Recently, a topic came up in one of my many discussion forums about whether a writer should insist on using a non-disclosure agreement (NDA) when working with editors. It's not the first time that I've encountered the question.

I understand the rationale behind it, but I also feel that it comes from a place of fear and the lack of understanding of how copyright law works.

In today's post, I want to address this idea of using NDAs when working with editors, and I want to explain why I advise against them for fiction novelists.

The Purpose of the NDA

I will gladly admit that I've had to sign a few NDAs in the past.

My first NDA was when I was studying for my Masters degree. I was working with proprietary medical equipment. My next one was as a Post-Doctoral Research Fellow, when I was working for a team developing the world's first color-CT scanner. Again, it was proprietary equipment involved. And the last NDA I signed was as a consultant on a project for a new solar panel design. I can talk about what the projects were for, what the ultimate goals were, but I can't talk about the nitty-gritty of the design concepts. (In truth, I don't remember the nitty-gritty of the design concepts. The projects were that long ago.)

The sole purpose of those NDAs was to protect the intellectual property associated with the various research projects while they were being developed—and while they were in a state that they couldn't be protected by other means.

Each of those projects were ultimately going for patents. And for patents to be granted, the concepts need to be developed to such a point that they were viable equipment designs that would actually function for their designed purpose.

During the initial developmental phase, it is always a race between different research groups to see who can get the design that works first. Who can apply for the patent first? So, NDAs are involved to ensure that researchers don't talk to competing research groups before patents can be lodged. And there is always a juggling act that needs to be played with NDAs, because if researchers don't publish their work in the journals of their field, then they struggle to get the research grants.

But those NDAs are protecting the intellectual property while it can't be protected by other means.

So, if you are a novelist working with an editor, before you insist on an NDA, you need to ask yourself what it is you're trying to protect that isn't already protected by other means.

Your Novel is Already Protected by Copyright Law

With all the hype that exists around copyright registration in the USA, many newer writers don't understand that the moment their story is in a tangible format (and this includes being written into a digital file) that their work is protected under copyright law. And it's not just the story, but also the characters and settings that are protected. And yes, this is even the case in the USA.

The registration process in the USA only provides you with additional rights to compensation within the US court system. It is because of the complicated law structure in the USA that the certificates and registration process is required if you are going to sue someone for copyright infringement. But you don't need to register your copyright for your work to be protected—especially during the editorial process. Even in the USA without a registration certificate, you can stop others from plagiarizing your work as long as you can prove that the work being copied is yours.

And because of the way copyright law works, any edits that an editor does on a particular piece of work are also the intellectual property of the writer after contracts have been concluded. It comes under the category of "commissioned" work. And under copyright law in most countries, the person who commissioned the work is the one who owns the copyright.

Trained editors understand this. Anything that comes in for editing is the intellectual property of the writer. It's protected under copyright law. As such, no reputable editor would even contemplate the idea of "stealing" a client's work or sharing it with others without that client's permission.

So, when working with an editor, what would an NDA be attempting to protect that isn't already protected under copyright law?

You Can't Copyright an Idea

Under copyright law, ideas can't be copyrighted. It's only the execution of the idea that can be copyrighted.

So, there will be newer writers out there thinking that they will want to use an NDA to protect their ideas. But that is a fool's mission.

Ideas for stories come from anywhere, and it's so easy for writers to develop the same idea. There are only so many core stories out in the world. BUT, even if two writers managed to come up with the exact same idea (same premise, characters, setting, and plot structure), each writer would write a story that is vastly different to the story from the other writer, simply because they have different experiences and internal emotional workings.

Not only that, by the time the editor sees that manuscript, it's no longer just an idea; it's a fleshed story. The core story elements are already protected under copyright law.

So, I ask again, what would an NDA protect that isn't already protected under copyright law?

Do You TRUST Your Editor?

The concept of NDAs within fiction editing comes down to a question of trust. Do you trust the editor you are working with to keep your work confidential, giving you and your work the respect it deserves?

If the answer is no, then perhaps you should be looking for another editor rather than insisting on an NDA.

NDAs can sow a level of distrust that overshadows the working relationship. Even if it's a fruitful relationship on both sides, there are constraints involved (a result of the NDA clauses) that just aren't necessary.

In truth, if a writer came to me and insisted that I sign an NDA before even sending me a sample of their writing, it's an instant "no" from me, and I won't even consider working with them.

If you are really concerned about who an editor talks to about your work, have that conversation with them. Give your editors the same respect that they are giving you and your work.

AI Complicates Things

Okay… I need to address this particular nightmare right now. I know a lot of writers are scared that their work is potentially being added to the pool of AI-training resources. But this particular issue is not entirely controllable.

The AI-training clauses that are now being included into a variety of systems have thrown writers and editors a curve ball that we must now deal with. And because of these new AI-training clauses, any user of a computer or the internet can no longer guarantee that materials won't be used to train AI.

Just by using Google Drive (and the programs that come with it, like Google Docs, Google Sheets, and Google Slides), a writer is potentially agreeing to let Google use their content for training. Just by using Facebook (or Instagram, Messenger, or WhatsApp), a user is agreeing to let Meta use their content for training.

Microsoft and Apple now have similar clauses that are just as annoying and difficult to get around.

And there is the nightmare of trying to prove that the work was unlawfully included. There are court cases still waiting to be heard regarding this very topic, and the defense by the AI companies is stating that those copyrighted materials were included in the AI-training packet under the concept of fair use (something that is a US copyright law thing that doesn't exist in other countries, not in the same way). Until those court cases have been heard, we have no idea on which side the law will reside.

So, if the Big-5 publishers are fighting against basic copyright infringement on this matter, do you honestly think that an NDA could be of benefit here?

NDAs for Fiction are Pointless

For the newer fiction writer who insists on an NDA, all you are doing is highlighting that you don't understand copyright law. There will be some editors who will just sign the NDA because they know that it's not worth the paper that it's written on, but the damage to the trust is already done.

In addition, because of the AI-nightmare, signing an NDA opens editors up to a can of worms that many editors might not be comfortable to take on board, not now.

Editors who work primarily within academic editing often happily sign NDAs, but those projects tend to have pending patents involved. Fiction is not patentable.

There is only one use of an NDA that I can think of that might be of use for a fiction writer, and that's protecting a writer's real name if they are using a pseudonym. But that level of protection is only needed when it would be dangerous to the writer if their true identity ever came out.

So, before you rush off to insist that your editors sign an NDA, I want you to take a step back and ask yourself what it is that you are trying to protect that isn't already protected by other means. If you can pinpoint a specific thing that you are wanting to protect or keep private, then maybe… okay… I might be able to see the point. But for most fiction writers out there, it's just a piece of paper that only gets in the way of doing what needs to be done to turn that manuscript into a book.

If you use NDAs (or have signed an NDA), feel free to comment below as to what information was being protected by the NDA (without given away the details, of course) that wasn't protected by other means.