Among authors' reasons for joining a professional association such as ANFASA, the need to know more about copyright and publishing contracts stands out as one of the most compelling.
Below are some of the questions authors ask. If you have other questions, not listed here, please send them to email@example.com, and we will add them to this page together with the answers.
The term ‘intellectual property’ refers to the intangible products of the mind. Patents, trademarks, designs and copyright are the four forms of intellectual property (the first three are sometimes also known as industrial property).
It is the right of the creator of a work embodying intellectual property to control the use and exploitation, or management, of that work. The right of copyright is limited in duration as we shall see below, but while it subsists it gives its owner what Dr Owen Dean has called a ‘qualified monopoly’. Simply put, copyright includes the right to protect one’s intellectual property from unauthorised usage.
To explain ‘intangible’: a book is a physical object, but embodied in it is something intangible, the ideas of the author as expressed in the words on the page. The expression of these ideas is what the author owns, and has a right to protect.
Yes, the Copyright Act 98 of 1978, as amended, governs copyright.
Literary (written), musical and artistic works; cinematograph films; sound recordings; broadcasts; program-carrying signals; published editions and computer programs.
In South Africa, the duration of copyright is the life of the author plus 50 years from the end of the year in which the author dies. Intellectual property, like other forms of property, devolves on a person’s heirs, so when an author dies his or her beneficiaries become the owners. When copyright expires, the work falls into the public domain, and may be freely used and exploited by anyone. In many other countries, notably Europe and the United States, the duration of copyright is life of the author plus 70 years.
In South Africa one does not register copyright (apart from in cinematograph films). Copyright arises automatically, as you express your ideas on the page – or computer screen.
Strictly speaking, you don’t have to do anything, as your work is automatically protected. But if someone copied it, and you challenged them, you would have to prove in court that you are the owner of copyright. When sending a manuscript out to be published you should always claim ownership of it with the copyright symbol, your name, and the year – as you will see at the foot of this page.
It is said that there is no copyright in ideas, partly because the law cannot protect something as ephemeral, and sometimes fleeting, as an idea. Once the idea has been written down, however, it enjoys copyright protection. If your story’s plot was copied you would have to prove that the idea was yours – which would be very difficult to do if you had not written anything down.
The author of a work has the right to claim authorship and to object to any distortion, mutilation or other modification of the work where such action is or would be prejudicial to his or her honour or reputation. This means that the author has the right to be identified as the author (the right of paternity) and the right to object to any adaptation of the work which would reflect badly on him or her (the right of integrity).
If someone passes off your work as his or her own this is plagiarism. It is also plagiarism if someone lifts ideas and expressions, without acknowledgement, from your work.
Only the copyright owner may do, or authorise the doing, the following in respect of his or her work: reproduce it in any manner or form; publish it; perform it in public; broadcast it; transmit it in a diffusion service; or adapt it. Anyone who performs any of these actions without permission in respect of the work has infringed copyright.
There is no criminal offence called ‘plagiarism’, but plagiarism may also amount to copyright infringement (which is against the law) if the form of your work (i.e. the actual words) has been copied as well as the content. In academia, the mere exposure of an author as a plagiarist is shameful.
If you suspect that your work has been plagiarised, or your copyright infringed, your first port of call should be your publisher, who will take action on your behalf.
By signing a contract with a publisher, you give him or her an exclusive licence to publish your work. An exclusive licence means that only the publisher with whom you have contracted may publish your work.
Copyright is a ‘bundle’ of rights which includes the right to publish the book in a certain language, or in a certain territory, or for a certain period of time. You are entitled to license your publisher to manage the exploitation of your work according to the extent of the rights you grant. Some publishers, however, require an assignment – that is, complete ownership of all the rights in the ‘bundle’. An educational publisher, for instance, may publish a textbook in several languages and territories, adapting the text as necessary, and would have good reason to control it in its entirety.
An assignment of copyright must be in writing, and signed by the copyright owner, to take effect.
Journals often require an assignment before publication. If you have assigned copyright in your journal article this means that you no longer own it and may not make multiple copies of it for your students. Strictly speaking, you may not even quote extensively from it without the permission of the copyright owner, who is now the publisher – not you.
Authors should be aware of the implications of assignment.
A few publishers also require a ‘waiver’ of moral rights. No author, unless he or she is the ghost-writer of an autobiography, should agree to this, for it means that you may not be acknowledged as the author or – if you are acknowledged – that the text may be so altered that it could reflect badly on you – and you have no recourse. There is no justification for a textbook publisher to demand a waiver of moral rights.
No! The publisher owns copyright only if you assign it.
That depends on the nature of your work and on your employment contract. According to the Copyright Act, the author of a work owns the copyright except in certain circumstances, the relevant one here being if the author is under a ‘contract of service or apprenticeship’. In the academic context this could mean that what the lecturer writes as part of his teaching or research duties, as specified in his contract of employment (for instance, study guides), belongs to the university.
Authors should clarify with their employers who owns copyright in their works.
Everything that appears on your computer screen is protected by copyright, as a literary or an artistic work as the case may be. The underlying program is protected as a computer program. The law allows you to download and print out for your own use, but you may not on-copy without the permission of the copyright owner. Most websites state clearly who owns copyright in the content on the site or page.
Some authors – and some publishers – have no wish to restrict the use and/or exploitation of their intellectual property, and they grant the right to copy it freely without authorisation or payment.
The underlying principle may be that all knowledge is built on prior knowledge and that authors – of scholarly and academic works in particular – should consider the public good and desist from restricting the copying of their intellectual property. Or it may be that the author’s motive is merely to make his or her work better-known so that the rights conveyed by copyright are unimportant.
The ‘creative commons’ offers types of licences which partially restrict use and exploitation of a work. Usually, the work may be freely copied as long as it is not commercially exploited.
Every author is entitled to choose whether to exercise his or her right of copyright, and no author should be pressured to assign it against his or her will or to offer it gratis for public consumption.
The competing works clause in a contract is sometimes rather poorly expressed. It’s certainly not intended to prevent you from writing anything else on the same topic as your book but, rather, to stop you from writing another work on the same subject and intended for the very same readership. For instance, if you write a biology textbook for Grade 12 you may not write another for Grade 12 and have it published by another publisher, but there should be nothing to stop you from writing one for Grade 5. The operative word here is competing, and it only stands to reason that you ought not to cheat your publisher in this way. If you are unhappy with the wording of this clause – if you think it is ambiguous – ask the publisher to alter it, but not to remove it.
First, you need to identify a publisher of books which have some similarities to yours. Check out the locally published books in a bookshop, or the Publishers’ Association of South Africa (PASA) website. Do not send the full manuscript. Send a letter containing a brief summary of the contents; something about yourself and your knowledge of, or experience in, the subject; and a clear exposition of the potential readership. Include a few pages of the text and offer to send the full text on request.
An excellent reference work, erudite and amusing as well, is Get Your Book Published in 30 (Relatively) Easy Steps by ANFASA member, author and publisher Basil van Rooyen, published by Penguin Books (South Africa) in 2005.
Should I seek a publisher in South Africa or one abroad?
Very few local authors achieve foreign publication and the market for most books written here al
ANFASA cannot make such a decision for authors because all depends on the type of book, the market and the abilities of the author as well as his or her financial situation and the risks he or she is prepared to take. There are stories of great success and of devastating failure. One word of advice, however, is that although it is not particularly difficult to publish a book in terms of editing, proof-reading, designing and printing it, distribution (i.e. actually selling it) can be very difficult if you do not know the ropes.
Authors sometimes feel that they are being ‘ripped off’ by publishers when it comes to the payment of royalties. Some have been known to say “My publisher offered me a royalty of 10%, and took the remaining 90% for himself!”
The determination of an appropriate royalty is up to each individual author and publisher in the negotiation of the publishing contract, but in the interest of clarity on the cost of publishing, the following provides a rough and ready calculation. Let’s say that the book in question is an academic textbook, the retail selling price is R200 and your royalty as author is 10% of net receipts, i.e. the actual sums received by the publisher after booksellers’ discounts.
On each copy of the book sold through a bookshop, the discount averages 35% (for academic works). The publisher receives R130, and you therefore receive R13. The publisher’s costs, however, continue. Print costs depend on the number of copies printed, but for simplicity’s sake let’s say that each printed book costs the publisher R30. The publisher’s share is now R87. Let’s assume that the illustrations, which were commissioned, have cost around R10 a book, and the cover design was in the region of R5 a book. The publisher’s return is now R72. The publisher’s overheads (including salaries for editorial, marketing and accounting staff, rent, warehouse and electricity) might be calculated conservatively at 30% of the retail selling price, or R60. Without going any further, we can see that the publisher’s share is now R12, or a rand less than yours!
You might, on the basis of this, ask why publishers go into business, and how they can possibly make money. The answer is that publishers score when a title sells in large quantities and unit costs drop dramatically. Publishers also make money from the continuing success of titles in their backlists, from the sale of rights to foreign language editions, and from the sale of subsidiary rights.
© Monica Seeber 2008
MEMBERS Monica Seeber (Team Leader) firstname.lastname@example.org Prof Keyan Tomaselli (Academic Sector) email@example.com Samu Mfuphi (ANFASA National Coordinator) firstname.lastname@example.org Jonathan Sabbatha (Author) email@example.com Maria Tsvere (Observer) firstname.lastname@example.org Dr Lee-Ann Tong (Consultant) email@example.com WHAT THE GROUP DOES ANFASA has been following the Copyright Amendment Bill (CAB) for the past few years, and has actively participated in the…