Conflation

Reading a lot of articles right now that are focused on publishing rights makes me reminisce about my own ignorance on the subject oh so many years ago when I was bright eyed about the concept of getting into print. These are not new concepts to me, but still, its amazing how little is really understood about copyright. We conflate the right to something with the right to it in various forms, and here in lys the rub, its not.

Copyright you think would hold some sway given the laws about intellectual property. When it comes to writing its hard to prove intellectual property for a number of reasons. 1. The author may write in the same style as others, 2. the concepts of the story may be shared or conceptually similar, 3. the rights were not really cemented at the time of production, 4. the authors have expired, or the estate is now in the commons, 4. the author may have been sold off in a buyout or merger.

“Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. In copyright law, there are a lot of different types of works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, and so much more!”

https://copyright.gov/what-is-copyright/

It’s difficult to sometimes find the lines of where ownership specifically begins, but the trend lately of hearing that authors suddenly do not receive royalties is not new. Sometimes the rights to ownership are grey.

 is important to know that we are all also copyright users. When we read books, watch movies, listen to music, or use videogames or software, we are using copyright-protected works. So, even if you are not the owner of a work, you still may be able to use it. In addition to buying or licensing works (or some other way of seeking permission to use the work), you can also use one of the Copyright Act’s exceptions and limitations, or rely on works in the public domain. The Copyright Act’s exceptions and limitations found in sections 107-122 include fair use, the “first sale doctrine,” some reproductions by libraries and archives, certain performances and displays, broadcast programming transmissions by cable and satellite, to name a few. Interested in more information on fair use? Take a look at our Fair Use Index. The complete list of exemptions to copyright protection can be found in chapter 1 of Title 17 of the United States Code. You can also use works that are in the public domain. Works in the public domain are those that are never protected by copyright (like facts or discoveries) or works whose term of protection has ended either because it expired or the owner did not satisfy a previously required formality. Currently, all pre-1926 U.S. works are in the public domain because copyright protection has expired for those works.

https://copyright.gov/what-is-copyright/

There is a slight opaqueness to the wording. The licence verus copyright is a bendable definition. This is how authors can in fact loose sudden royalty payments for things as the license to print may be bound without the authors strict control over the copyright. It might also allow in fact stipulate that royalties may susbend or end at various points of the contract. Example, royalties might be stipualted by volume sold so, once the author reached that minimum, the royalties cease but the property conctinues to be printed without any need for permission.

How is that possible you ask? Because the license to print can be so iron clad that it almost overides the authos rights to control production of a work.

It is common for authors to assign copyright in journal articles to the journal or publisher. Whereas, generally, when publishing a book, the author will grant the publisher a license. In signing a copyright transfer agreement, the author grants all their rights as author and copyright holder to the publisher. 

https://copyright.unimelb.edu.au/information/copyright-and-research/understanding-publishing-agreements

Although most publihsers have a flexible license status, its common for a transfer of copyright to occur even if its not worded as such. Even if this is not the case its important to keep track of what you signed and what rights you are agreeing to.

In cases where a publisher is bought out, there are supposed to be rules in place to deal with royalties and continuation of those payments, however, in some cases, the buyer could omit the royalty requirement and only take the ‘license’ requirement. It is common to have this happen.

None of this is fair of course, but its important to know what contracts actually say and what you can loose if you don’t understand them. When we opened TLS the first thing we did is to demystify the contract. We find that its too often the case that copyright is not as honored as license. Be careful to know the distinction and avoid conflation between copyright owner and license owner.

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