| Delivery, editing and obligations on publication | 7 |
DELIVERY: ACCEPTANCE OR REJECTION
DELIVERY
The emotional trauma and sheer physical effort of delivering a completed copyright work has often been likened to childbirth (usually by men). It is probably true that few authors – apart from the most experienced – realise quite what they are letting themselves in for when they sign their publishing contracts; first-time authors in particular may underestimate what is required (although a good agent or editor should spot this). In addition, even the best-organised authors may be overtaken by unexpected events, especially if they have any kind of family or social life and a full-time job to hold down too. As a result:
• the work may be delivered late; or
• bits of it – or the whole thing – may not be of the standard expected.
A good publishing contract will foresee both these eventualities and make provision for them (see Chapter 5).
Non-delivery or late delivery
Time will not be regarded as being of the essence unless the contract expressly says that it is (it often does, for example, if the work is a contribution to a major reference project on a tight schedule, or linked into some external event such as a royal wedding). Where time is of the essence, non-delivery by the specified date will normally be an automatic ground for termination of the contract, although in many cases – particularly where the author is not to blame – a publisher may retain the option to keep the contract alive a while longer if there seems a reasonable prospect that the work will come in soon and there is in fact a little leeway in the schedule.
Where time is not stated to be of the essence, late delivery may still constitute adequate performance of the author’s contractual obligation to deliver (indeed, an author may deliver 20 years late and still perform the contract, if the publisher is prepared to wait that long). All other things being equal, two or three months either way would almost certainly be regarded as reasonably acceptable performance, and a publisher might find it difficult to terminate the contract on grounds of non-delivery alone if the author had a reasonable excuse for being late and was ready and willing to deliver in, say, three months time. Beyond that, however, it is probably advisable to confirm any revised schedule in a formal exchange of letters, varying the delivery terms of the original contract; otherwise, the author will be at increasing risk of termination for breach of contract, particularly where the publisher makes it clear (preferably in writing) that continued lateness will not be acceptable. It is important, however, to look at all the surrounding circumstances, and bear in mind any informal meetings or telephone conversations, or any previous dealings between the parties, as well as actual correspondence; a publisher may impliedly extend a delivery deadline by conduct as well as by a formal letter.
If and when the work does finally come in, the publisher will want to check as soon as possible whether it conforms to the publishing contract – whether it is, in fact, the thing contracted for. Any specified formats and delivery requirements – increasingly now as e-mail attachments – should also be complied with. Under general contract law principles, there is probably only a limited window of opportunity here for the publisher either to reject the work on clear grounds as being unacceptable – not a sufficient performance of the contract by the author – or else expressly or impliedly accept it. Putting the work into production (or even editing, or marking up for house style) might well constitute implied acceptance, so that even if unacceptable defects were discovered later it might then be difficult for the publisher to reject the work as a whole. Accepting delivery of a work should therefore not merely be a process of passive collection, but should involve at some point a positive inspection and approval of what is delivered. For most works, the person to do this will be the commissioning publisher or in-house editor: for major works the approval of a general editor or section editor may be required. Whoever it is should be aware of the contractual significance of what they are doing – once a work is substantially accepted, then the publisher is to all intents and purposes probably stuck with it (apart from defects which may later come to light, such as libel).
As to what is or is not ‘acceptable’, this will be entirely governed by the publishing contract, whether written or informal. Where no written contract exists, or where the contract does not refer to any specification or acceptance criteria (it is surprising how many do not) then any reasonably competent work of approximately the right length in the subject area concerned would probably be sufficient to perform the contract. Most good publishing contracts, however, contain at least some acceptance criteria, ranging from a full detailed specification set out in an appendix – probably the clearest method – to generalised phrases such as ‘of a standard which might reasonably be expected’ or sometimes just the single, and wonderfully simple, word ‘acceptable’ (which, unless further defined, probably does not mean very much, but can give the publisher very wide discretion, particularly if ‘in the Publisher’s sole opinion’).
What happens if the work – or a substantial part of it – is not acceptable to the publisher? The general rule in law is that the contract will prevail; if the publisher has a wide discretion under the contract, or if what the author delivers cannot reasonably be regarded as fulfilling his or her obligations under the contract, then the publisher may well have the right to reject it and terminate the contract in accordance with any relevant termination provisions. An author commissioned to write a 300-page textbook who delivers instead a 50-page pamphlet (this has been known) is clearly not delivering the work contracted for. Similarly, an article or research study commissioned for inclusion in a post-graduate STM journal which turns out to have no references or footnotes and to be written at a much lower level would also be a fairly obvious candidate for rejection, provided that the requirement to write at postgraduate level had been clearly agreed. But what if the publisher simply does not like the work, or is disappointed by it?
If it complies with the contract, but just isn’t as good as hoped for, then the publisher will probably not have the right to reject the work for that reason alone, unless the contract gives the publisher virtually complete discretion. In most cases, the publisher’s only remedy will be to persuade the author to improve it (see below), and if that still does not produce the desired result, make the most of what was clearly a commissioning mistake.
Rejection, if it happens, should be in accordance with any procedures set out in the contract: the publisher may have the option either to reject at once, or to put the author on notice to make specified alterations or improvements to bring the work up to contract standard within a given timetable, and then to reject if this is not done. Where improvements are feasible, some contracts give the publisher a further option of commissioning a competent editor to make the necessary improvements and deduct the cost from the author’s royalties or other earnings in due course (this would be subject to the author’s moral rights, on which see further below).
Disputes
There are often disputes surrounding rejection of a work and termination of the contract may not always turn out to be as straightforward as the publisher might hope. Where the contract gives the publisher absolute discretion, and the work as delivered is obviously not in accordance with the contract terms, there should be little cause for dispute, but in other cases – particularly where alterations are involved – there may be considerable disagreement. If such disputes cannot be resolved amicably between the parties, many contracts provide arbitration clauses as a means of avoiding full-scale litigation. Arbitration clauses normally survive termination of the contract, but formal arbitration is not always any quicker or cheaper than pursuing a claim in the High Court (see Chapter 5). It is still, therefore, comparatively rare in publishing disputes. Although there is as yet no industry-wide arbitration scheme for publishing as a whole, the Publishers Association does offer a confidential informal disputes settlement procedure, which can be quicker and relatively inexpensive. However, this informal scheme depends on both parties agreeing a joint reference, and both submitting evidence – it cannot be triggered by a reference by one party alone. For more on this, see Chapter 5.
In the event of rejection and termination it is important to confirm:
• what happens to the rights granted under the contract; and
• what happens to any advances, or other payments made.
In most cases the author will quite reasonably want his or her rights back, and most contracts provide for all rights granted to revert under such circumstances so that the author can still exploit the work, even if this will now have to be elsewhere. If the author assigned full copyright to the publisher (or someone else) under the contract, this may have to be formally re-assigned; to be effective, this should be in writing, and signed by or on behalf of the current copyright owner (see Chapter 5).
Advances, though always a fertile area for dispute, are either a matter for the contract or entirely at the publisher’s discretion: where the publisher has paid an advance (or advances) the publisher will normally be entitled to ask for these to be repaid if the work is rejected unless they are clearly stated to be non-returnable.
SUMMARY CHECKLIST: DELIVERY
• Is time of the essence?
• Has the delivery schedule been revised (even impliedly)?
• Is the work delivered the work which was contracted for?
• Does it comply with any ‘acceptance’ criteria in the contract?
• Are there any grounds for rejection?
• Is there any rejection or disputes procedure?
• What happens to the rights and any advances?
Once a work is accepted, it may be sent straight off for production as it is (particularly if it comes in as a digital file) but in the great majority of cases the publisher will want to edit it first, often via an outside editor. This mysterious process frequently leads to disputes, and horror stories abound of uncontrolled, demented editors mutilating what were previously perfectly publishable works. In reality, of course, editing varies widely from publisher to publisher, some doing little more than marking up to conform with agreed house style, and others adopting a more interventionist role. From a legal point of view, the position is fairly clear: subject to any agreement to the contrary, a publisher who contracts to publish an author’s work is obliged to publish that work substantially as delivered by the author, and is not entitled to adapt (or ‘improve’) it without the author’s consent. This is particularly so in light of the author’s moral right of integrity and other moral rights in the UK under the 1988 Act. We will consider the implications of the right of integrity below.
As a general rule, authors will not be entitled in law to prevent editorial changes to which they have freely consented. Even their moral rights (see below) will not apply to anything done with their consent. Consent may be express (and set out, for example, in a contract) or implied – perhaps by conduct, or a previous course of dealing – but implied consent may be harder to prove. Most publishers will therefore seek the author’s express consent in advance to the level of editorial changes they think they might need to make by including a specific clause to that effect in the publishing agreement, or by sending a house style guide. What changes may or may not be permitted will therefore become a question of interpreting the relevant wording of the contract.
Contracts, as we saw in Chapter 5, vary widely but most publishing agreements try to give the publisher some leeway at least to make necessary and reasonable alterations in accordance with any agreed specifications, and the relevant house style. Where a detailed house style book is available this should ideally be made available to the author well before the time the contract is signed and expressly referred to in the contract itself: you cannot generally incorporate express terms into a contract which have not been disclosed and agreed by the time the contract is signed.
In addition, many contracts give the publisher the right to make alterations on the advice of its legal advisers, for example to remove passages which might be libellous or infringe someone else’s privacy, or which might otherwise be in breach of the author’s warranties (see Chapter 5). Libel is a particular risk (see Chapter 8) and it may be advisable to have any suspect passages read for libel by a lawyer who specialises in this kind of work and knows what to look for; many publishers retain lawyers to do regular libel reading for them, since a legal opinion may often be required at short notice.
Any alterations beyond the level clearly provided for in the contract, or otherwise agreed by the author, are highly dangerous, and where they cause damage to the author or his or her reputation may entitle the author to bring an action for breach of contract, infringement of moral rights, or – in severe cases – for defamation. Editors who feel an author’s work could be ‘improved’ should therefore keep any urge to rewrite it firmly under control.
NECESSARY CHANGES
A publisher might be entitled in an emergency to make last-minute deletions, or minor consequential amendments, in order to avoid publishing infringing or illegal material (such as defamatory matter) and the moral right of integrity in particular does not apply to anything done to avoid the commission of an offence or comply with a statutory duty. However, in the absence of a clear contractual right to make the changes concerned, changes the publisher considers ‘necessary’ may not always be entirely safe: if time allows, it is always advisable to consult the author, and ideally get the author to make the changes personally. Obtaining the author’s participation, or at least express agreement, will give the greatest possible protection against future claims by the author, for example, of breach of contract, or defamation. In addition, anything done with the author’s consent cannot infringe his or her moral rights.
An author’s consent to alterations may be implied in some circumstances – by the author’s conduct (in accepting previous changes, for example), or in some cases by the nature of the publication or the list itself: where an author submits a contribution to a periodical or a major work known to be edited to a certain standard, or submits a work to a series or list of titles with a distinctive house style of its own, then it is quite likely that he or she will be deemed to have consented to a reasonable level of editorial changes consistent with those standards or styles. Where the changes made go a significant way beyond what might reasonably be expected, however, an author may well have a cause of action, for example for breach of contract or infringement of moral rights (see below).
MORAL RIGHTS
As we saw in Chapter 4, authors have statutory moral rights in the UK. In the context of editorial alterations, the two moral rights most likely to be in issue are:
• the right of integrity – the right to object to derogatory treatment of the work; and
• the right to prevent false attribution – the right not to be wrongly described as the author of something in fact written by someone else.
The right of integrity
We considered this key moral right fully in Chapter 4; to recap briefly, section 80 of the 1988 Act gives the author of relevant copyright works (including both literary and artistic works) the right not to have those works subjected to ‘derogatory treatment’ – additions or deletions, alterations or adaptations which are so serious that they amount to distortion or mutilation of the work, or are otherwise prejudicial to the author’s honour or reputation. The right lasts for as long as the work remains in copyright. Infringement of the right is actionable by the author as a breach of statutory duty, and the author may be entitled not only to appropriate damages (although recently these have tended to be small) but also to the grant of an injunction.
The right is, however, hedged about with limitations and restrictions under the 1988 Act, and may not apply in every case (for example, not to many collective works). The limitations are set out in full in Chapter 4.
The right to prevent false attribution
Under section 84 of the 1988 Act, authors (indeed any persons) have the right not to have material written by others falsely attributed to them (see Chapter 4). Adding to the existing law of defamation, this statutory right is designed to protect authors’ reputations from harmful association with work which they did not write, and over which they had no control, but which the publisher may try to pass off as theirs. Since it is a right protecting personal reputations, rather than the integrity of copyright works themselves, it lasts not for the full period of copyright but only for 20 years after the person’s death. As with other moral rights, infringement of the right is actionable as a breach of statutory duty.
The right of paternity
Do not forget that the author is also likely to have a right of paternity – the right to be credited as the author in a clear and reasonably prominent way every time the work is published commercially. There are a number of exceptions to this right such as employee and collective works (for a full list, see Chapter 4) and at the time of writing the right also depends on being asserted by the author. Where it applies, many contracts therefore provide for an assertion of the right to appear in a prominent position – usually together with the UCC copyright notice (see Chapter 5). Most publishers will have no difficulty about crediting their authors prominently on the works themselves, but it is important to remember that this is now a statutory right. It is also equally likely to apply to authors of copyright material other than text, such as artists, illustrators and photographers – subject of course to the same exceptions.
SUMMARY CHECKLIST: EDITING
• Are alterations really necessary?
• Has the author consented to alterations (for example, in the contract)?
• Do author’s moral rights apply to this type of work, or does it fall under one of the exceptions?
• Has the author waived his or her moral rights?
• If not, can the author make any alterations personally, or at least be consulted?
• Is there any danger that the author’s moral right of integrity may be infringed?
• Might there be a risk of false attribution?
• Has the right of paternity been complied with, and if necessary has it been asserted?
Most published works contain extracts or quotations from other copyright works, and often reproductions of complete works such as illustrations, maps or photographs. If these works are still in copyright – older illustrations, for example, may by now be in the public domain – it will be an infringement of the owner’s copyright to reproduce any substantial part of those works without permission. A court may award the copyright owner damages or an account of profits, delivery up or destruction of infringing stock, and in appropriate cases an injunction preventing publication (see Chapter 10). It is therefore crucially important to check the copyright status of all such material as soon as possible and ensure that permission to reproduce it is obtained from the copyright owner well before the work goes into production – preferably before or soon after delivery. Most publishing contracts require the author to arrange (and sometimes pay) for all such permissions and indeed give a warranty and indemnity against any copyright infringement which may take place, but this of course does not help the author, and is not always sufficient to remove legal risk from the publisher, who is very likely to be joined as a co-defendant in any legal action. It will also not cover any copyright permissions necessary for material not included in the author’s work itself, for example, an illustration or photograph selected by the publisher for advertising. Editors should therefore check as soon as possible:
• whether permissions have already been obtained by the author (preferably in writing);
• if not, which existing copyright works have been reproduced, at least in substantial part (if the author does not have a reliable list, the editor should compile one);
• whether they are still in copyright, or have fallen into the public domain (for duration of copyright, see Chapter 2). As a general rule, a literary or artistic work is still likely to be in copyright if the author died less than 70 years ago;
• whether they may be copied without permission under the fair dealing provisions of the 1988 Act: for example, limited extracts reproduced for the purpose of quotation for criticism or review, and accompanied by a sufficient acknowledgement (see Chapter 3).
This may remove the risk of copyright infringement from a number of extracts, but in all other cases permission should be sought from the copyright owner straightaway.
Who should arrange (and pay for) permissions is a matter for the author and publisher to agree, if they have not already agreed it in the contract. For large-scale works, such as dictionaries and encyclopaedias, clearing permissions might be a major undertaking, so whoever does it needs to allow plenty of time. It is worth remembering the following points:
• Owning copyright means being able to prevent others from copying your work, so the copyright owner may say ‘no’. It is highly dangerous to send off a batch of e-mails and just assume that permission will be granted in due course – it may not be.
• The copyright owner may require a permissions fee, particularly if a print or transparency is supplied as well. Museums and galleries are raising increasing amounts of revenue from this source, even for works which are themselves long since out of copyright (since the authorised reproduction which is supplied is of course a new copyright work). These fees can mount up very quickly: it may therefore be necessary to reconsider some of the more expensive ones if production budgets are tight. Give yourself time to consider all this, and if necessary select something else.
• If permission is given, check that the licence covers all formats, languages and territories in which the work is likely to be exploited (if permission is only granted for the UK, for example, including that extract or illustration in a French edition, or an e-version downloadable in France, would not be licensed).
• Bear in mind that some permissions may only be given for one edition at a time – for example, of a dictionary. If subsequent editions are planned, these permissions will need to be renewed.
ORPHAN WORKS
What happens if you cannot find out who – if anyone – owns the copyright? In the case of extracts from a book, the obvious place to start is the publisher of the most recent published edition: even though copyright in the literary work may vest in the author, the publisher will normally have exclusive publishing rights and handle permissions requests. If, however, the publisher is no longer in business, and the author cannot be traced personally (for example, via the Society of Authors, Public Lending Right Registrar, or simply via the telephone directory) then until two sets of orphan works regulations in 2014 (see below) you would have had to accept the risk that, if the work was still in copyright, and no copyright exception such as fair dealing applied, publishing a substantial part of it without express permission may well have been infringing someone’s copyright.
In 2014, however, UK law changed to allow reasonable uses of ‘orphan works’ (defined as literary or other works which are still in copyright, but whose copyright owners or rightsholders cannot be found – even after diligent search – in order to grant permission to reproduce them, or substantial parts of them). If you can produce evidence of a reasonably diligent search, there are now two possible solutions to the orphan works problem: (1) non-commercial uses by certain cultural institutions (such as libraries or educational institutions) may now be permitted under the EU Orphan Works Directive 2012; or (2) seven-year non-exclusive licences for either commercial or non-commercial use may be obtained from the UK Intellectual Property Office on payment of a licence fee. Full details of both these options are set out in Chapter 3.
Although it is a solidly established trade practice that publishers will supply the author with proofs of the work for correction before it is sent for press, there is no general legal obligation on them to do this, and in some cases there may simply not be time. However, most publishing contracts provide for proofs, which therefore gives the author a contractual entitlement to see and approve them, on the terms set out in the contract. These normally provide for proofs to be returned within a reasonably prompt schedule – 14 or 21 days is common. In many cases the publisher will retain the right to pass the proofs for press if the author does not return them on time, or cannot check them personally or arrange for someone else to (or simply cannot be contacted). Most contracts also make it clear that the supply of proofs is an opportunity to correct errors, not an open invitation to revise and rewrite sections over which the author may have had second thoughts (and which can be expensive). It is therefore common for an upper limit to be set on any author’s corrections: 10 or 15 per cent of the cost of origination is fairly standard (although what the cost of ‘origination’ actually is where the author has supplied digital files of the work might need to be separately agreed: 10 per cent of the cost of editorial revisions alone might not pay for very many corrections). Whatever the percentage, it is important to consider when signing the contract whether this is appropriate for the work concerned – in the case of a scientific, technical or professional text, for example, unforeseen new standards or legislation, or new research findings, may make corrections at proof stage essential if the work is not to be seriously inaccurate and misleading, and the contract should allow sufficient flexibility for this.
If an index is necessary, the contract should say so, and specify whether the author is to do this or whether it is the publisher’s responsibility (and who pays).
Most other aspects of design, production, promotion and marketing are normally reserved to the publisher’s sole discretion, and most publishing contracts reflect this. The price at which the work is sold, and the discounts and other terms of trade which would apply, are also normally entirely under the publisher’s control. However, some agents’ contracts provide for the author to be consulted on subjective matters of taste and style, such as design or the jacket.
PRINTERS AND PUBLISHERS’ DETAILS
The Newspapers, Printers and Reading Rooms Repeal Act 1869 (not everyone’s bedtime reading) repealed much obsolete legislation, but specifically preserved key sections of one 1799 Act of George III and one early Act of Victoria. Under these preserved provisions (which seem at the time of writing still to be in force) the current legal obligation to print printers’ and publishers’ details seems to include the following obligations:
Under the 1799 Act of George III (section 29) it seems still to be a legal requirement in the UK for anyone who prints commercially ‘any paper’ (probably including a book):
• to ‘carefully preserve and keep’ at least one copy for at least six months, and
• to write or print on it ‘in fair and legible characters’ the name and address of the person commissioning the printing (who would normally be the publisher), subject to a fine on summary conviction for failure to do so. Although the strict legal obligation seems to extend only to at least one copy, common sense would probably suggest including the publisher’s name and address on every copy or edition, as most publishers in fact usually do, for obvious commercial reasons.
Printing the printer’s name
In addition, under the 1839/40 Act of Victoria (section 2) subject to a similar penalty, printers of ‘any paper or book whatsoever’ intended to be ‘published or dispersed’ (or ‘anyone who shall assist’ in publishing or dispersing them) are required to print their own name and address on the first page (or on the front, if a single sheet only).
It is unclear how far, if at all, these requirements apply to publications made available exclusively in digital or downloadable form, but although no recent (or, indeed, any) prosecutions have been known, it is probably wise to bear them in mind.
The requirement does not extend to Parliamentary papers, or to things published by public or local authorities, or to banknotes, and there are simplified requirements for the Oxford and Cambridge presses. The obligation was also further relaxed by the Printers’ Imprint Act 1961, in order to exclude printed matter consisting only of:
• a greeting, invitation, ‘or other message in a conventional form’; or
• a picture representing only a geometrical, floral or other design or a registered trademark (or any combination of these).
Most countries have a legal deposit requirement of some kind, requiring deposit with the national library (or libraries) of one or more copies of most significant publications published in that country. In the UK, the requirement goes back at least 400 years, and is generally regarded as a necessary contribution to the national heritage, for the use of scholars, researchers and other authorised library users. Under the 1911 Copyright Act, publishers and distributors are still today legally obliged to supply to the British Library one copy of each publication issued or distributed to the public in the UK within one month of publishing it. This covers all publications, except that some categories need only be deposited on specific request by the British Library – these include trade advertisements, local railway timetables, calendars and appointment diaries, educational posters and examination papers. All other publications (except newspapers) should be sent to the Legal Deposit Office at the British Library in Boston Spa, West Yorkshire (the full address is set out in Appendix B).
In addition, five other legal deposit libraries are entitled to receive copies (but only on request). These are:
• the Bodleian Library, Oxford;
• the University Library, Cambridge;
• the National Library, Scotland;
• the National Library of Wales; and
• the Library of Trinity College Dublin.
These copies, if requested, should be sent to the Agency for the Legal Deposit Libraries, 161 Causewayside, Edinburgh, EH9 1PH.
Compliance with these requirements was relatively straightforward for most publishers and deposit librarians, but under the Legal Deposit Libraries (Non-Print Publications) Regulations 2013 (made under the Legal Deposit Libraries Act 2003) the UK legal deposit obligation was extended to electronic publications as well. The 2013 Regulations cover all ‘non-print’ publications which are either offline or online (including e-books, e-journals and website content, both free access material and commercial material requiring login codes from the publisher). All online works need to be requested by the deposit libraries (including the British Library), but at the time of writing most online material is being harvested via automated web harvesting, following one month’s notice to the publisher concerned for access via appropriate login details. Publishers are not required to deposit more than once, so that works already deposited in hard copy form will not need to be deposited again in e-format, but experience so far suggests that many publishers prefer to deposit in e-form.
Access to deposited e-files in deposit libraries under the Regulations is restricted to single terminals on library premises at a time, and rigorous security arrangement for storage and management of files, plus any necessary embargo arrangements, are under regular review by the standing Joint Committee on Legal Deposit (JCLD), representing both publishers and deposit librarians, with regular liaison with the Department of Culture, Media and Sport.
Legal Deposit of e-publications is also under regular review and discussion at European level, so far largely on a voluntary, best practice, basis. The standing Committee of European National Librarians (CENL) and the Federation of European Publishers (FEP) meet as a joint (FEP/CENL) committee twice a year, to maintain an advisory Statement on (Statutory and Voluntary) Deposit schemes for Non-Print Publications (latest edition 2012), offering European best practice on current issues, including e-deposit and e-harvesting, preservation and security, metadata and Open Access, and text and data mining.