In the second part of a document called “What Publishers Do”, reproduced here with permission of the Legal Affairs Committee: Publishers’ Association of South Africa, the general functions of book publishers are discussed.
I hope you’ll also find this information useful, especially in a time when the role and relevance of traditional publishers is often drawn into question.
What do publishers do? A whole lot, actually.
General functions of publishers
Publishers carry the costs of having publishing agreements drafted and kept up to date, recognising the importance of having the agreement expound the legal, administrative and financial aspects of the working relationship clearly and unambiguously.
To encourage fair contract terms between publishers and authors, PASA and ANFASA (Academic and Non-Fiction Authors’ Association of South Africa) mandated their respective copyright committees to draft a document recording the standard terms for book publishing contracts. The ANFASA-PASA Agreement on Contract Terms (“APACT”) is aimed at fostering and upholding a constructive and cooperative relationship between authors and publishers.
As a framework for promoting cooperation between authors and publishers, as well as an understanding of contractual relationships between them, this document is not static, but subject to development and adaptation by ANFASA and PASA. This is in line with the evolving nature of the publishing industry itself. The first version of APACT was published in 2012, and an updated version was released in 2016. It is available as a free resource on the websites of both PASA and ANFASA and can be accessed here: http://www.publishsa.co.za/file/1472202535llj-apactdocument.pdf.
The publisher typically either commissions or receives manuscripts, trains/develops authors where necessary and guides the writing process, edits the manuscript, designs and prints them as books or alternative formats, and invests in advertising and promotion to generate maximum sales. The editorial and production processes entail substantial financial investment on the part of the publisher, which results in significant added value through editing, design and layout, indexing and proofreading. Publishers either employ editors, marketers and designers to develop the book, or they contract outside service providers – both at great cost to the publisher.
Experience and expertise during the origination process results in a more refined product which has a better chance of succeeding in the market place. Due attention to production details includes the assessment of the quality of paper, printing and binding in the case of a printed book, and in the case of an e-book, ensuring that digital files are clean and comply with the highest industry standards.
Sales, marketing and distribution
Publishers make a great effort to establish and maintain sales and distribution channels. This is true across the sectors. While educational publishers are dependent on state and provincial government departments for the majority of orders, they also distribute their products through a variety of other sales channels. Publishers keep a watch on demand for their products in order to manage their stocks and, in the case of hard copies, to decide on reprints to meet high demand.
Each sector in the publishing industry has its own markets and its own distinct customer bases. Importantly, publishers invest in distribution networks (both for physical stock and electronic products) and infrastructure that facilitates the accessibility of books and materials. Publishers continuously invest in new technologies and publishing media. This ensures that publishers maintain viability and competitiveness, which not only advances the best interests of the publishing industry, but also serves the authors whose work is published. Publishers understand that it is not possible for every student to buy every book they require. That is why educational publishers invest in options that aid in the development of low-cost editions, course-packs, adaptations and reprint titles, as well as supporting local and university libraries – all of which provides access to the best-in-class learning material at a fraction of the cost of an equivalent imported title.
Ensuring international exposure and recognition for authors is an important focus for publishers in the scholarly and trade publishing sectors. As it is tailored for the South African education market, the publishers in the educational, TVET and academic sectors have a more local focus. International dissemination is achieved through export, print-on-demand facilities, rights trade, or co-publishing partnerships. For trade publishers, participation in international book fairs and establishing a network of subagents in key territories plays an important role in selling foreign and translation rights to their books. Information on rights sales and the progress and reception in other formats and markets, forms part of the dialogue between the author and the publishing house about the dissemination of his or her work.
The copyright in the work includes subsidiary or secondary rights and uses. These are rights which allow further forms of exploitation of the work, which includes licensing the content of the book to other publishers for publication or production into other formats, languages, as well as adaptations. The publisher does not exploit these rights directly as a primary right, but will license or sell them to third parties if authorised by the author. The income received from the third party is then divided between the author and the publisher according to the royalty division agreed upon in the publishing agreement.
Subsidiary rights can be an important additional revenue stream for both the author and the publisher. Managing subsidiary rights is a service publishers provide to authors. It entails a hefty administrative load. Each permission request or licence requires negotiating a fee for use of the work, drafting and concluding a contract to regulate said use, invoicing the third party and following up on payment and distribution to authors as necessary. Publishers either employ full-time staff members to deal with these types of requests, or outsource rights management to freelance service providers.
Publishers go to great lengths to protect the intellectual property embodied in the works they publish, and to therefore protect the economic interests of themselves and of their authors. Many authors do not have access to the required resources to pursue copyright enforcement actions and rely on publishers to protect their economic interests through publisher membership of organisations such as the Southern African Federation Against Copyright Theft (“SAFACT”).
A problem academic, educational and TVET publishers face in selling their books is photocopying and resale of photocopied books. The industry has made attempts to stamp out this practice in co-operation with SAFACT. Incidents of piracy (both in print and digital book formats) continue to emerge, and publishers work closely with SAFACT to investigate and prosecute offenders.
Similarly, trade publishers rely on the services of SAFACT to deal with widespread incidents of digital piracy– where offenders remove metadata from e-books and distribute and sell those e-books without consent.
Depending on the circumstances, publishers also appoint legal counsel to address infringing conduct, at substantial cost to the publisher.
The publishing agreement stipulates when royalty statements will be provided and royalty payments remitted to the author. Statements may be sent twice yearly or annually calculated to the end of the publisher’s financial year. Royalty payments are usually made within 2-3 months of such dates.
Royalties payable include income generated from subsidiary rights, including DALRO distributions, as well as royalties on book sales. DALRO distributions occur six-monthly and income received from licences granted by DALRO is divided between author and publisher in line with the subsidiary rights clause in the publishing agreement. Should the royalties payable be below a certain amount (this ranges from R100 to R500), the royalties will be carried forward to the next payment period.
Publishers not paying royalties is a breach of contract on the part of the individual publisher, not the norm or general practice. Publishers go to considerable effort to ensure that authors’ personal and bank details are up to date in order for royalty payments to be remitted. They also generally maintain a high level of auditing and accountability in disclosure to authors of royalty income due to them. Authors are provided with detailed royalty statements which contains sales and stock data as well.
Reversion of rights
The publishing agreement sets out the procedure for reversion of rights to the author. Typically, the relevant clause would state that, if the book is out of stock, the author may request that the publisher reprint or publish a new edition. If the publisher fails to do so within an agreed timeframe, the rights revert to the author.