We are pleased to share that, following campaigning by the ASA, the Australian Publishers Association (APA) has amended its Member Code of Conduct to include a provision which improves the recommended terms of publishing contracts for authors. This provision recommends to the APA’s publisher members that reversion clauses in publishing contracts are based on objective grounds. We are delighted that the APA was responsive to this issue, as we regard it significant to authors.

Read on to find out why this change is important for you.

What is rights reversion?

When you sign a contract with a publisher, you grant them an exclusive licence which gives them the rights to publish (and probably translate and adapt) your work. In simple terms, rights reversion is when the publishing agreement is terminated and those rights return to you, for you to use as you wish.

The point in time at which the rights can be reverted to you, and the publishing agreement terminates, is defined in the termination/reversion clause of your publishing contract.

Why would you want to terminate your publishing agreement and revert rights?

Publishing contracts can last for a long time but the commercial life of many books is quite short. It is common in Australia for publishers to take an exclusive licence for the legal term of copyright: life of the author plus 70 years. The scope of the licence is typically very broad, often encompassing all languages, all territories in the world, and all formats. 

If sales have dwindled to an extremely low level and the publisher is no longer interested in actively supporting a work, there are many reasons why an author might want to take their rights back. The author may wish to:

• • self-publish the work and breathe new life into it;

• • offer backlist titles to a new publisher;

• • ask an agent to find new markets for the work;

• • update and re-work the book in a way that doesn’t appeal to the publisher;

• • experiment with new platforms such as Wattpad.

The UK’s Authors’ Licensing and Collecting Society conducted research which found that 63% of authors who relied on a reversion clause went on to earn more money from that work.

Why is the change to the APA’s Code of Conduct important?

In Australia, traditionally publishing contracts specify that the contract can be terminated and rights reverted to the author once the work has been ‘out of print’ for a period of time and the publisher does not wish to reprint, or where the work is ‘not available in any edition’. However, since the advent of ebooks and print-on-demand technology, it’s possible that works never go out of print and are always available in at least one edition. This makes the ‘out of print’ clause outdated and unreasonable. Authors have long spoken to the ASA about their titles being caught by the ‘never-out-of-print ebook/POD loophole’, thwarting their ability to end publishing agreements and explore other options. 

Like many author organisations around the world, the ASA has long recommended to its members that we move beyond ‘out of print’ clauses. We encourage authors to negotiate for termination clauses that allow them to revert rights on clear objective grounds. For example: 

• • when sales have dropped below an agreed defined level, as shown on one or two consecutive royalty statements, or 

• • when royalties have dropped below an agreed defined level, as shown on one or two consecutive royalty statements.

In this way, the circumstances in which an author may terminate is very clear to both parties. 

Many Australian publishers have already recognised that the ‘out of print’ approach is obsolete and moved to include objective thresholds to trigger rights reversion in their publishing contracts. The update to the APA’s Code of Conduct demonstrates an expectation that all publishers move to clear and objective thresholds.

How do other countries approach reversion?

In many countries around the world, minimum requirements on reversion of rights are established by legislation, in order to improve the balance in the author-publisher relationship. For example, some European countries have ‘use it or lose it provisions’ enshrined in their laws, allowing the author to revoke the licence if the publisher is not exploiting the rights. Both the US and Canada have time-based reversion entitlements (35 years after grant in the US and 25 years after author’s death in Canada).

In this regard, Australia lags behind other countries, given that our author rights are governed entirely by contract. The case for better statutory protections for authors is made in Associate Professor Rebecca Giblin’s research: Are contracts enough? An empirical study of author rights in Australian publishing agreements published in the Melbourne University Law Review, which served as a catalyst for the ASA’s lobbying efforts with the APA.  Dr Rita Matulionyte also makes the case in Empowering Authors via Fairer Copyright Contract Law published in the UNSW Law Journal. 

In our submission to the Federal Inquiry into Creative and Cultural Industries last year, the ASA proposed that a small industry task force be charged with developing appropriate author protections to be built into the Copyright Act for the next round of copyright reforms, including on reversion. 

Against this backdrop, we warmly welcome this industry solution update termination clauses that were drafted in a print-only world.