Copyright is a complicated thing. Members of the HEMA community participate in an activity that is inextricably linked with material that may well be copyrighted in some fashion, and therefore it is helpful to understand what copyright is and how it works, so that we can talk about it intelligently and avoid falling into any awkward legal situations.
How do publishers gain the right to publish an author’s book?
Authors own the copyright for their work. When they enter into an arrangement with a publisher, it usually means that the author retains their copyright over the work and they explicitly grant the publisher the right and licence to publish and distribute the book.
This means that the publisher is allowed to publish it (no one else can do this, because they haven’t been given the right or licence to do so) and to sell it for income. In return, publishers usually provide significant help with preparing the work for publication, along with marketing and sales channels, and then they pay the author an agreed percentage of the profit from each sale (the “royalties”).
No other publishing house can publish and print copies of the work for sale. However, people who purchase books from the original publisher are usually allowed to re-sell the books, because they aren’t creating new copies, simply changing ownership of the existing physical items. This typically does not require permission from either the author or the publisher.
Since both the author and publisher only have income to gain when there are copies of the book ready to be sold, one problem that needs to be addressed is when the supply dries up and a book goes “out of print”.
What does out of print mean?
Traditionally, books are considered “out of print” when the publisher has no remaining stock of brand new copies and no intention of printing anymore. This usually leads to the situation where the only way to acquire a copy of the book is to buy a secondhand copy from someone, or to find a random unopened copy for sale in a bookshop somewhere.
Sometimes a book will be out of print only temporarily while the publisher plans a new print run. However, publishers tend not to let books that are still selling well go out of print in this fashion; the book may be out of stock until the next shipment of stock arrives, and that’s significantly more common, but letting the book go out of print while the publisher prepares a new print run (perhaps with a new edition) is somewhat less common.
A more modern understanding of the term, given our access to print on demand publishing, is that a book simply hasn’t sold enough copies over a period of time (usually a year or two), and is considered “out of print” (where “out of print” now often refers to a lack of demand for printing, rather than physically running out of printed copies).
When a book goes out of print, the publisher may (but not necessarily) return to the author the rights and licence for publishing and distributing the book, so that the author can try to publish it again somewhere else.
Who owns the copyright for these books?
The author still owns all the copyright to their work. What they gave to the publisher were the rights and licence to print and sell copies of the book, usually in exchange for a percentage of revenue from sales (their royalty).
Even if the book has gone out of print, the author (or their estate) still owns the copyright until their work legally enters the public domain.
Even if the book has gone out of print, the publisher may still have the sole right and licence to create copies of the work, meaning that no one else may receive permission from the author to also create copies of the work.
Can we make and distribute copies of these books?
No. We can sell our physical copy of it on the secondhand market, that is perfectly fine. But we may not make a new copy of it and distribute that. We cannot photograph, photocopy, or scan the the book and then distribute that digital copy to friends or club members.
What can we do about the out of print situation?
If a publisher retains the sole right to make new copies of a book (and the rights have not reverted back to the author), you can get in touch with the publisher and ask them if they have any plans to bring the title back into print, or if they would consider returning the right and licence to make and sell copies to the author so that the work can be republished by someone else.
You can get in touch with the author and ask them if they have any information about the book, and if they might be interested in trying to get the right and licence back from the publisher so that the book can be republished elsewhere.
As a longer-term strategy, you could support dedicated HEMA publishing houses such as Fallen Rook Publishing, Freelance Academy Press, or AGEA Editora, so that publishers within our community have more funds and more leverage to negotiate the republication of out of print titles with other companies.
What you cannot legally do is take it upon yourself to create a copy of an out of print book and then distribute that copy to other people.
It is a pain when publishers allow books to go out of print. Personally, I think it is short-sighted of publishers to let this happen, or to set up such potential situations by buying only short print runs without the intention of buying more at a later date. With all the advances in print on demand technology, I think there is little excuse to allow books to go out of print in the traditional sense of the term.
However, whatever the reasons for a work going out of print, it is still covered by the author’s copyright until the legal term of copyright expires. We simply have to live with that. If we want the book to come back into print, then we need to exert leverage upon either the publishers or the authors (or both), and show that the book could be in demand. Money talks, and so we need to be ready to buy the knowledge that we want to read.
Thanks and disclaimer
I would like to thank Brian Puckett for his input on this from the United States perspective, and for general proofreading and suggested edits. The article is much stronger for his input!
I am not a lawyer specialising in copyright legislation (and neither is Brian), and this article should not be considered formal legal advice. Instead, this article covers certain general legal information that is not necessarily applicable to any specific legal matter. It is intended to be an introduction to the ideas of copyright and how they may apply to the community – no more than that.
Keith Farrell teaches HEMA professionally, often at international events (why not hire me to teach at your event?), and has an interest in coaching instructors to become better teachers. I teach regularly at Liverpool HEMA, and help behind the scenes with running HEMA in Glasgow at the Vanguard Centre.