Such an agreement which is formed between a publisher and an author, constitutes to be a “Publishing Agreement”. Under such an agreement, important details such as distribution rights, duration of the agreement, dispute resolution mechanism etc are assessed and disclosed. Both the parties are entitled to fulfil their respective contractual obligations. If either of the parties fails to discharge their contractual responsibilities, Section-37 of Indian Contract Act, 1872 applies with the provision “Breach of Contract”.

A Publishing agreement or contract consists of certain rights and obligations for both the author and the publisher, without any failure. Such rights are:-

1. Copyright rights
2. Publishing rights
3. Digital Publishing rights
4. Distribution rights
5. Licensing rights
6. Subsidiary rights

Essential Ingredients of a Publishing Agreement

A publishing agreement is a legal contract between an author and a publisher. It clearly explains what each party must do and what rights each of them has. The following are the main parts of a publishing agreement:

1. Information of the Parties

The contract should include the names and particulars of both author and publisher. This identifies the parties that enter into the contract and confirms who is legally bound by the terms and conditions of the contract .

2. Publishing Rights Grant

The contract should specify exactly what rights the author is licensing to the publisher. These may include the rights to publish, print, reproduce, market, distribute and sell the manuscript: It should also say if the publisher is given exclusive rights, meaning that only that publisher can publish the work, or non-exclusive rights, meaning that the author can publish the work through other publishers as well.

3. Copyright Ownership

The agreement should clearly mention who will own the copyright in the work. In most publishing agreements, the author remains the copyright owner and only grants the publisher permission to publish the manuscript. However, in some cases, certain copyright rights may be assigned to the publisher for a specified period or purpose. Clearly defining copyright ownership helps avoid future disputes.

4. Delivery of the Manuscript

The agreement should specify when and how the author must submit the manuscript. It may include details about the submission date, the required format, and whether the manuscript should be complete and ready for publication.

Important Provisions of the Indian Contract Act, 1872

1. Section 10 – What Agreements are Contracts

A publishing agreement is enforceable only when it satisfies the essentials of a valid contract, namely, free consent, lawful consideration, lawful object and competent parties. Once these conditions are satisfied, the author and publisher are legally bound by its terms.

2. Section 37 – Performance of Contracts by Parties

This section is where the author and publisher perform their obligations under the agreement. If the publisher does not publish the manuscript within the time agreed, or if the author does not deliver the manuscript as promised, it may be a breach of contract.

3. Section 39. Effect of Refusal to Perform Promise

If a party fails to perform or makes it impossible to perform its contractual obligations, the other party may consider the contract terminated and seek appropriate legal remedies. This is particularly relevant where a publisher has not published the manuscript although they are contractually obliged to do so.

4. Section 55. Non-performance at a Fixed Time; Effect

Where a contract states that a particular obligation is to be performed within a particular period, the failure to perform within that period may give the aggrieved party the right to bring the contract to an end if it was the intention of the parties that time was of the essence. This provision shall apply directly where the publishing agreement specifies a deadline for publication.

5. Section 73 – Compensation for Loss or Damage Caused by Breach

Under this section the author may be entitled to claim compensation for financial or other foreseeable loss caused by the publisher’s failure to publish the manuscript.

6. Section 75 – Compensation to a Party Who Rescinds the Contract Properly

If the author terminates the publishing agreement lawfully due to the publisher’s breach, the author has the right to claim compensation for the losses caused by the breach.

Grounds for Termination of a Publishing Agreement

If the author or the publisher fails to comply with essential terms of the contract, the publishing agreement may be terminated. One of the most common reasons is the publisher’s failure to publish the manuscript in the stipulated period. If prompt publication is an essential term of the agreement, such delay may constitute a material breach of contract and entitle the author to terminate the agreement. Also the agreement may be terminated if the publisher does not pay royalties or if the author does not deliver the manuscript or otherwise violates the agreed terms. In some cases, the parties may also mutually agree to end the contract, or the agreement itself may contain a termination clause specifying the circumstances under which it can be brought to an end.

Legal Remedies Available

A publisher who does not release a manuscript within the agreed timeframe or when any party breaks the publishing contract allows the wronged party to pursue suitable legal actions. The nature of the remedy depends on the terms of the agreement.

1. Termination of the Publishing Agreement

The main remedy available is the termination of the publishing agreement. If the failure of the publisher to publish the manuscript within the stipulated period is a material breach of contract, the author has the right to terminate the agreement under the termination clause or provisions of the Indian Contract Act, 1872. Once validly terminated, the agreement typically discharges both parties from future contractual obligations, except for any rights and liabilities that survive.

2. Compensation for Breach of Contract

The aggrieved party can claim compensation for losses suffered due to the breach of contract under Sections 73 and 75 of the Indian Contract Act, 1872. The object of compensation is to put the injured party, so far as this can be done by money, in the position he would have occupied had the contract been performed.

An author can sue for damages for:

1. Direct financial losses arising directly from the non-performance of the publisher.
2. Loss of publishing opportunities, where the delay prevented publication with a different publisher.
3. Any other foreseeable loss arising naturally out of the breach.

However, compensation is generally awarded only for losses that are a direct and natural consequence of the breach and not for remote or speculative damages.

3. Reversion or Recovery of Publishing Rights

If the publishing agreement has been terminated for the reason that the publisher has failed to publish the manuscript, the author may apply for the reversion of the publishing rights granted under the agreement. This is the author’s chance to take back the manuscript and publish it with another publisher. The availability of this remedy will depend on the terms of the publishing agreement and the provisions of the Copyright Act, 1957, in particular when copyright has been assigned or licensed.

4. Specific Performance

In exceptional cases, the aggrieved party may seek specific performance under the Specific Relief Act, 1963. This remedy compels the defaulting party to perform his contractual obligations instead of merely paying damages. Courts, however, generally require specific performance only when monetary compensation is inadequate. Publishing agreements often deal with issues of personal skill and editorial discretion and commercial judgment. Courts may be reluctant to order a publisher to publish a manuscript. And so this is a remedy that is only available in limited circumstances.

5. Injunction

An injunction is a court order directing a party to do or refrain from doing a particular act. In publishing disputes, an injunction may be granted to:

1. Prevent the publisher from using or exploiting the manuscript after the agreement has been terminated.
2. Restrain unauthorized publication or distribution of the work.
3. Protect the author’s copyright or other contractual rights pending the resolution of the dispute.

Conclusion

A publishing contract is not only a business agreement, but also a legal contract that safeguards the rights of both the author and the publisher. The agreement stipulates the rights and obligations of the parties, and both parties are expected to perform their contractual obligations in good faith.

Where the publisher fails to publish the manuscript within the stipulated period and has no valid justification for such failure, it may amount to a material breach of the agreement, especially where timely publication was an essential term of the contract.In such circumstances, the author may be entitled to terminate the agreement and seek appropriate legal remedies including compensation for losses, recovery of publishing rights, injunctions or other relief as permitted by law. The rights and obligations of the parties are governed ultimately by the terms of the publishing agreement read with the provisions of the Indian Contract Act, 1872, the Copyright Act, 1957 and other applicable laws. A well drafted publishing agreement, with clear provisions on publication timelines, termination and dispute resolution, can go a long way in reducing the risk of disputes and ensuring that both authors and publishers are adequately protected.