Why bother to change the law if the change includes a way around itself?

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  3. Elizabeth Ann Scarborough
    May 13, 2012 @ 16:19:30

    I feel like what you are calling copyright and what I know copyright to be are two different things. The copyright belongs to the author. It’s to the author’s advantage for that copyright to last their lifetime or longer. I’ve been working with and for big publishers for 30 years and the copyright has always been MINE. What I sell them is the (usually exclusive for a set period of time) right to publish my copyrighted material. But the copyright is still mine and when either the time period has elapsed or more often until recently, when the book stops selling (usually because it has gone out of print or not been available) I’ve been able to get my (copy)rights reverted to me. In some cases this has only been a year or two after original publication. This is changing now because of e-books and publishers wanting the rights in perpetuity but it still doesn’t mean you are selling your copyright, just being required in some cases to extend the length of time someone else publishes it. Publishers are already requiring (or trying to require) some authors to sell them the rights to e-publish their books in perpetuity but even so, the publisher doesn’t OWN the copyright–they’re leasing it. A shorter copyright would mean I would own my own work for a shorter period of time and as such anyone else would be able to snag it for themselves or “sell” it for free online at no benefit to me. As it stands, for the length of my life I am the only one who can sell it to someone else and after I die, for 70 years, my heirs have the rights to sell and re-sell my work so they can benefit from whatever profits it may make. Author’s whose copyright has expired without the estate renewing it are ones whose “complete works” can sell for O dollars or 99 cents for Kindle now. I don’t want this to be someone else’s option after 14 years and for me to have to go through the hassle of renewing my right to what is mine by reason of creation. A publisher’s only copyright is of their VERSION of your book–the formatting and cover art they’ve purchased for it, for instance, cannot be used by you for your e-book (once your rights have reverted) without permission or purchasing the publisher’s rights to go with your own. Admittedly things are changing but they still are NOT changing to where an author should think a shorter copyright is a GOOD thing. The current problem is that publishing houses, formerly willing to release the rights to a hard copy book they are no longer selling for whatever reason, now wish to purchase the right to publish the material in whatever form (including e-rights) in perpetuity, often for a sum less than they formerly paid the same author for print rights alone. They will not be reverting rights to work they’ve purchased in the future and in many cases are attempting to claim that they retroactively own the e-rights in perpetuity, whether or not the book continues to sell. But they still do not OWN the copyright. They are buying the right to (usually exclusively) publish work that is under the author’s copyright, however long or short the time period or the restrictions in the contract. Telling authors to want a shorter copyright period is telling them to give away their right to their own work after 14 years, which would be as disastrous as signing one of the contracts being offered by the original publishers now, unless they are paying a hell of a lot better than they have done in the past. I’ll take the lifetime + 70 years because right now my backlist is still earning for me at a much higher rate than it would if the original publisher was exploiting my e-rights and certainly more than if, after 14 years, my rights had been up for grabs. No way, José.

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  4. Jane
    May 13, 2012 @ 16:44:40

    @Elizabeth Ann Scarborough – Perhaps you missed the point of the article which called for subsequent renewal periods. The initial term of copyright was for 14 years with a renewal for another 14 years. After a certain period of time, only the heirs of the original creator benefit from owning the copyright. A shorter term of copyright with optional renewal periods creates a shorter period of time in which a grantor is bound to the grantee, essentially creating an automatic renegotiation period.

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  5. Linda Hilton
    May 13, 2012 @ 17:58:45

    @Jane: I agree wholeheartedly, totally, and completely with Ms. Scarborough on both her facts and her sentiments: I don’t want the term of the copyright protection shortened. Not at all.

    What you’re suggesting — “a shorter period of time in which a grantor is bound to the grantee” — could be done far more easily by altering the 35-year termination period.

    If a copyright were only for 14 years, renewable for X number time in units of 14 of years, how would a publisher negotiate a contract based on a renewal that might or might not happen? Sure, the author has a vested interest in renewing the copyright and holding onto it, but what if they don’t do it? How can the publisher force them? Why would a publisher enter into a contract like that? And why would an author enter into a contract that forced them to renew?

    The “automatic renegotiation period” could be changed from the current 35 years to 20 years, or even 15, or even 14. That would still protect the copyright owner, if that’s the objective. If the objective is to protect the publishers, then leave it the way it is.

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  6. Magdalen
    May 13, 2012 @ 23:41:02

    This strikes me as asking for a howitzer to kill a gnat.

    Why should federal law change so that authors might get another bargaining chip in their negotiations with publishers? Particularly when the growth of independent publishing will continue to change authors’ options vis a vis how they get their work into the marketplace?

    (Unless your theory is that federal law should change so that authors currently bound by contracts they signed back when they had fewer options can have a second bite at the apple? Generally speaking, federal law isn’t retroactive, so I’m not sure this would actually gain much for the authors.)

    I’m all for authors having more power in the marketplace, and I think the trend will continue to move in that direction. I also think there’s an argument for works going into the public domain sooner than 100+ years. But I just can’t pair the argument for increased authorial power with a dismantling of the basic structure of the law of copyright. And particularly not one that requires some affirmative action–renewal–on the part of the author. Copyright law is challenging enough to assert and prosecute without an added opportunity for authors to inadvertently lose their rights.

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  7. Bryce
    May 14, 2012 @ 11:09:04

    @SAO: It’s not quite accurate to say that corporations get a “longer” copyright than individuals. For an individual, the 70 years starts at the moment of death. For a corporation, the 95 years starts at the moment of publication.

    This does make sense — at least, as much sense as anything in copyright law makes — since corporations are effectively immortal.

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  8. Natalie
    May 14, 2012 @ 22:09:20

    Intellectual property is not property.
    Human culture survived for thousand of years without copyright laws.
    ‘Nuff said.

    ReplyReply

  9. Mohini
    May 17, 2012 @ 04:21:17

    @Natalie:
    You may as well say that human culture survived for thousands of years without plastic. It would be as true and as besides the point.

    Jane,
    I couldn’t read Elizabeth Ann Scarborough’s block of text fully but what I gathered is that she says that authors don’t (usually) sell the copyright, they sell the right to publish a particular work. As far as I recall (unless they’re under a contract of service or apprenticeship) that’s accurate.

    If you’re saying that instead of selling the publishing rights for the lifetime of the work, a renewal of contract should be automatic every 14 years. Well, that’s possible anyway isn’t it? If you have it in the contract. But authors don’t get the choice precisely because “frequently they are so sorely pressed for funds that they are willing to sell their work for a mere pittance.” I should think the same thing will happen here. Publishers will force them to give up the rights for the lifetime of the work.

    I agree with whoever said that shortening the period after which authors are allowed to reclaim their rights on the work would be much more useful if you want to protect the author.

    Or maybe I’m talking through my hat. It’s entirely possible.

    ReplyReply

  10. Stumbling Over Chaos :: Linkity welcomes melted kitty season
    May 18, 2012 @ 09:46:13

    [...] Dear Author on why copyright terms should be shorter. [...]

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