Many authors receive contracts or licensing agreements from publishers and are not au fait with the legalese used in the document. They are not aware of their rights or they are reluctant to assert their rights for fear of their manuscript being rejected. They do not always have negotiating skills and tend to accept what is in the contract, without seeking legal assistance or assistance from someone who has successfully negotiated contracts with publishers in the past.
The ‘’publish or perish’’ syndrome puts pressure on authors to increase the number of research outputs each year. It often drives them to sign contracts hurriedly, without taking time to peruse the content (and small print) to ensure they understand the implications of each clause. In many cases, contracts are strongly skewed in favour of the publisher and only after the author has signed the contract, do they come to realise that they have surrendered all or most of their rights to the publisher for the entire copyright term. Should they wish to update, revise, translate, share, condense for another publication, or do any other acts that authors generally have the right to do, they will have to obtain prior permission from the publisher.
Authors have rights in terms of the current Copyright Act no. 98 of 1978 (as amended). The law gives authors a ‘’bundle’’ or “suite” of exclusive rights, which they can enjoy for their entire lifetime, plus 50 years from the end of the year in which they die, subject to some exceptions. For example, copyright in a literary or musical work vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:1
(a) Reproducing the work in any manner or form;
(b) publishing the work if it was hitherto unpublished; [Para. (b) substituted by s. 6 of Act 125 of 1992.]
(c) performing the work in public;
(d) broadcasting the work;
(e) causing the work to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the work, and is operated by the original broadcaster; [Para. (e) substituted by s. 3 (b) of Act 56 of 1980.]
(f) making an adaptation of the work;
(g) doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (e) inclusive. [S. 6 amended by s. 3 (a) of Act 56 of 1980.]
The Act sets out other rights relating to photographs, music, films, audio-visual works, and other works. You are encouraged to read the Act to find out more about the exclusive rights relating to those works.
When submitting a manuscript to a publisher, always ensure you keep a copy. Request a written receipt. Always follow the publisher’s author guidelines, referencing style and any other instructions, otherwise your work could be referred back to you for correction or be rejected outright.
When discussing your manuscript with a publisher, always try to negotiate a fair and balanced deal, which benefits you and the publisher, not just the publisher. Read each clause and ask questions if you do not understand how they affect you. Seek advice from a legal advisor or a senior academic in your Faculty or someone who publishes often in reputable academic publications.
Know your rights! You do not have to accept everything that is in the contract. You do not have to sign over all your rights to a publisher. Also, you cannot sign over your moral rights, which are personal or reputational rights which give you, the author, the right to be named the author of the work, and to protect the integrity of your work against mutilation and distortion, plagiarism and falsification of data in your work, defamatory statements, etc.
If there is something you are not happy with in the contract or publishing process raise your concerns sooner than later. Generally, you will be given a standard publisher’s agreement to sign. If you do not agree with a clause or wording, try and find an amicable solution or a more suitably written clause or sentence that is acceptable to you and the publisher. Where necessary, delete a clause if it is not relevant to your manuscript, e.g. if you have agreed that the work can only be published in print, then delete any clauses that state that the work can be digitally published as well; or if the work is only to be published in a specific region or for a specific purpose in your own country, then delete any clauses that state the work can be published globally or for any other purpose.
Try to negotiate a non-exclusive licence with the publisher, instead of an exclusive licence. A non-exclusive licence gives you the option of giving your work to more than one publisher for different purposes. You may, for instance, licence the first publisher internationally to publish your work in English in print and digital format, whilst a second publisher (maybe regional or local) can be licensed to publish in an indigenous or foreign language, in hard-copy only. In other words, you, as the author, can exploit your intellectual property rights as you wish, without restriction or being tied to one publisher only. In an exclusive licence, you and the publisher agree that no other person or legal entity may exploit the relevant intellectual property rights, except the licensee, in this case, the publisher. In an exclusive licence, you relinquish your rights and grant exclusive rights to the publisher for the full copyright term.
Consider attaching an Author’s Addendum2 to the publisher’s agreement, which sets out certain rights and allows you to retain certain rights, e.g. to place a copy of your work on an institutional repository, and/or to share your paper with colleagues or students, etc. Some publishers will consider an Addendum, whilst others will not accept it. If you do not ask, you will not know if the publisher is prepared to grant any concessions. Do not be afraid to ask, otherwise you may land up with a contract which restricts or prohibits you from doing certain acts with your own paper. You basically lose or have reduced control over your own work, which in the digital environment is not the best way to exploit your intellectual property rights.
- An Introduction to Copyright Resources for Authors
- Author Rights Resources: Understanding Author Rights (USA)
- Author Rights – Scholarly Communication – Guides at Health Sciences Library System
- Authors’ Registry (UK)
- Authors’ Rights (SPARC)
- Authors and Copyright
- Digital Books and Your Rights
- What everybody knows
- Understanding Rights Reversion- When, Why, & How to Regain Copyright and Make Your Book More Available (a reversion clause is in the SA Copyright Amendment Bill which is currently under review in Parliament).