Last updated May 20, 2014.
- What does the U.S. Constitution say about the relationship between authors and copyrights?
- How has the constitutional authorization of exclusive rights for authors been exercised by Congress?
- Do authors always own copyrights in the works they have created?
- Under what circumstances will a work be considered a work made for hire?
- Apart from works made for hire, do authors always own their copyrights?
- So what do authors give up when they give up their copyrights?
- What complications might arise when an author is no longer the owner of copyright in a work she created?
- How can these problems be resolved?
- How can authors manage their copyrights to avoid these problems in the future?
- What will Authors Alliance do to help authors carefully manage their copyrights?
- Where can I learn more?
What does the U.S. Constitution say about the relationship between authors and copyrights?
The importance of authorship to the spread of knowledge is recognized in the U.S. Constitution, which authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This language is the basis for both copyright and patent law in the United States. Patent law deals with inventors whose discoveries represent progress in the “useful Arts.” Copyright law deals with authors whose writings represent progress in “science,” by which the founders meant knowledge and learning.
This constitutional language recognizes the contributions that authors make to knowledge and it also specifies a particular mechanism by which those contributions may be encouraged: by securing to authors exclusive rights to their writings for limited times.
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How has the constitutional authorization of exclusive rights for authors been exercised by Congress?
Beginning with the Copyright Act of 1790, Congress has exercised this authority and followed these constitutional instructions by granting copyrights initially to authors. In this regard U.S. law followed the lead of England’s Statute of Anne, which in 1709 ushered in the modern copyright era by replacing a system of publishers’ rights (granted to the guild of publishers known as the Stationers’ Company) with a system of authors’ rights.
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Do authors always own copyrights in the works they have created?
No. The constitutional and congressional bestowal of rights on authors does not mean that all authors own copyrights to the works they have created. In fact, they often do not. Under some circumstances, the individual people one might refer to as the “authors” of copyrightable works are not considered authors as a legal matter at all. Instead, under the “work made for hire” doctrine, their employers (or sometimes a commissioning party outside of the employment context) are deemed to be the authors and therefore the initial copyright owners.
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Under what circumstances will a work be considered a work made for hire?
There are two circumstances in which a work is deemed a work made for hire: (1) if it was prepared by an employee in the scope of his or employment, or (2) if it was specially commissioned, subject to a signed agreement specifying that it be considered a work made for hire, and falls within one of nine types of works named in the statute as eligible for this treatment. The complete definition is provided in section 101 of the Copyright Act and discussed in a short Copyright Office circular.
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Apart from works made for hire, do authors always own their copyrights
No. Where the work made for hire doctrine does not apply, authors may start out as copyright owners but give or sell their copyrights to others. Indeed, the practice of authors transferring their copyrights to publishers has been commonplace since the Statute of Anne first granted copyrights to authors. Authors might sell their copyrights to publishers for a lump sum, or for royalties based on how many books the publisher sells, or a combination of the two. In today’s academic publishing environment, for example, authors frequently transfer their copyrights to journal publishers for free—realizing their rewards in terms of publication in a prestigious outlet as opposed to direct monetary gain. What publishers get in exchange is the ability to control when and how many copies are published, at what prices those copies are offered in the market, under what circumstances new editions are produced, and more.
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So what do authors give up when they give up their copyrights?
Although the practice of authors transferring their copyrights to publishers is longstanding, the vagaries of copyright law and the difficultly of assessing the value of copyrighted works make it difficult for authors to anticipate the implications of signing away their copyrights—implications that can be quite dramatic. Recall that the constitutional language refers to an “exclusive right.” This means that the rights that the law bestows allow copyright owners to object when anyone else does the things that the law reserves exclusively to them. Under current law, those exclusive rights include reproducing the copyrighted work, displaying it publicly, performing it publicly, distributing copies of it to the public, and preparing new works based upon it (which the Copyright Act calls “derivative works”). So if an author transfers her copyright in its entirety to a publisher (or grants the publisher an “exclusive license”) only the publisher may do or authorize others to do these things. Even the author herself may no longer do them without the publisher’s permission (unless her actions fall within one of the exceptions built into copyright law).
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What complications might arise when an author is no longer the owner of copyright in a work she created?
The limitations on what an author can do with her work once she is no longer the copyright owner may have seemed inconsequential to many authors in earlier eras. After all, few authors were in a position to reproduce and distribute their works themselves. But of course that is no longer the case in the digital era. And so authors are increasingly frustrated to realize that although the Internet gives them the technological ability to disseminate their works to readers around the world, their publishing contracts deny them the legal right to do so. For example, publishers including Elsevier and the American Society for Civil Engineers have objected to scholars posting copyrights of journal articles on their campus websites.
Copyright owners may even object to an author who wants to revise her own previous work. Depending upon the degree of similarity, the revision may count as preparation of a “derivative work,” which is within the copyright owner’s exclusive rights. Again, this legal layer of publisher control may not have mattered so much when authors relied on publishers to disseminate their new editions (and when copyright terms were short enough that it was possible for a publisher’s copyright to expire during the author’s lifetime). But today many authors might want to revise and distribute their own works but find themselves without the rights they need to do so (and no hope that they will outlive the copyright, which now lasts for the life of the author plus 70 years).
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How can these problems be resolved?
There are several ways for authors facing these dilemmas to try to resolve them (and to avoid them in the future). Some publishing agreements grant exclusive rights to publishers only for some media (hard copy but not digital, for example), and/or only for limited periods of time. Under these agreements authors retain the right to publish in other formats and/or after the period of publisher exclusivity has expired. Other publishing agreements assign ownership of the author’s copyright to a publisher but reserve to the author the right to reclaim the copyright if the work goes out of print (often referred to as a “reversion” or “out-of-print” clause). The circumstances under which this reclaiming is possible vary depending on the exact terms of the agreement. In particular, agreements differ in how they define “out of print” (whether, for example, a book that is available only as an e-book or via a print-on-demand service can be considered in print regardless of whether any copies are actually being sold). When the events that trigger the reversion of rights to the author do occur, the author typically has to take some action to exercise those rights (e.g., providing notice to the publisher of her intention to exercise her rights and then giving the publisher some time to respond).
Even when an author has transferred her copyright to a publisher in all formats and for all time, without reserving any reversion right, she may be able to reclaim her copyright under the “termination of transfer” provisions of the Copyright Act. These provisions allow certain copyright agreements made by authors during their lives to be terminated 35 years later. (For agreements made prior to 1978, agreements made by authors’ specified heirs are also subject to termination.) Although this statutory termination right exists regardless of whether it is mentioned in the transfer agreement (and, indeed, notwithstanding any contractual language that purports to negate it), it is subject to important exceptions and many complications. The key exceptions are for works made for hire, mentioned above, and for agreements authorizing the preparation of derivative works (which can be terminated so as to revoke the right to prepare new derivative works, but not to limit the use of derivative works already prepared under the terms of the original agreement). The complications have to do with timing, eligibility, and notice. The termination of transfer right can only take effect during a narrow five-year window of time (starting in most cases 35 years after the initial agreement or publication). It can only be exercised by the author or, if the author has died, by the author’s surviving widow/widower and children, and/or (if some or all of this class of heirs has died) by grandchildren or other survivors specified in the statute. To trigger the right, a majority of those eligible to exercise it must give notice at least two (but no more than ten) years in advance of the termination date. The Copyright Office has promulgated rules specifying the exact information that must be included in a termination notice.
By exercising contractual reversion rights or statutory termination of transfer rights, some authors who have transferred away their copyrights can regain control over their existing works and decide how to disseminate those works in the digital age. But many publishing contracts do not include reversion rights, and the statutory termination of transfer rights may come decades too late for authors who would like to use their own work in new ways today. It may yet be possible for such authors to renegotiate with copyright owners in order to regain control over their works. They may also be able to rely on the multi-factored fair use exception to copyright if what they want to do is use limited portions of their previous work for teaching purposes or to revisit the same ideas in a new work.
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How can authors manage their copyrights to avoid these problems in the future?
For authors writing books and articles today, a wide variety of publishing models are emerging that do not follow the pattern of outright assignment of copyright to publishers. Instead, authors are increasingly retaining their copyrights and managing them in innovative ways. For example, many authors who publish in academic journals retain their copyrights and grant the journals rights that are entirely non-exclusive, rights that are exclusive only for a limited period of time (e.g., 6 months), or exclusive rights that pertain only to the publisher’s final formatted version and not to the author’s “pre-print” version. By choosing not to transfer all exclusive rights for all time, authors retain some rights to reproduce, distribute, and revise their own works. They also retain rights to allow other people to do these things. So, for example, many faculty members authorize their universities to distribute their journal articles to the public digitally via institutional repositories. At several universities (including Harvard, M.I.T., Duke, Princeton, the University of Kansas, and the University of California), the faculties have committed to permit this type of open distribution of journal articles by default. Some of these university repositories—and many individual authors—use Creative Commons copyright licenses to invite anyone to reproduce and distribute articles so long as proper attribution is included. This is one way for authors who want foremost be read and known by readers to use copyright to expand instead of limiting their audiences. In order to retain the rights necessary to distribute their work in these ways, many authors attach addenda that modify the standard agreements offered by journal publishers.
Authors of books are also retaining their copyrights and managing them in new ways. Some are allowing publishers to print and sell hard copy books that are also available for free download under Creative Commons licenses. Examples include recent books published by W.W. Norton, Yale University Press, Doubleday, Random House, Basic Books, Penguin, Tor Books, O’Reilly Media, the University of Michigan Press, and MIT Press.
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What will Authors Alliance do to help authors carefully manage their copyrights?
The Authors Alliance is dedicated to promoting authorship for the public good by supporting authors who write to be read. One way we aim to do that is by helping authors understand and manage the legal rights necessary to make their works publicly available and reusable. To that end, this introduction to issues of authorship and ownership will be followed by additional analyses of the options available to authors who want to be read and practical tools to help authors regain, retain, and manage their rights to disseminate their writings to the public. We will also add to the collection of resources referenced below.
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Where can I learn more?
General information about copyright ownership for authors
Works made for hire
The Termination of Transfer provisions of the Copyright Act
Understanding common terms in publishing agreements
Learning about specific publishers’ copyright policies
Using addenda to modify standard publication agreement terms
Open access book publication
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