Are Contracts Enough? An Empirical Study of Author Rights in Australian Publishing Agreements

Abstract

A majority of the world’s nations grant authors statutory reversion rights: entitlements to reclaim their copyrights in certain circumstances, such as their works becoming unavailable
for purchase. In Australia (as in the United Kingdom) we have no such universal protections, leaving creator rights to be governed entirely by their contracts with investors. But is this enough? We investigate that question in the book industry context via an exploratory study of publishing contracts sourced from the archive of the Australian Society of Authors. We identify serious deficiencies in the agreements generally as well as the specific provisions for returning rights to authors. Many contracts were inconsistent or otherwise poorly drafed, key terms were commonly missing altogether, and we demonstrate that critical terms evolved very slowly in response to changed industry realities. In response to this new evidence we propose that consideration be given to introducing baseline minimum protections with the aim of improving author incomes, investment opportunities for publishers and access for the public.

*Note: This paper is available as an Advance copy on the Melbourne University Law Review website: https://law.unimelb.edu.au/mulr/issues/forthcoming-issue*

Keywords: copyright, reversion, digital single market directive, authors rights, publishing, empirical, contract, unconscionable, out-of-print

JEL Classification: K12, k00