I am a struggling author. Don’t get me wrong, I don’t struggle to put the proverbial pen to paper. On the contrary, the words flow easily and in abundance. I fondly believe that I have a way with words – I receive complimentary comments. I have lots of stories to tell. I want to tell them. Why then, you ask, am I struggling? I will tell you.
I am an experienced attorney specializing in Intellectual Property Law, especially Copyright. I have written a textbook on the subject and have published literally hundreds of learned articles in legal journals. I hold a doctors degree in law (for which I wrote a dissertation) and I spent some years as a university professor. I am an accomplished and successful academic author. I am not without writing skills. So what’s the problem?
The simple answer is that I aspire to be an author of works of fiction for distribution in the popular market. It’s not going well. Ay, there’s the rub. Fortunately, I am not reliant on my output of fiction to earn a living. My day job takes care of that. Were it otherwise, I would be in dire penury.
Having retired from active legal practice and academia, I embarked on writing my first (of many?) novel. Inspired by John Grisham, whom I set as a role model, I wrote a story with a strong legal flavour. It is called The Summit Syndrome. Actually, it is basically a faction version of a truly astonishing and remarkable court case that I once handled (‘names and places have been changed’) with a lacing of sex and romance to add spice. It was eventually quite well received and enjoyed, favourable reviews like, “An absorbing and realistic portrayal of a riveting courtroom drama: once I started it I could not put it down” (an eminent former judge of the High Court), and “ Dean delivers the requisite thrills and surprises of fans of courtroom dramas – recommended” (US Review of Books). However, a lot of water was to flow under the bridge before that stage was reached.
Being a seasoned copyright lawyer, I knew all the tricks of the trade when it came to publishing. I was well versed in all the deals and their permutations that an author could offer to a publisher to clinch a publishing contract. My name (as a lawyer and academic) was also well known in the South African publishing industry. I thought I was reasonably well placed (far more so than the average first-time author) to achieve a publishing deal with a local publisher.
I knew that I could offer an outright assignment, or transfer of ownership, of my copyright in the work to the publisher. This assignment could have a lifetime of specified years, or for the full term of the copyright (my lifetime plus fifty years). I could seek remuneration in the form of an upfront, once-off, lump sum payment, or it could take the form of royalty on a percentage to be agreed, on sales, or a combination of the two. I had complete freedom to negotiate a mutually acceptable deal on whatever terms were appropriate. Even, if I was desperate enough, for no payment at all – getting out into the marketplace would be sufficient compensation.
As an alternative to granting an assignment of copyright, I could have offered a licence to the publisher on similar terms to those discussed above. In terms of a licence, I would retain the ownership of the copyright and simply grant the necessary exploitation permissions to the publisher. As a general proposition, an assignment of copyright is more attractive to a publisher, while a copyright licence is more attractive to the author. The point is that there are a vast array of possibilities and permutations available to the author and the publisher to craft a deal that is acceptable to both of them. Complete ’freedom of contract’ is the watchword. It even allows an author to grant publishing rights at no cost, if this is what it takes to gain publication.
Armed with my arsenal of knowledge and status, and touting the brainchild to which I had given birth, I enthusiastically and optimistically embarked on the project of negotiating a deal with a publisher. To cut a long story short, I knocked on the door of virtually every publisher in South Africa. Without exception, I never got beyond the door. I was told that their budget for publishing English language fiction was very limited, and my wonderful creation could not be accommodated.
Disappointed and disillusioned (all the pro bono assistance that I had given to the publishing industry over the years had counted for nothing), but unbowed and undaunted, I explored other options. As something of a last resort, I eventually reached an arrangement with one of many American publishers who offered assisted self-publishing packages. This entails their publishing, and marketing to a limited extent, your book in the normal way, but on condition that you make a sizeable contribution to the costs of the whole exercise. In other words, far from the publisher making a lump sum upfront payment to the author, the converse applies. This is a far cry from the ideal position, but when you get desperate, what can you do? For the rest, the more or less standard publishing conditions apply – you assign or licence your copyright for a specified period, and they pay you a royalty on sales (getting royalties paid out of America is another story). Even though you are largely paying for the publication yourself, these publishers are very rigid on the terms of the publishing arrangement (our way or no way!).
The bottom line is that publishing an English-language fiction work in South Africa is currently an extremely difficult proposition. The alternatives available to South African authors are not very attractive and are almost nil to the lesser financially endowed. This rather unhappy situation prevails at the present time, when the South African publishing industry is in a fairly healthy state.
Enter the Copyright Amendment Bill! If Government spin is to be believed it will provide the gateway to the promised land of milk and honey for authors. Alas, the reality is that the contrary is true – the gateway is rather to a nether region.
Apart from the fact that government will be decimating the publishing industry by virtue of its bounteous gift of the liberty to make unauthorised copies of works on a widespread and wanton scale, freedom of contract for authors in the publishing field will become a thing of the past. Authors will be constrained to enter into compulsory, rigid, prescribed arrangements with publishers.
Assignments of copyright will be limited to twenty-five years, like it or not. Payment of royalties indefinitely by a publisher will be compulsory, even though there may have been an assignment of copyright, and even after an assignment or licence has expired. No flexibility on these issues will be allowed.
Gone will be the days when authors would be able to adopt nuanced negotiating positions, with customized income arrangements (even granting rights at no cost), in order to craft an arrangement with a publisher to induce it to enter into a publishing agreement. It will be a case of one size fits all, with little choice by either the author or the publisher (or perhaps in reality, one size fits nobody). An author cannot even grant a royalty-free licence if he/she wants to do so.
Publishers will be obliged to pay royalties in all circumstances. These royalties must take the form of a share to profits. Royalties in this situation are generally based on a percentage of sales revenue. Save in the case of very successful books, this could operate to the detriment of authors, particularly first-time authors. Why would a publisher want to pay a lump sum initial payment (which may be greatly beneficial to an author in certain circumstances), when it is going to have to pay long-term royalties come what may? Why would a publisher pay a purchase price for an assignment of copyright when it will in any event give rise to an obligation to pay royalties to an author on an ongoing basis? What effect does this have on the monetary value of an assignment? The copyright in his/her work is probably the author’s greatest asset in this context. It will suffer serious devaluation if it is encumbered by an obligation to pay ongoing royalties.
I will give an example of this situation from my own experience. Some years ago I was approached by a publisher to write a non-fiction booklet, in the form of a so-called e-book, on my MBUBE/LION SLEEPS TONIGHT case. I agreed to do so but had misgivings as to the commercial viability of the project. I was offered a lump sum payment of R10 000 for giving assignment of the copyright. I was happy to agree to these terms. As it turned out, I doubt whether the book made any profit. Had I opted for a royalty of a percentage of profits, I may have earned nothing. Freedom of contract allowed the parties to negotiate an arrangement of choice. After the elapse of a few years, the publisher re-assigned copyright to me, having no further use for it. The whole arrangement was very satisfactory. It would not work under the proposed new dispensation, freedom of contract having been abrogated.
An assignment could have a term of in excess of, say, seventy-five years, but it would now be restricted to twenty-five years, a third of the period. On the assumption that a publisher would normally be prepared to pay 100 for seventy-five years, it may now only be prepared to pay 33. It may well suit authors to take 100 now, rather than only 33 in the hope that they might after twenty-five years get more than 33 for the next segment of twenty-five years (this is apparently the logic). An author might not even live long enough to get the benefit of the second segment! He/she would be denied the right to choose his/her own destiny.
Of course, under the present dispensation, if an author chooses of his/her own accord to limit an assignment to twenty-five years, it his/her good right to do so (assuming, of course, that a publisher is willing to agree to that). That is what freedom of contract entails. There is a world of difference between having the right to make such a limitation at one’s own discretion, and having it forced on one from above in all circumstances.
Depriving an author of his/her freedom of contract seriously impacts on his/her fundamental right to pursue his/her livelihood in the manner that he/she chooses.
I have explained how difficult it is for us as authors to achieve a publishing arrangement, particularly in respect of a first work. This is currently so under relatively liberal conditions. What will be our prospects of success under the new regime? I can tell you – nil. Based on my experience, even a publisher who operates a partially author-financed model of publishing would laugh at a deal proposed on these conditions. Authors will simply have their legs cut off at the knees in this scenario.
The Utopia (or perhaps rather cloud-cuckoo land) dreamed up by the government is dependent on the continued existence of publishers. This will be an optimistic hope in the circumstances that will obtain. Without publishers no publication of works can take place, unless the government is minded to someday create a state publisher, yet another SOE, which can incur publishing costs and pay out royalties ad infinitum with gay abandon out of taxpayers’ money and without the burden of having to generate revenue.
Although I am a struggling author, I am fortunate. In the gloom that will descend on creative careers, I can walk away from writing and concentrate my energies elsewhere or rest on my laurels. But, what about those who aspire to make a career out of writing? They have my innermost sympathies. Their prospects are grim. They would be better advised to rather become waiters in restaurants, where gratuities are generally dependable and are paid in accordance with performance and the norms that go with the territory. The outlook is far brighter!
