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All Rights

2013 February 23

[Note: this post is modified from a piece I wrote for the January/February 2013 Outdoor Writers of Canada newsletter, Inside Outdoors.]

My last post on Copyright After Bill C-11, about what writers should do while the courts sort out the mess the federal government has made of the Copyright Act, got some people stirred up. I received messages from several Outdoor Writers of Canada members with regard to specific publishing contracts people had been offered or indeed had signed. It was pretty sobering stuff. One contract was as brutal and bold as they come. It asked that the writer sign over his/her copyright and waive his moral rights in the piece under consideration. It then went on to state what the publisher could do with the manuscript, which was basically anything it wanted to do in the world—which was redundant, because by turning over your copyright and moral rights, you have turned over complete ownership to the publisher.

Of course, such a contract should be refused unless 1) the publisher is paying very well for the  piece, 2) you as a writer cannot see any hope of ever selling it elsewhere, and 3) you don’t mind your name being associated with opinions and viewpoints that are not necessarily yours. Now, to be fair (if you ever can be with someone trying to rob you) the draft contract did state that it could be “modified” through mutual signed agreement. So, I’m thinking this is the standard contract this particular publisher offers to writers in hope that the latter are naïve enough to accept such ludicrous conditions just to get published and see their names in print. More experienced writers would negotiate modifications and try to get a fairer deal. After all, contracts almost by definition are negotiable. However, if that were a contract offered to me, I would completely rewrite it based on contracts I have signed in the past that have at least tried to be fair.

Nowadays, with the publishing industry in disarray, publishers are trying to protect themselves against what might happen in the future. Although most don’t request the copyright, in many cases they might as well. One book contract I was offered a few years back didn’t ask for my copyright, but did ask for the right to publish my book in any format (print, digital; book, movie, game or my personal favorite: “any other format that might be developed in the future”), at any time, anywhere in the world. When I phoned them to negotiate a fairer agreement based on what this particular publisher could actually accomplish in North America, I was directed to a lawyer who told me the contract was not negotiable—i.e., take it or leave it. After a heated exchange, I told him to stuff his contract (this after I had been working with their editor for about six weeks) and continued to shop my manuscript. I learned later the publisher was in bankruptcy protection and lawyers were running the show. Needless to say, I was more than glad to have been out of that deal.

We freelance writers are under assault these days on many fronts. Protecting your copyright is a fundamental defence of your business and I urge all freelance writers to give serious consideration to all contracts offered. How important is it to you to get a piece published? What are you willing to give up? In other words, is what you gain worth the cost?

Moral Rights
One of the clauses in some of these odious contracts asks the writer to waive or “not exercise” his or her “moral rights” in a manuscript. Just what are your moral rights? As defined by Lesley Ellen Harris in Canadian Copyright Law (3rd edition, 2001), “Moral rights protect the personality or reputation of an author.” They are separate from copyright. In other words, you may assign your copyright to a publisher but you can never give up your moral rights. However, you can agree not to exercise them.

According to Harris, your moral rights can be broken down into three categories: 1) the right of paternity, 2) the right of integrity, and 3) the right of association.

Paternity rights include the right to claim authorship, to remain anonymous, and to use a pseudonym. A publisher must identify the author of a piece unless it has been agreed not do so, or to use a pseudonym or pen name.

Integrity rights protect the author from changes to his/her work that “prejudice the honor or reputation of the author.” In other words, any changes made by the publisher without the author’s permission that change the intent of the piece or describe an opinion not held by the author is a violation of the moral rights of the author.

Association rights protect the author from his or her work being associated with a “product, service, cause or institution” that is “prejudicial to the honor or reputation of the author.” If the publisher is going to use your piece to promote a cause or product which you do not endorse, that should be made clear to you before you sign a contract or write the piece.

As you can see, waiving your moral rights is not something you do lightly. So, when should you waive your moral rights in a work? In short, when it’s to your business advantage to do so. For example, I have done a lot of contract writing for governments: brochures, reports, manuals and web sites. In most of those cases, the contract I signed stated I was waiving my moral rights. Why? Because the bureaucrats with whom I was dealing wanted the ability to change my writing long after the contract was finished in case there was new information or indeed political considerations. Having been a bureaucrat who hired freelance writers, I fully understood this concern. As a freelance writer in this situation, you are writing as if you are the government. Your name does not appear on these published pieces, and you don’t want it to appear. As such, you should be paid well for this type of writing, and indeed governments tend to pay well for your research as well as your writing time. Such writing has indeed put food on my table and in several ways financed the other writing I do that doesn’t pay so well.

To summarize, if you are writing a piece that will be published with your byline on it, you should never give up your copyright or waive your moral rights. License certain rights to get the piece published but don’t sell the farm to buy a horse.

From → Copyright, The Biz

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