Literary rights, publishing rights, subsidiary rights: the three words the trade uses interchangeably, and what it costs

Somewhere this morning a rights manager has two contracts open for the same author and the word audio in both of them. In one it sits in the grant the publisher took at the outset. In the other it sits in a list of rights the publisher may sublicense onward, with the revenue split. The word is identical. What was sold is not. Nobody made a mistake, and the only way to know which is which is to read the clause rather than the label.

Literary rights, publishing rights and subsidiary rights are three different things, and the difference is the one sitting in those two contracts. WIPO’s toolkit for authors and publishers draws the line plainly: volume rights are the ones the publisher exploits directly, “as opposed to subsidiary or secondary rights”, which the publisher takes “not necessarily to produce themselves, but with the intention of sublicensing these rights on to others, sharing revenue with the author”. They nest, and the boundary between them is drawn by a contract rather than by a definition, which is why the label at the top of a spreadsheet column can never settle it.

Start at the top. Literary rights are everything that vests in the author when the work is created, and the shape of them is not a matter of trade custom. Cornell University Library, setting out author rights, lists the exclusive rights the copyright owner holds: to reproduce the work, to prepare derivative works based upon it, to distribute copies, to perform it publicly, to display it publicly. Those rights are held individually and as a group, which is why the guide can say that an owner who contracts with somebody else “can give away one, some, none, or all of their rights”. The whole bundle is the author's until some of it is licensed away.

Publishing rights are the part that gets licensed. The World Intellectual Property Organization's toolkit on publishing contracts puts the grant of rights at the centre of the agreement, describing it as the grant of publishing rights to the publisher, also known as primary or volume rights. These are the rights to print, produce and distribute copies of the book in key formats, and the toolkit is specific about what defines them: they are granted, in its words, “in accordance with certain parameters of exclusivity or non-exclusivity, language, territory and term”. Four parameters, and a publishing right is the intersection of them rather than a category anybody belongs to.

Subsidiary rights sit underneath. In the toolkit's account the publisher acquires certain ancillary rights “not necessarily to produce themselves, but with the intention of sublicensing these rights on to others, sharing revenue with the author”. Translation, audio, serial, book club, film and television, merchandising: these are the rights that get sold on. And this is where the trade's own shorthand does the most damage, because subsidiary rights are routinely spoken of as though they were foreign rights. Translation is a subsidiary right. So is film. A sentence that offers foreign, translation and subsidiary rights as three separate things is naming a category and two of its members.

So far this reads like taxonomy, and taxonomy is easy to shrug at. Here is the part that is not. The boundary moves. The same toolkit records that whether audio rights should count as volume rights rather than sitting in the subsidiary list is, in its words, “a currently much-contested question in some markets”, with publishers pressing to include them in every agreement and authors and agents often holding them back for separate sale. The category a right belongs to is being renegotiated, deal by deal, market by market, while the vocabulary stays the same.

English law offers no rescue, because it never promised one. Copyright is a property right that can be bought, sold, inherited or otherwise transferred, wholly or in part, and an owner may license others to use a work while keeping ownership. The terms of a licence, as the Pinsent Masons guide to the basics puts it, “should deal with issues such as exclusivity, assignability, the length of the term and the scope of the licence”. Scope is a thing the parties write down. It is not a thing the phrase carries with it.

How wide can a phrase be? The Kernochan Center at Columbia publishes a sample literary author contract in which the author grants rights “throughout the world in any and all languages for the full term of the copyright”, alongside a definition of electronic publication rights that runs through internet, magnetic, optical, digital and, memorably, other machine readable forms not yet invented. Another contract can use the same two words, electronic rights, and mean an ebook edition in one language for seven years. Both are correct. They are nothing like each other.

This is why the question a rights desk is asked most often is harder than it sounds. Is this free? Not is it listed as sold, but is the specific thing somebody is asking for inside the scope of something already granted. German audio when the grant was world English print. A serial extract when the licence covers volume rights only. An option that expired last March, on a clause nobody has looked at since the deal closed. Every one of those answers lives in the parameters, and none of them lives in the label.

There is a second cost, and it arrives later. A grant is not permanent, and the toolkit is direct about why: whatever rights are granted, there should be a time limit on the publisher exercising them, and if a format is not produced in the stipulated time the rights should revert to the author “rather than lying fallow”. Reversion is the mechanism that turns a dormant licence back into something sellable. It only works if somebody can see which specific right has gone quiet, in which language and territory, and against which commitment. A record that says audio rights: licensed cannot raise that question, because the thing that expired was never written down as a separate object.

The practical rule follows, and it is the only real conclusion here: hold the scope, not the label. A record that stores audio rights: sold has stored a heading. A record that stores the territory, the language, the format, the term, the exclusivity and the counterparty has stored the licence, and it can answer the question in seconds without anybody opening a filing cabinet. The category name is useful for a rights guide and useless for a decision.

It also explains why the vocabulary drifts in the first place. The trade press blurs the three terms because in conversation the blur is harmless, and the contract is always there to settle it. The blur stops being harmless the moment the words become the data. A grid built on labels inherits every ambiguity the labels carry, and it inherits them silently, which is the expensive kind.

So the next time a colleague asks whether the subsidiary rights in a title are still available, the useful answer is another question: which right, in which language, in which territory, until when, and exclusive to whom. It sounds pedantic on a Monday morning. It is the difference between a catalogue you can sell from and a catalogue you have to go and check.