Firstly, many thanks to everyone who commented on last week’s post and shared it on social media. A touch of reality was clearly appreciated!
The current reality for authors and creatives could be about to change, if the UK adopts the new EU Copyright Directive. However, Brexit could have an impact.
On 17th May 2019, the European Copyright Directive passed onto the EU’s official journal of laws, which means the clock is now ticking for member states to adopt it onto their own statute books. Current rules state that members have up to two years to formerly adopt European legislation.
If the UK leaves on 31st October 2019 without a deal, then the UK government doesn’t have to adopt it. (There is, though, nothing stopping it from adopting the legislation of its own accord or something similar, if it so wishes.) If we leave on 31st October 2019 (or any future date) and have a deal with an implementation period that expires before 17th May 2021, then the UK Government doesn’t have to adopt the legislation (but could still choose to enact its own, similar legislation if it wishes). So while this new European legislation could improve authors’ lives (and businesses), there’s no guarantee for us in the UK that we’ll benefit from this legislation.
And there are some great benefits for creative people in this legislation, such as authors and writers:
Article 19 – The Transparency Clause
This clause will force publishers to share better information, at least annually, with its authors. Publishers will have to provide a statement explaining which rights in our works have been exploited (including any sub-licences), how much money has been generated from that exploitation, and clear details as to the author’s share of that exploitation.
Publishers will be forced to convey this information in a meaningful way. (Good luck with that one, based upon some of the royalty statements I’ve received in the past!)
The point of this clause is that it will give authors/creatives a clearer picture of the actual income their work is generating, and how much they are getting from it.
Article 22 – Right of Revision
However, where Article 19 will also be useful is in identifying which rights the publisher has and is exploiting, and those that it has, but are not being exploited. Therefore, this article will mean that after a ’reasonable time’ (and, oh, don’t lawyers and solicitor just love trying to describe reasonable) an author can ask for their rights to be reverted back to them, particularly if the publisher isn’t exploiting them.
There are some publishers who, in the past, will only revert rights when a book is out of print. However, if they use Print on Demand then, technically, the book is not out of print, even though there may be no sales. Article 22 would change this, giving the author a stronger case for having their rights reverted back to them.
Where its strength really lies is in combination with Article 19 – the Transparency Clause. If a publisher’s Transparency Statement shows that it has not exploited some of rights it has acquired then Article 22 strengthens an authors position. It will enable a writer to say, ”Start exploiting the rights you’ve acquired, or I’ll consider formally requesting they are reverted back to me.” (Within a reasonable timeframe, of course!)
It reminded me of a contract I was offered for my novel long before I had secured my agent. This particular publisher explained in an email that their policy was to publish in eBook format first, and if sales did well, they’d then go on to publish in paperback format. Which sounds good business sense, however, when I scrutinised the contract there was no clause clearly stating that when eBook sales reach a figure of X, that would trigger the exploitation of the paperback rights.
So as it stood, the contract would take paperback rights from me, but not necessarily exploit them. Not only would I be losing out on an income stream, but such a contract would have prevented me from exploiting those tights myself.
Therefore, Articles 19 and 22 would give the author/writer more power in such a situation.
Article 20 – the Bestseller Clause
Technically, this is called the Adjustment Mechanism, although it is better known as the Bestseller Clause.
Nobody knows whether a book will become a bestseller or not. Anyone who says they do know is lying. There may be some elements needed for a book to stand a chance of becoming a bestseller, but they are no guarantees that it will.
It was my first book, One Hundred Ways For A Dog To Train Its Human that really demonstrated to me the value of the Society of Authors. When Hodder & Stoughton offered me a contract I asked the Society to check it over for me. They made many recommendations, one of which was an escalator royalty rate. This meant that if sales reach, say, 20,000 copies, any additional copies sold would earn me a higher royalty rate. And if sales exceed 40,000 copies my royalty rate would increase again, and so on. I put this to Hodder and they agreed.
You can imagine how important that contractual amendment was when, within three months of publication, Hodder printed over 100,000 copies, just to keep up with demand. The book spent three weeks on the UK paperback bestseller lists.
But what if I hadn’t taken the SoA’s advice? Or what of Hodder hadn’t agreed to the contractual amendment? This is where Article 20 of the EU Copyright Directive would then come into play. It would force the publishers to review the royalty rate the author is receiving if:
“the remuneration originally agreed under a licence … clearly becomes disproportionately low compared to the relevant revenues derived from the subsequent exploitation of the work.”
In other words, if an author’s work becomes so successful, but the rewards are low, then by law the publisher will have to review the situation. (Now, simply reviewing the situation may not lead to any beneficial change for the author, but the point is there will be a legal duty to review it.) Presently, a publisher can simply say, “You getting what you agreed was deemed acceptable in the contract that you signed.”
And don’t forget Article 19 – the Transparency Clause. This will show authors how much revenue their work has created and how much, as a proportion, they are getting.
The Society of Authors has been campaigning for many years on these issues, and it’s fantastic news that it will become European law. Whether it becomes UK law is yet to be seen, and so the Society of Authors will be lobbying the UK Government to adopt this. As writers we should also be helping to do anything we can to support this lobbying.
There are other aspects of the EU Copyright Directive that benefit authors, particularly the way some works are exploited via Social Media platforms, which are explained further in the Society of Authors’ guide to the directive.
And if you fancy an in-depth read, you can always take a look at the full EU legislation here.
But as I said at the beginning of this rather long (sorry, but it is important) post, it all depends upon what happens with Brexit as to whether UK authors will benefit from this directive.