Authors are always put at the centre of Australia’s copyright debates, grounding claims for more rights or fewer exceptions. Despite that, our law has no explicit rights to protect authors in the case of unfair, unclear or outdated contacts. I criticised this state of affairs in the last spring issue of Overland, making a case for Australia finally joining the majority of the world’s nations by granting authors appropriate baseline protections.

The piece drew industry pushback on two key fronts. It’s worth briefly responding to both, because they speak to a broader issue: a mismatch between what Australian publishing practices actually are, and what industry members often believe them to be.

1. We don’t need author rights, because it’s all taken care of by the contracts

The first piece of criticism is that Australia doesn’t need any explicit author rights, because that’s all taken care of by the contracts. The main mechanism is the ‘out-of-print’ clause, which – according to a literary agent who complained about my essay – can be found ‘in every single publishing contract’.

Out-of-print clauses have long been a crucial part of the bargain between publishers and authors. A classic out-of-print clause typically provides that, if the work has gone out of print and is not available in any edition, the author can give the publisher notice. If the publisher doesn’t put the work back into print, the author can reclaim their rights. These clauses were intended to strike a balance that let authors regain their rights when they are insufficiently profitable to the publisher to justify a fresh print run.

In a recent study of 145 publishing contracts from the archives of the Australian Society of Authors (ASA), Joshua Yuvaraj and I found that out-of-print clauses were by no means universal. More than 10 percent of contracts in our sample had no such clause at all. But even where they did, few of the clauses were satisfactorily drafted. Some were frankly unconscionable. The most egregious formulation allowed authors to reclaim their rights when their work was unavailable in any edition – but only so long as they repaid any unearned portion of their advance and paid the publisher for any blocks, designs and engravings they’d made for the book at half the original cost!

Crucially, even those classically-framed clauses permitting authors to reclaim their rights when their book is not available in any form no longer pass muster. Some 67 percent of all contracts with out-of-print clauses had them framed in such a way. But books today rarely meet this standard, with print-on-demand and ebooks making most books ‘available’ on an ongoing basis. As the US Author’s Guild has pointed out, a work being technically available doesn’t necessarily mean the publisher is genuinely investing in finding it an audience in the way it would have to if it had  to justify a new print edition. This fundamentally changes the bargain between publishers and authors, and means we need to think differently about how to balance their respective interests.

The solution is to develop definitions of ‘out of print’ that are divorced from mere technical availability. We saw some good examples of this in our archival research, too. Triggers for authors to be able to reclaim their rights included where less than $100 had been paid in royalties in the previous 12 months, or where there’d been fewer than 50 sales in the last year. Such formulations protect the publisher’s commercial interests while maintaining the spirit of the out-of-print bargain for the author.

But we can’t simply leave it to the publishing industry to draft fundamental author rights like out-of-print rights – for two key reasons.

Firstly, they aren’t reliably doing so. The ASA tells us they’re regularly seeing contracts with out-of-print clauses based on technical availability even today. The society recommends authors not sign such contracts, but not all authors get professional advice before signing – and not all publishers are willing to change their terms to reflect the industry’s changed realities.

Secondly, the new formulations of today are of no assistance to authors whose contracts were drafted yesterday. Copyright lasts a very long time – the author’s lifetime plus another 70 years after that. Ninety-seven percent of the contracts we looked at took rights for that entire term. Thus, even contracts signed in the 1940s and ’50s are typically still binding today. In the absence of a crystal ball, it’s simply not realistic to expect publishers to draft author rights that will remain appropriate and fair for decades or even a century to come.

Authors shouldn’t have to depend for their rights on publishers getting it right, always and forever. Statutory author rights, such as those that are widespread throughout Europe and much of the rest of the world, can provide appropriate minimum protections that apply regardless of what the contract says. These protections are adaptable to changed circumstances, because they can be readily updated as the industry evolves.

2. We don’t need author rights, because publishers simply don’t do what I said they do

The second bit of criticism arose from an example I gave of an acquaintance who sold her book to a ‘Big Five’ publisher for a lump sum of less than $1,300, leaving her with no entitlement to future royalties, any licensing fees that might be paid for its use in schools or universities, and even her statutory right to compensation for its library use. That’s particularly concerning because her book was aimed at academic and educational audiences – the kind of case where such revenue is most likely.

Critics claimed I’d simply conjured this example out of thin air – that I had made it up. Yes, it’s an egregious example, which is why I used it. But it’s an egregious example from a sector of the publishing industry that’s full of egregious examples. Here’s what the Australian Society of Authors had to say about educational publishers in their 2008 report entitled Educational Publishing in Australia What’s in it for authors? and based on its surveys of author members:

To bolster declining profits, publishers have turned on authors and used their market dominance to force them to sign over all copyright, write for a one-off, minimal fixed fee rather than royalties, and forgo their right to additional sources of income such as CAL payments and Lending Rights payments.

There’s no need to take my word for it: the problematic practices I reported have been public knowledge for at least a decade.

These aren’t niche practices either. Educational publishing makes up about a third of the Australian publishing industry, and the companies who use these practices are dominant players. In its report, the ASA named two of the worst offenders as Macmillan Education (then part of the Macmillan Publishers Group) and Pearson (which owned Penguin and still has a huge stake in Penguin Random House).

Despite some pushback, other members of Australia’s publishing industry have been receptive to the problems identified by our research. I spoke about this at the recent Small Press Network Independent Publishing Conference. In the recording below, you can hear gasps of shock at some of the worst examples. Afterwards, several publishers approached me with a promise to look at their contracts and make sure they complied with best practice. That’s heartening. After all, an industry that looks critically inwards, eyes open to its own occasional abuses and shortcomings, is likely to have the best ideas about how to fix them.

Author’s note: The author contract data described here was collected under strict conditions of confidentiality and did not include any personal information. While we thank the Australian Society of Authors for providing access to their archive, please note that our findings do not necessarily reflect their views.