Category Archives: Issues

Internet Archive’s Open Libraries Project:
A Treasure Trove for Readers and Authors

Posted July 11, 2017

Photograph courtesy of the Internet Archive

In February of this year, the Internet Archive was chosen as one of eight semi-finalists in the MacArthur Foundation’s 100&Change grant competition, which will award the winner with $100 million to address an urgent problem of worldwide importance. The Internet Archive’s Open Libraries proposal is a bold and ambitious plan which would digitize over 4 million books and put them in the hands of readers around the world, many of whom face significant barriers to accessing knowledge. Making works available on this unprecedented scale would clearly be a tremendous benefit not only for students, scholars, researchers, and the general public—but also for authors.

As an organization dedicated to widespread access to information for the public good, many of our members have firsthand knowledge of the issues the Open Libraries project aims to solve. The Internet has made information and creative works available in ways unimaginable just a generation ago, but its potential in this regard is still largely unrealized. Authors face a host of technical, legal, and financial barriers that prevent them from sharing their works that are out of print, un-digitized, and/or subject to copyrights signed away long before the digital age. Rights reversion and terminations of transfers may be an option for some authors to regain rights (as the Authors Alliance collection of books in the Internet Archive can attest), but the fact remains that millions of books—especially those that have fallen out of print—are, for all intents and purposes, unavailable.

For many readers around the world, digitized books are not merely a more convenient means to access works—they may be the only way to do so. Even if a book happens to be available in a local library, there are many readers who are nonetheless unable to access it due to infirmity or a print disability. Readers in the developing world are hungry for knowledge, but their access to it is often severely limited. Online books may well be their only route to an education and its lifelong benefits. Many authors care deeply about making sure their works are available to these readers, and worry that gaps in digital availability prevent these readers from accessing their books.

Digital libraries also create new opportunities for authors from under-represented communities to reach readers. Communities of color, the disabled, students, seniors, the incarcerated, LGBTQI people, and religious minorities are just some of the voices that have historically been at the margins of mainstream publishing. By proactively identifying and including vast numbers of works that may be largely unavailable via traditional channels, the Internet Archive would dramatically increase the diversity of knowledge available online, and put it in the hands of those who would otherwise have limited or no access.

A new round of finalists for the 100&Change grant will be announced in September. We at Authors Alliance wish the Internet Archive success as the competition moves forward throughout this summer and fall!

Terminating Transfers: An Inalienable Right Under Threat

Posted July 6, 2017

Mike Wolfe headshot The following is a guest post by Mike Wolfe, Scholarly Communications Officer at UC Davis, and the former Executive Director of Authors Alliance.

Sometimes, being an author means making bad deals. Authors are routinely asked to sign away their rights for the life of copyright—which lasts 70 years after death in the U.S.—and the promise of publication, or an advance, or just being done leads them to say, “yes.”

Authors always have options when they come to regret these decisions, but in the U.S. they often hold a trump card: Termination of transfers. These legal provisions, when exercised properly, let authors walk away from their copyright transfers. The linchpin that makes the whole thing work, and the feature that makes these rights so powerful, is that termination rights can’t be signed away. They work “notwithstanding any agreement to the contrary.” At least, that’s what the law says in the United States.

But termination rights are such a powerful tool for authors that they are constantly under threat. Recently a very public series of high-profile (and star-studded) lawsuits has helped to bring this into focus. First, a troubling court decision in the United Kingdom late last year created the potential to undermine the U.S. termination rights of authors worldwide, and more recently a lawsuit initiated by Sir Paul McCartney in the U.S. stepped in with the goal of protecting them.

Duran Duran, the British pop group behind “Hungry Like the Wolf” and “Rio,” wrote their top hits while under contract to assign the copyrights—a contract signed as teenagers at the very beginning of their careers. Decades later, on the hunt after valuable royalties, the band exercised their U.S. termination rights in order to regain copyright and benefit from the success they realized “across the Rio Grande” from Mexico. It’s hard to imagine that, at the time, they had any inkling of being sued in the United Kingdom for breach of contract.

But the contract Duran Duran signed was with a British company, and was subject to British law. With Duran Duran’s terminations processing in the United States, the rightsholder brought Duran Duran into court in the U.K. for violating this agreement. In a highly questionable decision, the British court hearing the matter found that Duran Duran’s proper exercise of their rights under U.S. law was nevertheless a breach of their contractual commitments. (The band was granted leave to appeal the decision in February.)

While this one decision isn’t the last word on whether British law will ultimately respect U.S. termination rights, it does set a dangerous precedent. As high-profile terminations become more common, others will try to challenge them in local courts not just in the U.K., but all around the world. And the U.K. is a particularly important leader, given its large international role in many cultural fields, and particularly in international publishing. Authors from around the world, including authors in the U.S., publish with presses based in the U.K., signing agreements subject to U.K. law.

Enter Sir Paul McCartney, who has his own set of British music publishing contracts that might have been turned against his terminations of transfers. (McCartney would have been eligible to exercise his termination rights in October 2018.) Far from letting it be, I’ve got a feeling that McCartney drove his car down to the courthouse eight days a week, dead set on fixing that hole. His recent lawsuit against Sony/ATV, filed in the United States, sought a confirmation that he may exercise his termination rights without breaching his contracts. Late last week, however, the case settled under undisclosed terms, leaving the status of Sir Paul’s termination claims unclear.

The ramifications here are important. Notably, Duran Duran did not have expert evidence of how the U.S. termination rights override contracts to the contrary. If McCartney had gone to trial and won, he would have had more than just expert evidence; he would have had a judicial opinion in his favor. These cases might not be the last word on the subject, but pursuing termination of transfers is one way put a halt to the disturbing trend of chipping away at authors’ rights. U.S. copyright law gives all authors, regardless of nationality, a very powerful right and authors everywhere have a stake in seeing it preserved.

Authors Alliance and Creative Commons are finalizing rightsback.org, an online tool designed to assist authors in identifying their eligibility for termination of transfer rights. The tool is currently in beta, and we expect to officially launch rightsback.org this fall. We will keep our readers updated on progress. In the meantime, we encourage authors to test the tool—it’s a powerful way to learn more about termination rights.

Digitizing the MIT Press Backlist: A Q&A With Amy Brand

Posted June 27, 2017

Earlier this year, the MIT Press and Internet Archive announced a partnership to digitize books from the Press’ backlist and make them available online. We caught up with Amy Brand, Director of the Press, to ask about the collaboration and how publishers can help to make books openly available.

AUTHORS ALLIANCE: We’re thrilled to hear that MIT Press is making some of its backlist openly accessible. Can you tell us about the project?

AMY BRAND: Sure thing. We’re partnering with the Internet Archive, with funding support from Arcadia, to digitize hundreds of deep backlist MIT Press books where we have the rights to do so, and to enable open access where legal and practical as well. At a minimum, the digitized books will be available for free one-at-a-time lending through openlibrary.org and through libraries that participate in the broader OpenLibraries project, which is intended to enable libraries that own the physical books to lend digital copies to their patrons.

AuAll: What motivated MIT Press to undertake this project?

AB: When I started as Director of the MIT Press a couple of years ago, one of my top ambitions was to make sure that everything we’ve published and have the rights to digitize be made accessible, searchable, and discoverable, now and in perpetuity. When I connected with Brewster Kahle at the Internet Archive, we realized that partnering to achieve this made great sense for both parties. Brewster is looking to bring as many print-only books online as possible, and working directly with publishers is a key part of his strategy. For the MIT Press, the relationship means we get back digital files for our own use. That’s a significant cost savings, considering we were planning to digitize all these works on our own. In addition to making older works newly available and to growing our open access program, I also see this effort as one way to get out in front of widespread circulation of unauthorized digital files for these works.

AuAll: What can you tell us about the collection that will be included? Are there any titles or authors you are particularly excited to see newly available to readers?

AB: We’re just at the start of this effort, targeting older and out of print books, reaching out to authors and their estates to make them aware of the project and to give them the opportunity to opt out (so far, no one has). There are so many gems on the list, but one that jumped out at me was a 1973 re-issue of a 19th-century work by Frederick Law Olmsted that tells the story of his plans for New York City’s Central Park. If you search online for this book today, you’ll find it sells for about $500 in the used book market.

AuAll: What were the biggest hurdles to realizing this project, and how did you overcome these obstacles?

AB: It took us several months to agree on contractual terms that both the Press and the Internet Archive felt comfortable with. In particular, the Press wanted an agreement that allowed us to designate some works in the program as completely open access and others for lending only, and that’s where we landed. I hope that this negotiation process and resulting agreement will serve as a model for other publishers who grasp the many benefits of this opportunity.

AuAll: Do you have any words of wisdom for other publishers who want to follow MIT Press’ example?

AB: We’re all in the knowledge dissemination business, so take every opportunity make the content in your authors’ books, past and present, available and useful. What I also sometimes point out to other university presses is that there is so much unauthorized copying and sharing of our publications that we’re fooling ourselves to think that we can lock them down. Our business models need to take that into consideration. Even for new books, digital open access plus paid print can be the right model for certain academic authors. And, where feasible, we can take the wind out of the pirate sails by putting into circulation files that the publisher authorizes and that include explicit information about the authors’ intended use of the content.

For more information about regaining rights to previously published work, and about open access publishing, please see the Authors Alliance Resources page. We will continue to follow the MIT Press project and provide updates on books as they become newly available online.

Amy Brand was named Director of the MIT Press in July 2015. Previously, she served as VP Academic and Research Relations and VP North America at Digital Science. Brand serves on the DuraSpace Board of Directors, the Board on Research Data and Information of the National Academies of Science, Engineering and Medicine, and, was a founding member of the ORCID Board, and regularly advises on key community initiatives in digital scholarship. She holds a B.A. in linguistics from Barnard College and a PhD in cognitive science from MIT.

DMCA Takedown Notices: Know Your Rights

Posted June 22, 2017

photo by Alex Rodríguez Santibáñez | CC0

Last week, the American Psychological Association (APA) issued Digital Millennium Copyright Act (DMCA) takedown notices targeting APA articles on 80 university websites in an attempt to restrict unauthorized use of submissions to APA journals. In some cases, this resulted in the removal of academic authors’ articles from personal websites and university repositories. In response to the outcry from authors, the APA altered its pilot program to focus on removing articles from piracy sites rather than also targeting individual authors. APA also reiterated that authors may post their pre-print submissions (not the final version as published by an APA journal), as per their publication agreements with the APA.

This is not the first time that a journal publisher has targeted academic articles on university websites with DMCA takedown notices. In 2013, Elsevier, publisher of nearly 2,000 research journals, began sending takedown notices to individual researchers and universities targeting articles posted on university-hosted pages. Like the APA, Elsevier distinguished between authors posting the final versions of articles from those posting earlier versions.

Although these publishers may have acted within their rights to send these takedown notices, for authors looking to share work broadly, it is hard to imagine a situation more frustrating than not being being able to share their own works. In the face of the possibility that DMCA takedown notices targeting institutional repositories may increase, what can authors do?

Review the terms of your publishing agreement: Many journal publishing agreements allow for journal authors to self-archive pre-print versions of their articles on personal websites, university repositories, and author networking sites (sometimes with an embargo period). Check the terms of your agreement to see whether this is permitted, and, if so, replace your article with an allowed version.

Review your institution’s open access policy: If your institution has an open access policy, it may allow you to deposit a copy of your work in your institutional repository without infringing on your publisher’s rights. If in doubt, check with your institution’s Copyright or Scholarly Communications Office.

Retain the rights you need to make future works available in the ways you want: When presented with a publishing contract, review the terms of the contract and don’t be shy about negotiating for terms that allow you to share your work on personal websites, university repositories, and author networking sites. For more information on how to negotiate with your publisher to allow you to share your work, see Chapter 6 of our guide to Understanding Open Access. You can also review journal publishers’ standard policies regarding self-archiving on the SHERPA/RoMEO database and opt to submit your work to journals that give you more control of your work.

Reach out to your institution’s Copyright or Scholarly Communications Office: Copyright and scholarly communications staff can help you understand what rights you retained in your publication agreement, whether any version of your work can be posted online, and whether a copy can be uploaded to your institution’s repository. They can also help you understand your publishing contract before you sign.

For more information, check out our FAQ on copyright, which outlines some of the ways that authors can manage their copyrights in innovative ways, including with regard to academic journals. And our guide to Understanding Open Access provides even more detail about OA publication strategies.

“A Good Guy Offering a Good Product at a Fair Price”:
Cory Doctorow on Fair Trade E-books, Publishing, Copyright, and the Optimism of Disaster

Posted May 9, 2017

portrait of Cory Doctorow by Jonathan Worth | CC BY-SA 2.0

As part of our mission to empower authors in the digital age, Authors Alliance encourages authors to embrace new strategies for publishing and ensuring the ongoing lifespan of their work, both in print and in digital formats. Best-selling novelist, blogger, and Authors Alliance founding member Cory Doctorow epitomizes this innovative spirit in myriad ways. We sat down recently with Cory for a wide-ranging talk about his newly-launched platform for selling fair trade ebooks, the pros and cons of traditional publishing, and his brand-new novel, Walkaway.

AUTHORS ALLIANCE: At the London Book Fair this past March, you announced your new model for selling fair trade ebooks, affectionately known as “Shut Up and Take My Money.” What was your inspiration for this new platform? How does it address some of the issues with traditional retailing?

CORY DOCTOROW: There are ongoing disputes among publishers and writers about the equitable way to share ebook royalties. I kept hearing from people in publishing that hell would freeze over before publishers would pay 50% instead of 25% for ebook royalties. Now, “never ever” is a long time, and things do change, but if this is a thing you want to feed your kids with, you shouldn’t hold your breath. I got started by retailing my own audiobooks on my website with a modest shopping cart program after I had been kicked out of the traditional audiobook market by refusing to agree to DRM [digital rights management, which controls users’ access to, and use of, copyrighted material]. When I sell my audiobooks directly on my website, I get paid twice: I get the retail cut, as well as the royalty from my publisher, which is pretty damn close to 50%. The same is true for the ebook fair trade model: if you sell an ebook on your website, the royalty plus your retail cut is close to 50%.

There is also the fact that, in the time since Creative Commons licenses were negotiated, publishers have entered into agreements with the large ebook retailers that allow for price matching. This is in part an artifact of anti-trust litigation, but it means that if someone somewhere offers the book at $0, it technically allows all of the other ebook stores to offer the book at $0 as well.

Thus far my publishers have been good about grandfathering in the CC-licensed books that I already had, but for the last couple of books I haven’t done CC licensing, in part because of the real fear that Amazon could set the price at $0 and there would be no recourse for my publishers—not even the recourse of not letting Amazon sell the book, because of deals ensuring that if Amazon sells one book of a publisher’s, they have to sell the whole catalog.

So I thought, “What can I do to accommodate the CC books and the non-CC books that will maximally benefit all the entities here, and play within the Realpolitik of these regulatory settlements?” And I came up with this fair trade ebooks idea.

LSU v Elsevier – Paying Twice (or More) for Scholarship?

Posted May 4, 2017

Post by David Hansen, Duke Libraries’ Director of Copyright of Scholarly Communication and a founding member of Authors Alliance. We are grateful for David’s permission to reprint his commentary on the recent LSU v. Elsevier lawsuit. This piece was originally posted to the Duke University Libraries’ Scholarly Communications blog.

When discussing the cost of library collection purchases, I sometimes try to make the point that universities are really paying for scholarly work twice–once by paying faculty salaries to research and write, and a second time when the library purchases those writings back from publishers.

After reading the complaint filed in the recent LSU v. Elsevier lawsuit, I wonder if we’re sometimes paying three or maybe four times. The lawsuit, apparently filed back in February but only just yesterday publicly reported, is based on a breach of contract claim. LSU alleges that Elsevier has shut off access to the LSU veterinary school even though Elsevier’s contract with LSU promises access to the whole LSU campus, and specifically includes access to the IP ranges representing the veterinary school.

LSU v. Elsevier

Krista Cox at ARL has written an excellent backgrounder on the lawsuit. Among the materials she links to is the complaint, which includes as Exhibit B this letter from LSU’s lawyers to Elsevier outlining LSU’s legal arguments.

The basics are that Elsevier had been selling LSU access to the same content through two different contracts – once through a contract with the library that covers the whole campus, and a second time through a contract specifically for the LSU veterinary school to provide access to just that unit. LSU, not wanting to pay twice for the same content, let the veterinary school contract expire. Veterinary school users then relied on access licensed by LSU Libraries, which was provided for under the main library contract with Elsevier that purported to cover the whole campus and that specifically identified IP ranges associated with the veterinary users. In response, Elsevier shut off access to the veterinary school IP ranges and insisted that LSU pay more for access for those users. After some failed negotiation, LSU filed the lawsuit.

In terms of legal issues, this looks like a straightforward breach of contract claim. In fact, I’m surprised that Elsevier’s lawyers let the dispute get to this point. Unless there is significant information not included in the complaint, I find it hard to put together a good defense. The contract is clear about access to the campus, including the IP range representing the veterinary school. It is also clear that the contract document was the “entire agreement” and not created on the condition that some other deal (e.g., the prior veterinary school-Elsevier contract) remain in place. There isn’t a lot of complicated legal analysis here—Elsevier promised to provide access, and now it is going back on that promise in an attempt to extract more money from LSU.

What this case means for the rest of us

It’s behavior like this that gives Elsevier a negative reputation among those who purchase content from the company. I don’t think many among us expect Elsevier to roll over in negotiations, but from what I can tell in this case the publisher, in my opinion, was unfair and coercive in its approach. It leveraged its significant market power to try to push LSU into purchasing access again that it has already paid for once before. Elsevier knows that no one else can provide access to all these titles, so what is LSU to do?

Beyond the aggressive negotiation tactics, what also worries me about this suit is the prospect that, like LSU, others of us work with schools, departments, projects, etc. that have been solicited by publishers such as Elsevier to purchase access that another entity on campus has already legitimately licensed for the whole university. In a large, decentralized organization like a major research university, there is bound to be some duplicative purchasing. If there are duplications and universities recognize and make corrections to eliminate them, will we too be subject to the same negotiation strategy? Would we be bound to continue paying twice? Would access for medical schools, veterinary schools, nursing schools, or law schools, be held hostage as well?

A Worrisome Harbinger of Changes in Copyright Law

Posted May 3, 2017

photo by Carol Highsmith | public domain

Pamela Samuelson, President, Authors Alliance

Note: This article was originally made available to subscribers of the Chronicle of Higher Education on April 23, 2017. The full text is reprinted below with permission.

With all the hoopla and dysfunction in the White House and Congress, you might think that the copyright bills pending before Congress do not need your attention. Think again. Momentum is building for three of these measures, and the impact of these bills on institutions of higher education will not be welcome.

The most likely to pass (and relatively soon) is H.R. 1695, The Register of Copyrights Selection and Accountability Act. It has bipartisan support from 32 House members, and the endorsement of 3 key members of the Senate Judiciary Committee. The bill calls for the Register of the U.S. Copyright Office (its CEO) to be a Presidential appointee for a 10-year term, subject to Senate confirmation. This bill has already been reported out of the House Judiciary Committee.

The Librarian of Congress has historically been the official who selected the Register of Copyrights. This made sense because the Copyright Office is a subdivision of the Library, and the Office supplies the Library with copies of registered works to add to its collection. The Register’s main job has been to ensure that the copyright registration system works well, so the general practice has been to promote someone with long experience in the Office to become Register. Because Librarian Carla Hayden has commenced a search to replace Maria Pallante, the Register who resigned (to avoid being demoted), Congress will have to move quickly on H.R. 1695, or Hayden may fill the position on her own—which would be good for universities.

H.R. 1695 finds support among industry insiders who are nervous that Hayden, who has made a career as a public librarian, would appoint as Pallante’s successor someone whose positions on copyright issues might be more closely aligned with the interests of libraries and the public than with interests of those who commercially exploit copyrights and who have long had considerable influence on the Office’s policy prescriptions.

The ostensible reason to elevate the Register as a Presidential appointee is the much greater significance of copyright in the U.S. and global economies today. As a Presidential appointee, the Register would be able to speak with greater authority in advising the President on key copyright policy matters, just as the Presidentially appointed Commissioner of the U.S. Patent and Trademark Office already does.

So why should universities worry about H.R. 1695?

If President Trump appoints the Register, this will further politicize copyright law. Until now, professional competence and deep knowledge of copyright and of the Office’s duties were the primary qualifications for the Register’s job. Since copyright industry groups will almost certainly have more influence with the President and members of Congress than universities do, H.R. 1695, if enacted, seems likely to favor copyright industry interests over university interests.

A second bill worth watching is H.R. 890, the Copyright Office for the Digital Economy Act. Like H.R. 1695, it calls for the Register to be a presidential appointee. It would, however, go farther by removing Copyright Office from the Library of Congress’ aegis and making it into an independent Congressional agency.

Even during Pallante’s tenure, tension existed between the Library and the Office over the level of financial support that the Library provided to enable the Office to upgrade its technology infrastructure. As an independent agency, the Office would be free from the Library’s control.

Under this law, the Office also would be free to make recommendations to Congress without any oversight, consultation, or review by other federal agencies. Universities may consequently lose opportunities they now have to appeal to executive agencies to influence the Office on policy matters.

Further down the road, but nevertheless building up steam, is a legislative proposal to create a small claims tribunal within the Copyright Office to adjudicate infringement claims valued at $30,000 or less. H.R. 5757, the Copyright Alternative in Small Claims Enforcement (CASE) Act of 2016 has not been re-introduced in the 115^th Congress. But Rep. Robert Goodlatte, Republican of Virginia, announced earlier this year that the small claims proposal was a key part of the copyright reform agenda he expects to pursue in this session of Congress.

One of the two key drivers of this bill is the desire of entertainment-industry companies to have a low-cost way to litigate claims against peer-to-peer file-sharers and other Internet users who “pirate” their works (including students at colleges and universities). The other main driver has been groups of photographers and graphic artists whose works are routinely infringed, often in online environments. The high cost of federal court litigation makes it infeasible for them to vindicate their rights.

If this legislation was carefully designed to give these copyright owners a low-cost way to get reasonable compensation for wrongs done to them, that would be one thing. But the bill has some problematic features, including the creation of two new sets of statutory damages.

One would benefit copyright owners who register copyright claims pre-infringement (as entertainment industry firms typically do). For these owners, a small claim could yield a tribunal award up to $15,000 per infringed work and up to $30,000 total. This is worrisomely high given that the challenged use need not have caused any harm to the copyright owner.

A second would be available to unregistered copyright owners. A small claim could yield up to $7500 per infringed work and up to $15,000 total per case, even if an infringement caused little or no actual harm.

The CASE Act also raises due process concerns. Although someone notified of a small claim can opt-out of the proceeding within 30 days, unrepresented recipients of claim letters may ignore them. Non-response will result in a default judgment, which the copyright owner can take to a federal court to get an order requiring payment.

Should universities be concerned about this? The short answer is yes. Cambridge University Press (CUP) may have had little success so far in the Georgia State electronic course reserve case, but suppose it learns that a professor has uploaded to a course website a chapter from a book published by CUP. CUP is unlikely to bring a federal lawsuit against the professor (or her university). But a small claim against her (or her institution) would be cost-effective and much faster. The Copyright Office tribunal might well be receptive to CUP’s claim. If one claim succeeds, CUP would have reason to bring others.

This is only one example of the many ways in which universities, faculty, and students might find themselves subject to new rounds of copyright claims. Copyright Office tribunals may not be as receptive to educational fair use defenses as federal courts.

These bills are a worrisome harbinger of what lies ahead for institutions of higher education on copyright policy issues. As with so many other issues currently facing this country, awareness and vigilance must be watchwords of the day.

Rights Reversion Success Story:
Tracee Lydia Garner

Posted April 19, 2017

Just in time for the second anniversary of our Guide to Understanding Rights Reversion, we’re pleased to feature Authors Alliance member Tracee Garner’s success story. Since gaining back the rights to two of her previously published novels, she’s resumed work on her Jameson Trilogy, due to be published next spring. We met with Tracee at the AWP conference in Washington, DC, earlier this year, and she generously shared her rights reversion experience with us in the following Q&A.

Novelist and Authors Alliance member Tracee Lydia Garner

AUTHORS ALLIANCE: What first motivated you to get the rights back to your previously published novels?

TRACEE LYDIA GARNER: I hadn’t really thought of reversion until I heard other authors asking how to go about it. Then I went to a conference in 2015, and a young woman came up to me and asked me if I would ever write Jojo’s story [the continuation of a character featured in her previous books.] I admit that at first, I was annoyed—not so much at her, but more at myself, because I hadn’t finished with him, and I secretly did want to!

Then I had to look at how I could make it happen. If I was going to write Jojo’s story, I wanted to fold it in with my earlier books, update the covers and content, and release them as a new set, since any marketer will tell you that sets do very well. But in that case, I had to ensure that I could get the rights to those earlier books back. And then I had to get new ISBNs and do a bit of reload and relaunch to make it all work. All of that was the catalyst for formally requesting my rights.

AuAll: How did you go about requesting a rights reversion?

TLG: First, I researched online about writing a reversion letter to my publisher. Then I had to dig out my almost twenty-year-old contract and figure out whom to contact. (When you have one of the largest publishers in the world, with offices in NYC and Canada, it seems like real investigative journalism!) Contracts are very intimidating, and you have no desire to revisit it at all. You resist (and our creative minds can even make it more difficult than it has to be).

Once I figured out the jargon, found a sample letter online, and tracked down the right contact people (or their replacements), I e-mailed my request to my publisher. Then I waited (a good little bit)! I think I re-sent the letter at least once, saying “Hey, over here.” It took months until I got the letter saying that I had, in fact, fulfilled my seven-year contractual obligations. Very official!

AuAll: So you were eligible to exercise a clause in your contract granting reversion rights?

TLG: Yes, my contract was for a term of seven years. After seven years had passed, they were my books in theory, but it’s never good to assume, so I made the request to ensure that I received appropriate documentation to that effect. With the influx of digital rights and an ability to make use of ebook versions and audio versions, it’s important to be certain you are cleared for these kinds of rights, too. Be sure there was no addendum to your contract that permitted your publishers to hold onto these rights, and only revert some of the parts back to you.

AuAll: Did you face any obstacles in getting your rights back? Is there anything you wish you’d known going into the process?

TLG: The hardest part was finding the words to use and finding the appropriate persons to contact. Reversion doesn’t seem commonplace, at least not yet. Who would’ve thought we could ask for our rights back, repackage, edit, slap on a new cover (after design headaches, of course!), add new ISBNs, relaunch…and voila! New audience, new eyes, new readers. But there is also something intimidating about rights being returned to you. Rights back? For what? What do I do with them?

I imagine that at least some writers might have thought that ABC Publishing Company would publish forever and we’d all be fortunate enough to collect royalties like the estate holders for Michael Jackson and Elvis and all the popular TV shows and radio artists—only to find out that no, it doesn’t work like that!

AuAll: What advice do you have for other authors who might want to pursue a reversion of rights?

TLG: Remember that someone has already been through every incident you could possibly think of. Even though we sometimes feel like we write alone in our little caves, there are people out there to help. And it is worth the effort!

AuAll: How has reversion helped you? What have you been able to do with your book since reversion?

TLG: I had written two books in a planned trilogy, but I never finished the series. So I will be editing and repackaging the two books that I have back. I am finishing the third installment now. Fixing the books is no small feat, but the excitement of having a new trilogy propels me toward completion. It’s very exciting that, thanks to reversion, your characters get a second life, as does your career overall.

Tracee Lydia Garner is a bestselling, award-winning author. Her sixth book, the romantic suspense novel Deadly Affections, was released in March 2017. Born and raised in a suburb of the Washington DC metro area, Tracee works in health and human services, and is a speaker and advocate for people with disabilities. Her forthcoming Jameson Trilogy—made possible thanks to rights reversion—is scheduled to debut next spring. Find Tracee on the web at www.Teegarner.com.

Authors, if Tracee’s success story has inspired you to consider reverting rights to your previously published work, you don’t have to start from scratch! We’ve already done much of the preliminary work for you. Visit the Authors Alliance Rights Reversion Portal, where you’ll find our complete Guide to Understanding Rights Reversion, as well as letter templates for use in contacting your publisher, plus a collection of reversion success stories.

If you value our work and are not yet a member of Authors Alliance, please consider joining today. Basic membership is free, and our members are the first to hear about our latest tools and resources.

Authors’ Rights Beyond Attribution and Integrity:
The Rights to Revive and Revise

Posted April 6, 2017

“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

The following article, by Authors Alliance co-founder Molly Shaffer Van Houweling, continues our series of posts on the topic of moral rights. Molly is Professor of Law and Associate Dean at UC Berkeley, and a faculty co-director of the Berkeley Center for Law and Technology. She also serves as Board Chair of Creative Commons.

The Copyright Office is considering whether U.S. Copyright law ought to recognize authorial attribution and integrity rights. Authors Alliance submitted comments in support of these rights—if they are carefully crafted and limited—but also proposes two other authorial rights: one to revive one’s work and the other to revise one’s work if the copyright is owned by another.

Here’s why:

Consider the plight of an author who has assigned her copyright to a publisher who is no longer printing the book or making it available online. Perhaps the publisher has lost interest because sales are low; but the author still maintains a strong interest in having her work available to readers. Authors Alliance member Paul Heald’s research suggests just how prevalent this problem is.

The only tool that U.S. copyright law currently provides to authors of works that are effectively locked up in a publishers’ vault is a right to terminate a copyright transfer 35 years later. In theory, authors could use the termination of transfer provision to revive works that have fallen out of print. In practice, the daunting intricacies of the scheme make it difficult for many authors to take advantage of their rights. These challenges are not insurmountable. Authors Alliance and Creative Commons are making efforts to help authors exercise their rights. But even if it works as smoothly as possible, the termination of transfer provision is an awkward solution for authors who want to revive their works. Most glaringly, termination does not take effect for decades after a work was created. In most cases this will be long after a book has gone out of print.

Now consider an author who has changed her mind, on the basis of new research, about an argument she made in a book to which a publisher owns the copyright. She wants to disseminate a revised edition but the publisher denies her permission to create a derivative work based upon the original. An author who is not the owner of copyright in her own work cannot insist, under U.S. law, on her right to revise that work beyond what is permitted by fair use. And, again, the termination right might not be a timely or practical solution.

The prospect of these dilemmas is one motivation for authors who are increasingly retaining and managing their own copyrights. Unfortunately, that movement comes too late for authors who have already assigned their copyrights to publishers. For some such authors, it may be possible to exercise a contractual right of reversion or renegotiate as described in the Authors Alliance Guide to Understanding Rights Reversion. But not every contract includes a reversion clause and not every publisher is willing to renegotiate—even assuming that the publisher is still the copyright owner and can be easily identified and located that purpose (not a safe assumption in light of the well-documented problem of orphan works).

Perhaps what these authors need—in addition to rights of attribution and integrity—are statutory rights to revive and revise their works. Although such rights are not separately identified as part of the authors’ rights tradition, there are some features of copyright laws of other nations that at least nod toward their importance. In a recent article in the Houston Law Review, I explain how the U.S. could borrow from and improve upon these approaches to prevent the dilemmas faced by authors for whom copyright stands as an obstacle to reaching readers with both their existing works and their new ideas.

For more in our series on moral rights, read on!

Pam Samuelson on “A Case for Recognizing Attribution and Integrity as Moral Rights”

Authors Alliance on “The Need for a Nuanced Approach to Attribution and Integrity Rights”

Our comments in response to the Copyright Office study on moral rights

“When Everything’s Made Up”: Authors Alliance
on the Free Press

Posted April 3, 2017

photo by PDPics | CC0

The following guest post was written by Thomas Leonard, University Librarian emeritus and Professor of Journalism emeritus at UC Berkeley, and a member of the Authors Alliance board of directors. Leonard is an expert in the history of American journalism; his books include The Power of the Press: The Birth of American Political Reporting and News For All: America’s Coming of Age With the Press

Some of the most damning lines about American media are gaining new currency these days:

“Nothing can now be believed which is seen in a newspaper,” President Thomas Jefferson said in 1807. Now, slightly revised, it is a Trump line.

“Whenever his liquor begun to work, he most always went for the government”—Huck Finn’s verdict on his father may be a fair statement about many of us, dazed by our new President’s administration.

It took some hard lessons before our Constitution’s glorious words about freedom of the press were understood as a libertarian sacrament in the early Republic. The John Adams administration managed the arrest of some two dozen critics under the Alien & Sedition Acts before the Constitutional principle of a free press took its modern shape, following the realization that this could happen to anyone not holding the reins of power.

Similarly, respect for the press was not robust at the creation of American government. This value developed through political struggle. The first U.S. copyright law of 1790 provided the privilege for books, maps and charts; just how authors of newspaper and magazine stories were to protect themselves was not addressed. The first Congresses did not report their own proceedings in any detail, let alone make it easy for journalists to hear what was going on. Rights for a free press and for the citizens who would need it were built over time, and with a variety of special interests doing much of the lifting.

Consistency and purity of motives have never been common features of our civil society, particularly in our history of a free press. Self-interest has been the anchor (perhaps a better one than idealism alone), and self-interest across the political spectrum is likely to deflect the harshest threats against the press today. Until recently, Donald Trump’s most noted attack on journalists was his statement in February, 2016 about how they could be brought to heel: “We’re going to open up those libel laws. So when the New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

Since taking office, the President has suffered from a case of libel nerves. Last week, he went after the New York Times with the tweet, “Change libel laws?” The question mark is significant. The Supreme Court’s New York Times v. Sullivan decision of 1964 famously protected journalists against libel actions. But it protects politicians as well when they say harsh things about other public figures. Politico reported last week that Trump is hearing that he might be sued. Office holders would surely become large contributors to law firms in an attempt to protect themselves from defamation suits (especially if they were tweeters who did not weigh every word about public figures they dislike).

“Whose Line Is It Anyway?” was a game show that many will remember fondly. It had comforting rules: “Everything’s made up and the points don’t matter.” This is amusing but wrong in every respect when applied to politics. Holding all political actors to the law, and reminding them what they have to lose in dreaming up punishments for critics, matters tremendously. The age-old dispute between people in power and a press that would bring them to account, requires all the wisdom we can summon. Authors Alliance, whose members share common values and diverse means of expression, must be ready to meet this challenge.