Episode 070 - Copyright for Authors with Orna Ross
March 16, 2021
Orna Ross of the Alliance of Independent Authors talks about COPYRIGHT FOR AUTHORS. We discuss why it’s so vitally important for authors, and especially indy authors, to understand the basics of copyright, at what point in the creative process copyright is established, the various parameters by which rights can be defined, and when legislation that focuses too heavily on authors’ rights can harm more authors and readers than it helps.
Orna Ross is the founder and head of the Alliance of Independent Authors, a non-profit professional business membership organization for self-publishing authors. ALLi provides trusted advice, supportive guidance, and a range of resources, within a welcoming community of authors and advisors.
"And when widespread self-publishing came along, it seemed to me that the revolutionary aspect of it was that you retained the rights. And I don't think enough authors are cognizant of just how amazing that is." —Orna Ross
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Matty: Hello and welcome to The Indy Author Podcast. Today my guest is Orna Ross. Hey, Orna, how are you doing?
[00:00:06] Orna: Hi, Matty. Hello, everyone. Delighted to be here.
[00:00:09] Matty: I'm delighted to have you here. To give our listeners a little bit of background on you, Orna Ross, among many other accomplishments, is the founder and head of the Alliance of Independent Authors, a nonprofit professional business membership organization for self-publishing authors. ALLi provides trusted advice, supportive guidance, and a range of resources within a welcoming community of authors and advisors. And I can heartily second that description because I'm a very happy and benefiting member of ALLi, and I will be including a link to more information about ALLi in the show notes.
[00:00:39] I asked Orna on the podcast to talk about a topic that, Orna, I think you've been spending a lot of time on it and I think has been a real focus for ALLi, and that is the COPYRIGHT BILL OF RIGHTS, which is something that is sort of foundational for authors to understand, but maybe people don't have quite the understanding that they need to. And so to kick off the conversation, I just wanted to ask you what event or situation triggered your interest in copyright as a topic?
[00:01:07] Orna: Well, I had an interest in copyright personally arising out of my history in working in publishing, because for a period, a shortish period, of time, I worked actually as a literary agent. So I had been running a writing school and we had a number of talented writers that were rising to the top and they were getting these awful contracts being offered to them and thinking that they were great. And so I actually started to take a deep dive into copyright around that time, and very much from a rights perspective and a representing of authors' perspective. And that's where it has continued.
[00:01:47] And when widespread self-publishing came along, it seemed to me that the revolutionary aspect of it was that you retained the rights. And I don't think enough authors are cognizant of just how amazing that is. I think you would have to have worked as a literary agent to understand. When you license your rights, sometimes it's a really good thing to do. I'm not by any means saying that you never do it. And we have lots of independent authors in ALLi who have licensed some of their rights, but the point is until you understand copyright, and understand how it can be broken down into lots of different publishing rights, you don't really understand the value of what you're sitting on. And so that's where the Copyright Bill of Rights began and where all our work on copyright.
[00:02:40] So very often we'll be approached by an author who is either one of two extremes. Either they're not thinking about it at all. Or else if they are thinking about it, they're just worried about it and worried about registering it and paying people, even paying services, to register the copyright for them, which they don't need to do. So I think it's really important that we understand, because we build our business on this fundamental right. We all do, from the biggest publishing house, Penguin Random House, down to the author who's putting their first book out today on a self-publishing platform. Our businesses would be built on this fundamental right called copyright. ...
[00:00:06] Orna: Hi, Matty. Hello, everyone. Delighted to be here.
[00:00:09] Matty: I'm delighted to have you here. To give our listeners a little bit of background on you, Orna Ross, among many other accomplishments, is the founder and head of the Alliance of Independent Authors, a nonprofit professional business membership organization for self-publishing authors. ALLi provides trusted advice, supportive guidance, and a range of resources within a welcoming community of authors and advisors. And I can heartily second that description because I'm a very happy and benefiting member of ALLi, and I will be including a link to more information about ALLi in the show notes.
[00:00:39] I asked Orna on the podcast to talk about a topic that, Orna, I think you've been spending a lot of time on it and I think has been a real focus for ALLi, and that is the COPYRIGHT BILL OF RIGHTS, which is something that is sort of foundational for authors to understand, but maybe people don't have quite the understanding that they need to. And so to kick off the conversation, I just wanted to ask you what event or situation triggered your interest in copyright as a topic?
[00:01:07] Orna: Well, I had an interest in copyright personally arising out of my history in working in publishing, because for a period, a shortish period, of time, I worked actually as a literary agent. So I had been running a writing school and we had a number of talented writers that were rising to the top and they were getting these awful contracts being offered to them and thinking that they were great. And so I actually started to take a deep dive into copyright around that time, and very much from a rights perspective and a representing of authors' perspective. And that's where it has continued.
[00:01:47] And when widespread self-publishing came along, it seemed to me that the revolutionary aspect of it was that you retained the rights. And I don't think enough authors are cognizant of just how amazing that is. I think you would have to have worked as a literary agent to understand. When you license your rights, sometimes it's a really good thing to do. I'm not by any means saying that you never do it. And we have lots of independent authors in ALLi who have licensed some of their rights, but the point is until you understand copyright, and understand how it can be broken down into lots of different publishing rights, you don't really understand the value of what you're sitting on. And so that's where the Copyright Bill of Rights began and where all our work on copyright.
[00:02:40] So very often we'll be approached by an author who is either one of two extremes. Either they're not thinking about it at all. Or else if they are thinking about it, they're just worried about it and worried about registering it and paying people, even paying services, to register the copyright for them, which they don't need to do. So I think it's really important that we understand, because we build our business on this fundamental right. We all do, from the biggest publishing house, Penguin Random House, down to the author who's putting their first book out today on a self-publishing platform. Our businesses would be built on this fundamental right called copyright. ...
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[00:03:22] Matty: So let's start out very basically, and let's say we're that author who's putting out our first book. Let's say we're putting it out on Draft2Digital as an aggregator to reach many of the online platforms and we're putting it out on KDP. I think that's probably a pretty common way for people to start out. Even at that level, what should people be thinking about in terms of copyright?
[00:03:41] Orna: So the first thing to know is that when you put your work out onto a self-publishing platform, you are the owner off the copyright, as we said. So you're the publisher. Draft2Digital isn't a publisher. KDP isn't a publisher. You are the publisher. And so you as the author own the copyright. And that's just a wonderful right, which was one for us by activists in the past, pro author activists. Originally copyright was a publisher right. And it was only through hard work that everybody came around to the idea, yeah, you created the thing. You probably have the right to the thing.
[00:04:21] So, you own the copyright. You own the copyright from the moment that you actually produce the work. There is in the US a custom, and now that has been given some legal standing in recent years, whereby people register a copyright so that it can be proven in a court of law. But in most jurisdictions around the world, that's not necessary. And just by the act of doing it, you own the right.
[00:04:51] Second thing to say is it's not the idea, it's the expression of the idea, that the right rests in. So if you find somebody else has written a book on the same topic, around the same time, or whatever, that's perfectly permissible. And also even titles in the US and some countries, in Germany and some other countries, titles are copyright, but in the US, and in most jurisdictions, there is no copyright in title, and so you will find books that have the same title. So that's the first thing to say: you own the copyright. It's yours.
[00:05:27] The second thing to say is you probably will be pirated. Piracy of your e-book and audio book possibly too, piracy is rife and rampant in the publishing world. And I think the main thing to say about that is that your main challenge as a new author / publisher is not somebody coming and stealing your work. Your main challenge is actually going to be reaching the readers who want to buy your work, and the people who do one thing don't tend to do the other. So buyers don't tend to be pirates and pirates don't tend to be buyers. Some authors get very upset, understandably upset, about piracy, but actually spending a lot of time thinking about piracy or taking action against a piracy is probably not the best use of your time.
[00:06:17] Matty: I just want to loop back to registering your copyright because I think I understood that you were saying that in most countries other than the US where people will be distributing, that the act of publishing the book locks in the copyright, but that the situation is a little bit different in the US, and I was sensing, they were saying it's not necessary for you to pursue the registration of the copyright. Did I understand that correctly?
[00:06:40] Orna: Yes. In fact, it isn't even the publishing that that issues the copyright. It's the writing. So from the second you've written it, in most jurisdictions, that's it. You own the copyright. And as the publisher, obviously you've got a very close relationship with the author. So, you don't have to convince your publisher of that. You may have to convince KDP. You may get an email some fine day from KDP I'm asking you, are you actually the rights holder?
[00:07:07] And you can prove that you are because you are the author, so it's not something you need to worry about. In the US, yes, there has long been this custom of a registration, and it is advisable now in the US to do that. A judge last year or the year before, actually, and it was a finding in a law case, which indicated that they are going to want to see registration as proof. But everywhere else, you don't need to register.
[00:07:36] Matty: I have never registered any of my books. Would you recommend that I go back and register books I already have out, or is this an only going forward if people are going to adopt that practice?
[00:07:45] Orna: Well, the thing about it is the law of copyright is incremental and it grows up. It's a mess, to be frank, because there is no international copyright, for starters. So you've got all these different jurisdictions doing different things in different places. In the bedrock off copyright law, again, it's the same in the US, the author who can prove that they wrote the book, and it's keeping drafts, sending a copy to yourself, there are lots of ways to prove it without registering.
[00:08:14] I find it goes against the grain a little bit to say to everybody you should register because there's cost in registering and so on. And really the only reason to register is some fine day, you end up in court and you have to prove something. For 99% of authors, that day's never going to come. And it's not something, who's going to sue you, who are you going to sue, if you think about it at a practical level. So I would say to people, make the decision with all of that in mind, and if you have a particular book that might for some reason end up in law, either for copyright reasons or for libel reasons or some other reason, you might want to think about it particularly for a book like that. But if you haven't done it so far and life has been fine for you, I think you can assume life's going to be fine going forward as well.
[00:09:04] Matty: If registration is basically a way of confirming that you, in fact, had created this body of work at a certain time, I know I've heard people say, if you email yourself a copy of the book so that you can go back, if someone says, Oh, I had that idea in 2000, you can say , well, I had it in 1999, because here's the email to prove it, is that a legitimate thing to have in your back pocket?
[00:09:28] Orna: Yes. Again, just to say, it's not the idea. So if there is a controversy here it would be that the actual words, the expression of the words, of the concept, of the idea. So there is no copyright in ideas. And so to authors can have an idea at the same time. It happens. But they will never, ever express the idea exactly the same, even in the shortest of poems, never mind the longest of books.
[00:09:55] So, yes, a court should accept any proof that you are actually the author, and as the author, we've got loads of proof lying around. So yes, people do all sorts of things. In the old days, it used to be mail yourself copy and you had it date stamped. Now we have email. You have your email drafts on your computer, you know, you will have emailed your editor a draft, they've done editorial work on it. So there are so many ways that if push came to shove, you could actually prove ownership of that. And again, as I say, I don't think people should worry too much about it.
[00:10:31] Matty: I want to switch now a little bit away from registration to copyright. And one of the things that I think is important for people to understand is there are many aspects of granting rights to your work. So there's the medium it's on. There's the geography it applies to. It's the timeframes, I believe. Can you talk about that a little bit?
[00:10:51] Orna: Yes. So in our rights book what we talk about is three things to think about and you're absolutely right. First thing is format, and as self-publishing authors, we're very familiar with three formats now. I think the e-book tends to be the first one that we produce. Perhaps second, we produce the print book, though increasingly we're seeing authors secondly producing the audio book because that's also a digital version. And then print.
[00:11:18] So you've got ebook, audio book, and print. But of course outside and around that you have what in the traditional publishing contract is called the subsidiary rights. And so we're talking here about TV and film and merchandising rights. And there's a whole swathe of rights that get a page or two in every publishing contract. First serial rights, which would be a production of a chapter or an extract or something in a magazine or newspaper, and so on.
[00:11:47] So each of those rights represents an opportunity to make money from that original core piece of intellectual property, which is what we're talking about. Copyright is a branch of intellectual property law. So yes, the first thing you think about is the format.
[00:12:04] The second thing you think about is what we call the territory, so that would be particularly for physical objects. So for the digital format, it's world rights. You cannot control where an ebook goes to or comes from, and similarly a digital audio book, which is how most audio books are consumed these days. But a physical object like a book, hardback or paperback, or a CD of an audio book or some other physical, then you're into territory.
[00:12:37] In the old days, publishing was called "the gentleman's profession" and the gentlemen of publishing divided the world largely between Manhattan and London. So you had North American rights and you had UK and Commonwealth rights. And they were the big English-speaking blocs, if you like. And they kind of agreed to leave each other alone and not sell each other’s editions into the opposite territory, and they would fight over Europe. And so would the UK version or the American version become the dominant English language version in France or whatever would be something the rights people would think about.
[00:13:16] Digital has messed a bit with all of this, and now most rights buyers are looking for world rights, but they have not increased the amount that are willing to pay for that. In the old days, if they were buying world rights, they would pay at least twice as much. And now they're looking for world rights as standard. So when you come to meet a rights buyer, they're going to be trying to get the most possible formats in the most possible territory is for the longest possible time.
[00:13:45] That's the third thing we look at: term, how long they get to license the rights for. And your job then is getting them the fewest possible formats in fewest possible territories for the shortest possible term. And it's a negotiation. And very few writers actually, when they're starting off, approach it like that. Most writers, if they get an offer from a rights buyer, they're so excited, they're, yay! Yes, yes. Fantastic. And they think it's wonderful and they don't stop and think. We had a case here recently where a children's writer whose publisher, a trade publisher, bought the rights to this character who is now becoming a household name through a TV program, which has taken off hugely and become hugely, hugely popular. But that author is not getting one penny. Not a single dime, as you guys would say, because she just gave all rights ad infinitum, and the publisher is quite happy to just go off and exploit it, despite being asked to acknowledge. No.
[00:14:55] So it really is important to stop and think about the rights and what you're giving over, and to think about it as a negotiation. Not to be hurt or offended that the publisher is doing this, which I think is very often how we feel. I feel hurt and offended on behalf of writers who find themselves in this situation, but really the proper attitude to take as a business-like attitude. They're a business. They're going to be trying to do the very best thing they can do for their business. You are business and you're going to try and do the very best thing you could do for your business. So you have to lose all attitudes of, publish me, please. That doesn't go well for the independent author.
[00:15:38] Matty: I think one of the hardest things about this is it's very easy in retrospect to say, oh, if this person had only, let's say, spent a thousand dollars on a lawyer to look at the agreement or engaged a professional to help negotiate that, now she'd be making millions of dollars because of the success of her character. But you can't know that in the moment. I think for a lot of authors, it's the idea that there are free resources like ALLi or, once you're a member, they're free through ALLi, and I'm sure there are many people who you can pay to help you through this, but you don't know, at that moment, what's on the line. Is it that you're going to spend a thousand dollars and you're going to make $800, or you're going to spend a thousand dollars and you're going to make a million? How do you advise people when they're making that decision and they have to weigh what might happen in the future?
[00:16:25] Orna: Well, I think the first thing is education, really, and that's why I put so much time and effort into that. There are books now, there are other authors and there are people who can advise you. So in fact, rights, while people will feel it's very complicated and looking at a contract can be an overwhelming experience, in fact, it's not that complex. Really the contract is laid out in very predictable sort of way. The thing that you don't know is what's missing. So yes, it's really important that you get expertise in. And as you say, ALLi gives contract advice to our members, and this is where the Copyright Bill of Rights, which kind of captured your interest, came from and where our book HOW AUTHORS SELL PUBLISHING RIGHTS came from.
[00:17:13] It's just to explain, for authors to understand I think is the main thing. And for us to spread the word to each other and for us to encourage each other and to understand, just as you are doing right now, and why I'm doing this podcast with you is just to spread the word, because I think it all makes perfect sense once you know. If you don't know, then yeah, it's what you don't know is going to be the problem.
[00:17:37] A literary agent is also a very good option. If you have a decent offer from a rights buyer, you will probably find a literary agent who's suitable for your genre for that expertise in the area who can work on your behalf. And that's not money upfront. They will only be paid when you are paid, and most agents would get more from the negotiation of the contract than you would get for yourself. And they pay for their 15% on more just by what they do.
[00:18:07] You can, yes, hire an attorney, but I have seen a lot of writers hire and helped. But if you are hiring somebody in the legal profession to help you, they must have experience in publishing law. It's a very particular kind of thing. So I have seen authors going to their local solicitor, their local lawyer, and say, look over this contract for me. And the lawyer looks over it and says, yeah, it looks fine to me. But they don't know what should be there, so they're not necessarily picking up on that. So if you are getting some legal help, then make sure that it is somebody who is au fait with publishing law.
[00:18:44] Matty: That's something that I talked about with Lisa Regan. I'll include a link to this episode, but the episode was PULLING BACK THE CURTAIN ON TRADITIONAL PUBLISHING. We were talking a little bit about the behind-the-scenes aspect, and we talked about that exact thing, the necessity of getting legal advice from someone who knows what they're talking about.
[00:19:04] And the other resource I'll offer is that I found that Douglas Smith's description of rights in PLAYING THE SHORT GAME, which I read when I was doing research for TAKING THE SHORT TACK which is the book that Mark Leslie Lefebvre and I wrote together, but Mark and I didn't even get into the legal side because we felt that Doug had covered it so nicely there. And that book is a few years old now, but that was the first time that I got this insight into the idea that there are the different media and the different geographies, the different territories, the different aspects. It's not just, you're selling your rights or you're not selling your rights.
[00:19:36] Orna: That's great. And we will provide also a link to our rights and books. And there's also, while we're talking resources, Helen Sedwick's SELF-PUBLISHER'S LEGAL HANDBOOK , which is also a good resource on all matters legal, not just copyright, but she's got a great foundational chapter on copyright as well.
[00:19:57] Matty: If someone is lucky enough to be approached by someone looking for rights, at some point, if you decide you want to pursue it, you're going to get to the point of looking at the contract they want to offer, but there's the legitimate business back and forth of, they want the greatest rights for the least money. You want to keep as many rights as you can. Are there warning signs that people should look for if they're approached by a company, before they even get to the point of looking at a contract, that should be red lights for them to say, this is probably not a company I want to be talking about rights with?
[00:20:28] Orna: Yeah. First of all, if you're not particularly successful, then you can probably disregard it. So there are spammers and scammers who just get hold off a list of indy authors somewhere, and they just send out, willy-nilly, an email saying, your book is amazing, and we want to buy the rights and blah, blah, blah, blah.
[00:20:49] Generally speaking, first thing you do, Google the name of this company, look and see what other books they're associated with. That's the first thing to do. But you have to be selling a lot to garner rights interest. And what is a lot? Well, for most rights buyers, we're looking at 30,000 copies sold probably as an independent author before they're going to be actually approaching you out of the blue in that way.
[00:21:17] So if you're not publishing at that sort of level, then more than likely, you've just got one of these scamming, fishing. Very often they come in and they make the offer, and then it can be all sorts of things behind that. They can be selling services, or they can be doing anything, so really best to just disregard that. But yeah. Google anybody immediately. Take a look and see what else they've published. You will very quickly get a picture. If somebody that's invisible isn't really publishing and isn't an actual buyer, it's very easy to see.
[00:21:53] Matty: One of the things that I thought was very interesting when I was reading through the ALLi material was there were some notes about the detriment of legislation that focuses too heavily on author's rights. Can you talk about the dangers there?
[00:22:08] Orna: Yes. I think a very good example of the way in which legislation can get it a little bit wrong in this way that we've all experienced now is GDPR. So it made total sense that people wanted to control email spamming, which we've just been talking about. And a big raft of legislation was introduced by the European community called GDPR. Everything in there made total sense. In actual fact, it's become you can see what happens. You go onto a website and it'll ask you to accept whatever, and they have a big, long string thing behind it.
[00:22:43] And you accept it. You are now accepting things that you never accepted before, and you don't even know what you're accepting some of the time. You haven't got time to stop and read all their cookie privacy policy, blah, blah, blah, blah, blah. That will be a very good example of where the law just doesn't cope that well with the realities of digital.
[00:23:04] And we're seeing it particularly with the filters issue for YouTube and Google and people like that. So you've got a situation where they're going to apply filters, which will be an attempt to make sure that rights holders are attributed. But in the applying of those filters, it's a very blunt instrument and it means that people who are doing experimental sort of work, who are doing activist work, establishment-shaking sort of work, they are also filtered out.
[00:23:37] And so we're blandifying lots of possible in terms of publication, because we're trying to control problems, we're taking in a lot of material that isn't actually problem material. What's happening is in Silicon Valley, you've got these big companies and these big tech companies like Amazon, like Google, we know them all, Facebook and so on, and we know what they're doing, and we understand what's going on there.
[00:24:03] And we've got traditional publishing in Manhattan and London still, and post pandemic that might change, I don't know. And what you've got in Europe is you've got sort of sizing up as Big Legal to take on Big Tech and Big Publishing. We've got to be very careful. And so the copyright directive that went through last year and it was hailed by a lot of author organizations as an advance, we're not so sure that it is, actually, that we predict that it's going to create a lot of problems for content creators in the future.
[00:24:37] Matty: One thing that that reminds me of is the whole question of DRM, let me know if we're going too far afield from copyright here, but I used to always just indicate that I wanted digital rights management when I loaded a book to Amazon because rights management, that sounded good, right? And then later I learned that was actually, I think, doing what you're talking about, imposing limits that you don't want to impose. Is digital rights management sort of part of the copyright conversation?
[00:25:03] Orna: It's an excellent example of what I'm talking about. Absolutely. So most authors, as you say, coming to think, rights management, yes, of course. I want to manage my rights and want to contain my rights and that sounds good. Let's do that. But actually what happens in that situation is any hacker who wants to get around DRM will do it in an hour. There is no DRM lock that you can put on it, you can't actually lock it up. It's not possible because all it's doing, it's just code and code can always be dismantled or interpreted. Yeah. That's one reason. But another reason is you're actually making it harder for the reader, who's the person you want to reach, to actually access the information in the way that they want to. If you're with digital rights management, you're getting proprietary about who can and who can't see it and so on.
[00:25:53] And so it definitely caused more problems than it solved. And again, it was traditional publishing trying to protect the rights that they had purchased from all of this. And it's, again, completely understandable, but not really very workable. And we've got a lot of these things going on at the moment and it's only going to get worse, by the way, because we've got AI coming now. And who owns copywriting in an AI produced piece of work is a question that's going to keep a lot of people up late at night.
[00:26:25] Matty: I know that could be an entire separate podcast episode because I've heard many of those episodes on Joanna Penn's The Creative Penn, and I'm just going to include some links to episodes there, because that it's a tangled web, a potentially tangled web that we'll be opening up a whole new set of questions about what happens when you've used a machine to help you write a story and who owns the rights and so on.
[00:26:46] Orna: Absolutely, yes. Interesting times ahead.
[00:26:50] Matty: So we've already mentioned a lot of resources that authors can use to research copyright. Are there any particular updates coming down the pike or things that you would recommend authors keep an eye on, especially indy authors?
[00:27:06] Orna: Yeah, we did an actual six-month program coming up to London Book Fair last year, it was to culminate at London Book Fair 2020, so it was for the six months before that. And we brought a few authors, six or seven, indy authors who were interested in licensing their rights. And we were looking particularly at foreign translation rights, but we took a bit of a look at lots of things, but it was focusing mainly on translation rights.
[00:27:34] And they went through the process and ALLi has a dedicated literary agent, Ethan Ellenberg, a New York City agency, that both answers questions and queries that our members have about rights and offers representation sometimes. And he also contributed hugely to this rights program and explaining to the authors how to do it and how to make the approaches and all that kind of thing. And PubMatch also, which is a rights marketplace, was also involved, a US company that you may be familiar with.
[00:28:10] So they're worth being part of, if you want to take this seriously. So that program was called The Indie Author Rights Program, and you can find the reports on those are widely available on the Self-Publishing Advice Centre. So that's selfpublishingadvice.org. So, yeah, I would say if you are thinking about your rights in these terms and you think, yeah, I would like, rather than trying to, for example, do my own translations, work with a translator, I would actually like to license the translation and just let somebody else who's expert in that country do the work for me, then you need to think about it as an actual wing of your business. And you need to realize you're going to have to devote time and effort to licensing the rights. And when we see authors doing that, they are very successful.
[00:29:01] So, while I said you need to have a huge amount of sales in order to attract a rights buyers spontaneously to write you out of the blue, because they'll have found you on the bestseller list somewhere or you'd have come to their attention in some way as a seller, in order to actually reach out to somebody and get a contract and see your book sold in translation.
[00:29:22] And, we have seen authors really manage that extremely well. It's time consuming. It's ad hoc. It's not a very ordered world. It's very all over the place kind of a world, but the first one's the hardest, and once you've begun to sell foreign rights, then it gets easier, each one that you sell, it gets easier the next time. And I think if you keep those three things in mind, the territory, the term, and the format, and limit, then you will go too far wrong and then it can be quite exciting too.
[00:29:53] Matty: This is great because it's pulling in a lot of topics from previous episodes. There was an episode with Emma Prince about translations. She writes Scottish medieval romance, and they were very popular in Germany, so I’ll also include a link to Emma's discussion about her translations and how successful she was with those.
[00:30:08] Orna: It's fascinating, actually, what sells where. It makes no sense. That's what I'm saying. It's a really idiosyncratic kind of world, the world of right. You've got Japan and Japan buying Scottish lingo kind of things that you wouldn't think anybody outside Scotland would even be able to read or be able to understand, you know? The mind boggles with it, really. It doesn't make any sense. And that's why it can be very colorful and exciting kind of thing to be doing. Yeah.
[00:30:39] Matty: This has been so helpful. I think you've not only given people some great things to do, but I think just as importantly, you've given people some things they don't have to do, which I think will save them a lot of time. So please let listeners know where they can go to find out more about you, about ALLi, and about the services that ALLi offers.
[00:30:55] Orna: Yeah. So you'll find ALLi at AllianceIndependentAuthors.org. And we also run for the wider community the Self Publishing Advice Centres on that's SelfPublishingdvice.org. And there we have an almost daily blog and our weekly podcast and if you just Google "rights" there, you can find lots of other stuff. And the Copyright Bill of Rights, you'll find at AllianceIndependentAuthors.org/rights and what we're trying to do there was just lay down the bill of rights, really what copyright means, just trying to simplify it down to its purest elements so that indy authors in particular will know how to approach this important topic.
[00:31:44] Matty: Great. Thank you so much, Orna.
[00:31:45] Orna: Thank you, Matty.
[00:03:41] Orna: So the first thing to know is that when you put your work out onto a self-publishing platform, you are the owner off the copyright, as we said. So you're the publisher. Draft2Digital isn't a publisher. KDP isn't a publisher. You are the publisher. And so you as the author own the copyright. And that's just a wonderful right, which was one for us by activists in the past, pro author activists. Originally copyright was a publisher right. And it was only through hard work that everybody came around to the idea, yeah, you created the thing. You probably have the right to the thing.
[00:04:21] So, you own the copyright. You own the copyright from the moment that you actually produce the work. There is in the US a custom, and now that has been given some legal standing in recent years, whereby people register a copyright so that it can be proven in a court of law. But in most jurisdictions around the world, that's not necessary. And just by the act of doing it, you own the right.
[00:04:51] Second thing to say is it's not the idea, it's the expression of the idea, that the right rests in. So if you find somebody else has written a book on the same topic, around the same time, or whatever, that's perfectly permissible. And also even titles in the US and some countries, in Germany and some other countries, titles are copyright, but in the US, and in most jurisdictions, there is no copyright in title, and so you will find books that have the same title. So that's the first thing to say: you own the copyright. It's yours.
[00:05:27] The second thing to say is you probably will be pirated. Piracy of your e-book and audio book possibly too, piracy is rife and rampant in the publishing world. And I think the main thing to say about that is that your main challenge as a new author / publisher is not somebody coming and stealing your work. Your main challenge is actually going to be reaching the readers who want to buy your work, and the people who do one thing don't tend to do the other. So buyers don't tend to be pirates and pirates don't tend to be buyers. Some authors get very upset, understandably upset, about piracy, but actually spending a lot of time thinking about piracy or taking action against a piracy is probably not the best use of your time.
[00:06:17] Matty: I just want to loop back to registering your copyright because I think I understood that you were saying that in most countries other than the US where people will be distributing, that the act of publishing the book locks in the copyright, but that the situation is a little bit different in the US, and I was sensing, they were saying it's not necessary for you to pursue the registration of the copyright. Did I understand that correctly?
[00:06:40] Orna: Yes. In fact, it isn't even the publishing that that issues the copyright. It's the writing. So from the second you've written it, in most jurisdictions, that's it. You own the copyright. And as the publisher, obviously you've got a very close relationship with the author. So, you don't have to convince your publisher of that. You may have to convince KDP. You may get an email some fine day from KDP I'm asking you, are you actually the rights holder?
[00:07:07] And you can prove that you are because you are the author, so it's not something you need to worry about. In the US, yes, there has long been this custom of a registration, and it is advisable now in the US to do that. A judge last year or the year before, actually, and it was a finding in a law case, which indicated that they are going to want to see registration as proof. But everywhere else, you don't need to register.
[00:07:36] Matty: I have never registered any of my books. Would you recommend that I go back and register books I already have out, or is this an only going forward if people are going to adopt that practice?
[00:07:45] Orna: Well, the thing about it is the law of copyright is incremental and it grows up. It's a mess, to be frank, because there is no international copyright, for starters. So you've got all these different jurisdictions doing different things in different places. In the bedrock off copyright law, again, it's the same in the US, the author who can prove that they wrote the book, and it's keeping drafts, sending a copy to yourself, there are lots of ways to prove it without registering.
[00:08:14] I find it goes against the grain a little bit to say to everybody you should register because there's cost in registering and so on. And really the only reason to register is some fine day, you end up in court and you have to prove something. For 99% of authors, that day's never going to come. And it's not something, who's going to sue you, who are you going to sue, if you think about it at a practical level. So I would say to people, make the decision with all of that in mind, and if you have a particular book that might for some reason end up in law, either for copyright reasons or for libel reasons or some other reason, you might want to think about it particularly for a book like that. But if you haven't done it so far and life has been fine for you, I think you can assume life's going to be fine going forward as well.
[00:09:04] Matty: If registration is basically a way of confirming that you, in fact, had created this body of work at a certain time, I know I've heard people say, if you email yourself a copy of the book so that you can go back, if someone says, Oh, I had that idea in 2000, you can say , well, I had it in 1999, because here's the email to prove it, is that a legitimate thing to have in your back pocket?
[00:09:28] Orna: Yes. Again, just to say, it's not the idea. So if there is a controversy here it would be that the actual words, the expression of the words, of the concept, of the idea. So there is no copyright in ideas. And so to authors can have an idea at the same time. It happens. But they will never, ever express the idea exactly the same, even in the shortest of poems, never mind the longest of books.
[00:09:55] So, yes, a court should accept any proof that you are actually the author, and as the author, we've got loads of proof lying around. So yes, people do all sorts of things. In the old days, it used to be mail yourself copy and you had it date stamped. Now we have email. You have your email drafts on your computer, you know, you will have emailed your editor a draft, they've done editorial work on it. So there are so many ways that if push came to shove, you could actually prove ownership of that. And again, as I say, I don't think people should worry too much about it.
[00:10:31] Matty: I want to switch now a little bit away from registration to copyright. And one of the things that I think is important for people to understand is there are many aspects of granting rights to your work. So there's the medium it's on. There's the geography it applies to. It's the timeframes, I believe. Can you talk about that a little bit?
[00:10:51] Orna: Yes. So in our rights book what we talk about is three things to think about and you're absolutely right. First thing is format, and as self-publishing authors, we're very familiar with three formats now. I think the e-book tends to be the first one that we produce. Perhaps second, we produce the print book, though increasingly we're seeing authors secondly producing the audio book because that's also a digital version. And then print.
[00:11:18] So you've got ebook, audio book, and print. But of course outside and around that you have what in the traditional publishing contract is called the subsidiary rights. And so we're talking here about TV and film and merchandising rights. And there's a whole swathe of rights that get a page or two in every publishing contract. First serial rights, which would be a production of a chapter or an extract or something in a magazine or newspaper, and so on.
[00:11:47] So each of those rights represents an opportunity to make money from that original core piece of intellectual property, which is what we're talking about. Copyright is a branch of intellectual property law. So yes, the first thing you think about is the format.
[00:12:04] The second thing you think about is what we call the territory, so that would be particularly for physical objects. So for the digital format, it's world rights. You cannot control where an ebook goes to or comes from, and similarly a digital audio book, which is how most audio books are consumed these days. But a physical object like a book, hardback or paperback, or a CD of an audio book or some other physical, then you're into territory.
[00:12:37] In the old days, publishing was called "the gentleman's profession" and the gentlemen of publishing divided the world largely between Manhattan and London. So you had North American rights and you had UK and Commonwealth rights. And they were the big English-speaking blocs, if you like. And they kind of agreed to leave each other alone and not sell each other’s editions into the opposite territory, and they would fight over Europe. And so would the UK version or the American version become the dominant English language version in France or whatever would be something the rights people would think about.
[00:13:16] Digital has messed a bit with all of this, and now most rights buyers are looking for world rights, but they have not increased the amount that are willing to pay for that. In the old days, if they were buying world rights, they would pay at least twice as much. And now they're looking for world rights as standard. So when you come to meet a rights buyer, they're going to be trying to get the most possible formats in the most possible territory is for the longest possible time.
[00:13:45] That's the third thing we look at: term, how long they get to license the rights for. And your job then is getting them the fewest possible formats in fewest possible territories for the shortest possible term. And it's a negotiation. And very few writers actually, when they're starting off, approach it like that. Most writers, if they get an offer from a rights buyer, they're so excited, they're, yay! Yes, yes. Fantastic. And they think it's wonderful and they don't stop and think. We had a case here recently where a children's writer whose publisher, a trade publisher, bought the rights to this character who is now becoming a household name through a TV program, which has taken off hugely and become hugely, hugely popular. But that author is not getting one penny. Not a single dime, as you guys would say, because she just gave all rights ad infinitum, and the publisher is quite happy to just go off and exploit it, despite being asked to acknowledge. No.
[00:14:55] So it really is important to stop and think about the rights and what you're giving over, and to think about it as a negotiation. Not to be hurt or offended that the publisher is doing this, which I think is very often how we feel. I feel hurt and offended on behalf of writers who find themselves in this situation, but really the proper attitude to take as a business-like attitude. They're a business. They're going to be trying to do the very best thing they can do for their business. You are business and you're going to try and do the very best thing you could do for your business. So you have to lose all attitudes of, publish me, please. That doesn't go well for the independent author.
[00:15:38] Matty: I think one of the hardest things about this is it's very easy in retrospect to say, oh, if this person had only, let's say, spent a thousand dollars on a lawyer to look at the agreement or engaged a professional to help negotiate that, now she'd be making millions of dollars because of the success of her character. But you can't know that in the moment. I think for a lot of authors, it's the idea that there are free resources like ALLi or, once you're a member, they're free through ALLi, and I'm sure there are many people who you can pay to help you through this, but you don't know, at that moment, what's on the line. Is it that you're going to spend a thousand dollars and you're going to make $800, or you're going to spend a thousand dollars and you're going to make a million? How do you advise people when they're making that decision and they have to weigh what might happen in the future?
[00:16:25] Orna: Well, I think the first thing is education, really, and that's why I put so much time and effort into that. There are books now, there are other authors and there are people who can advise you. So in fact, rights, while people will feel it's very complicated and looking at a contract can be an overwhelming experience, in fact, it's not that complex. Really the contract is laid out in very predictable sort of way. The thing that you don't know is what's missing. So yes, it's really important that you get expertise in. And as you say, ALLi gives contract advice to our members, and this is where the Copyright Bill of Rights, which kind of captured your interest, came from and where our book HOW AUTHORS SELL PUBLISHING RIGHTS came from.
[00:17:13] It's just to explain, for authors to understand I think is the main thing. And for us to spread the word to each other and for us to encourage each other and to understand, just as you are doing right now, and why I'm doing this podcast with you is just to spread the word, because I think it all makes perfect sense once you know. If you don't know, then yeah, it's what you don't know is going to be the problem.
[00:17:37] A literary agent is also a very good option. If you have a decent offer from a rights buyer, you will probably find a literary agent who's suitable for your genre for that expertise in the area who can work on your behalf. And that's not money upfront. They will only be paid when you are paid, and most agents would get more from the negotiation of the contract than you would get for yourself. And they pay for their 15% on more just by what they do.
[00:18:07] You can, yes, hire an attorney, but I have seen a lot of writers hire and helped. But if you are hiring somebody in the legal profession to help you, they must have experience in publishing law. It's a very particular kind of thing. So I have seen authors going to their local solicitor, their local lawyer, and say, look over this contract for me. And the lawyer looks over it and says, yeah, it looks fine to me. But they don't know what should be there, so they're not necessarily picking up on that. So if you are getting some legal help, then make sure that it is somebody who is au fait with publishing law.
[00:18:44] Matty: That's something that I talked about with Lisa Regan. I'll include a link to this episode, but the episode was PULLING BACK THE CURTAIN ON TRADITIONAL PUBLISHING. We were talking a little bit about the behind-the-scenes aspect, and we talked about that exact thing, the necessity of getting legal advice from someone who knows what they're talking about.
[00:19:04] And the other resource I'll offer is that I found that Douglas Smith's description of rights in PLAYING THE SHORT GAME, which I read when I was doing research for TAKING THE SHORT TACK which is the book that Mark Leslie Lefebvre and I wrote together, but Mark and I didn't even get into the legal side because we felt that Doug had covered it so nicely there. And that book is a few years old now, but that was the first time that I got this insight into the idea that there are the different media and the different geographies, the different territories, the different aspects. It's not just, you're selling your rights or you're not selling your rights.
[00:19:36] Orna: That's great. And we will provide also a link to our rights and books. And there's also, while we're talking resources, Helen Sedwick's SELF-PUBLISHER'S LEGAL HANDBOOK , which is also a good resource on all matters legal, not just copyright, but she's got a great foundational chapter on copyright as well.
[00:19:57] Matty: If someone is lucky enough to be approached by someone looking for rights, at some point, if you decide you want to pursue it, you're going to get to the point of looking at the contract they want to offer, but there's the legitimate business back and forth of, they want the greatest rights for the least money. You want to keep as many rights as you can. Are there warning signs that people should look for if they're approached by a company, before they even get to the point of looking at a contract, that should be red lights for them to say, this is probably not a company I want to be talking about rights with?
[00:20:28] Orna: Yeah. First of all, if you're not particularly successful, then you can probably disregard it. So there are spammers and scammers who just get hold off a list of indy authors somewhere, and they just send out, willy-nilly, an email saying, your book is amazing, and we want to buy the rights and blah, blah, blah, blah.
[00:20:49] Generally speaking, first thing you do, Google the name of this company, look and see what other books they're associated with. That's the first thing to do. But you have to be selling a lot to garner rights interest. And what is a lot? Well, for most rights buyers, we're looking at 30,000 copies sold probably as an independent author before they're going to be actually approaching you out of the blue in that way.
[00:21:17] So if you're not publishing at that sort of level, then more than likely, you've just got one of these scamming, fishing. Very often they come in and they make the offer, and then it can be all sorts of things behind that. They can be selling services, or they can be doing anything, so really best to just disregard that. But yeah. Google anybody immediately. Take a look and see what else they've published. You will very quickly get a picture. If somebody that's invisible isn't really publishing and isn't an actual buyer, it's very easy to see.
[00:21:53] Matty: One of the things that I thought was very interesting when I was reading through the ALLi material was there were some notes about the detriment of legislation that focuses too heavily on author's rights. Can you talk about the dangers there?
[00:22:08] Orna: Yes. I think a very good example of the way in which legislation can get it a little bit wrong in this way that we've all experienced now is GDPR. So it made total sense that people wanted to control email spamming, which we've just been talking about. And a big raft of legislation was introduced by the European community called GDPR. Everything in there made total sense. In actual fact, it's become you can see what happens. You go onto a website and it'll ask you to accept whatever, and they have a big, long string thing behind it.
[00:22:43] And you accept it. You are now accepting things that you never accepted before, and you don't even know what you're accepting some of the time. You haven't got time to stop and read all their cookie privacy policy, blah, blah, blah, blah, blah. That will be a very good example of where the law just doesn't cope that well with the realities of digital.
[00:23:04] And we're seeing it particularly with the filters issue for YouTube and Google and people like that. So you've got a situation where they're going to apply filters, which will be an attempt to make sure that rights holders are attributed. But in the applying of those filters, it's a very blunt instrument and it means that people who are doing experimental sort of work, who are doing activist work, establishment-shaking sort of work, they are also filtered out.
[00:23:37] And so we're blandifying lots of possible in terms of publication, because we're trying to control problems, we're taking in a lot of material that isn't actually problem material. What's happening is in Silicon Valley, you've got these big companies and these big tech companies like Amazon, like Google, we know them all, Facebook and so on, and we know what they're doing, and we understand what's going on there.
[00:24:03] And we've got traditional publishing in Manhattan and London still, and post pandemic that might change, I don't know. And what you've got in Europe is you've got sort of sizing up as Big Legal to take on Big Tech and Big Publishing. We've got to be very careful. And so the copyright directive that went through last year and it was hailed by a lot of author organizations as an advance, we're not so sure that it is, actually, that we predict that it's going to create a lot of problems for content creators in the future.
[00:24:37] Matty: One thing that that reminds me of is the whole question of DRM, let me know if we're going too far afield from copyright here, but I used to always just indicate that I wanted digital rights management when I loaded a book to Amazon because rights management, that sounded good, right? And then later I learned that was actually, I think, doing what you're talking about, imposing limits that you don't want to impose. Is digital rights management sort of part of the copyright conversation?
[00:25:03] Orna: It's an excellent example of what I'm talking about. Absolutely. So most authors, as you say, coming to think, rights management, yes, of course. I want to manage my rights and want to contain my rights and that sounds good. Let's do that. But actually what happens in that situation is any hacker who wants to get around DRM will do it in an hour. There is no DRM lock that you can put on it, you can't actually lock it up. It's not possible because all it's doing, it's just code and code can always be dismantled or interpreted. Yeah. That's one reason. But another reason is you're actually making it harder for the reader, who's the person you want to reach, to actually access the information in the way that they want to. If you're with digital rights management, you're getting proprietary about who can and who can't see it and so on.
[00:25:53] And so it definitely caused more problems than it solved. And again, it was traditional publishing trying to protect the rights that they had purchased from all of this. And it's, again, completely understandable, but not really very workable. And we've got a lot of these things going on at the moment and it's only going to get worse, by the way, because we've got AI coming now. And who owns copywriting in an AI produced piece of work is a question that's going to keep a lot of people up late at night.
[00:26:25] Matty: I know that could be an entire separate podcast episode because I've heard many of those episodes on Joanna Penn's The Creative Penn, and I'm just going to include some links to episodes there, because that it's a tangled web, a potentially tangled web that we'll be opening up a whole new set of questions about what happens when you've used a machine to help you write a story and who owns the rights and so on.
[00:26:46] Orna: Absolutely, yes. Interesting times ahead.
[00:26:50] Matty: So we've already mentioned a lot of resources that authors can use to research copyright. Are there any particular updates coming down the pike or things that you would recommend authors keep an eye on, especially indy authors?
[00:27:06] Orna: Yeah, we did an actual six-month program coming up to London Book Fair last year, it was to culminate at London Book Fair 2020, so it was for the six months before that. And we brought a few authors, six or seven, indy authors who were interested in licensing their rights. And we were looking particularly at foreign translation rights, but we took a bit of a look at lots of things, but it was focusing mainly on translation rights.
[00:27:34] And they went through the process and ALLi has a dedicated literary agent, Ethan Ellenberg, a New York City agency, that both answers questions and queries that our members have about rights and offers representation sometimes. And he also contributed hugely to this rights program and explaining to the authors how to do it and how to make the approaches and all that kind of thing. And PubMatch also, which is a rights marketplace, was also involved, a US company that you may be familiar with.
[00:28:10] So they're worth being part of, if you want to take this seriously. So that program was called The Indie Author Rights Program, and you can find the reports on those are widely available on the Self-Publishing Advice Centre. So that's selfpublishingadvice.org. So, yeah, I would say if you are thinking about your rights in these terms and you think, yeah, I would like, rather than trying to, for example, do my own translations, work with a translator, I would actually like to license the translation and just let somebody else who's expert in that country do the work for me, then you need to think about it as an actual wing of your business. And you need to realize you're going to have to devote time and effort to licensing the rights. And when we see authors doing that, they are very successful.
[00:29:01] So, while I said you need to have a huge amount of sales in order to attract a rights buyers spontaneously to write you out of the blue, because they'll have found you on the bestseller list somewhere or you'd have come to their attention in some way as a seller, in order to actually reach out to somebody and get a contract and see your book sold in translation.
[00:29:22] And, we have seen authors really manage that extremely well. It's time consuming. It's ad hoc. It's not a very ordered world. It's very all over the place kind of a world, but the first one's the hardest, and once you've begun to sell foreign rights, then it gets easier, each one that you sell, it gets easier the next time. And I think if you keep those three things in mind, the territory, the term, and the format, and limit, then you will go too far wrong and then it can be quite exciting too.
[00:29:53] Matty: This is great because it's pulling in a lot of topics from previous episodes. There was an episode with Emma Prince about translations. She writes Scottish medieval romance, and they were very popular in Germany, so I’ll also include a link to Emma's discussion about her translations and how successful she was with those.
[00:30:08] Orna: It's fascinating, actually, what sells where. It makes no sense. That's what I'm saying. It's a really idiosyncratic kind of world, the world of right. You've got Japan and Japan buying Scottish lingo kind of things that you wouldn't think anybody outside Scotland would even be able to read or be able to understand, you know? The mind boggles with it, really. It doesn't make any sense. And that's why it can be very colorful and exciting kind of thing to be doing. Yeah.
[00:30:39] Matty: This has been so helpful. I think you've not only given people some great things to do, but I think just as importantly, you've given people some things they don't have to do, which I think will save them a lot of time. So please let listeners know where they can go to find out more about you, about ALLi, and about the services that ALLi offers.
[00:30:55] Orna: Yeah. So you'll find ALLi at AllianceIndependentAuthors.org. And we also run for the wider community the Self Publishing Advice Centres on that's SelfPublishingdvice.org. And there we have an almost daily blog and our weekly podcast and if you just Google "rights" there, you can find lots of other stuff. And the Copyright Bill of Rights, you'll find at AllianceIndependentAuthors.org/rights and what we're trying to do there was just lay down the bill of rights, really what copyright means, just trying to simplify it down to its purest elements so that indy authors in particular will know how to approach this important topic.
[00:31:44] Matty: Great. Thank you so much, Orna.
[00:31:45] Orna: Thank you, Matty.
Links
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