Category Archives: Managing Authors’ Rights

Spotlight on Book Publication Contracts: Providing Input on Cover Design and Pricing

Posted February 19, 2019

In our Spotlight on Book Publication Contracts series, we are shining the light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Book Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

We’ve highlighted contract terms that help authors meet open access goals and featured ways authors can shape their publication contracts to retain some control over their rights. In this installment of our Spotlight on Publication Contracts, we’re sharing ways you can shape your contract to give you a say in how your work will be presented to the world.

Contracts typically include clauses that allocate the decision-making authority for important parts of the publishing process—from the timing of publication to the title of the work. Your publisher will likely approach these decisions with an eye towards maximizing profit, which may well align with your interests. But you may also have a stake in these decisions because they can influence how you and your work are perceived by potential readers. In this post, we cover ways you can have a say in your book’s cover design and the price of your book.

Cover Design

While a publisher’s choices about the cover design for your book will likely reflect its best judgment on what will help the book sell. But sometimes, you may have strong preferences and want to include in your contract a right of approval over any cover design decisions.

Success Story: When Authors Alliance member Janice Rhoshalle Littlejohn negotiated the contract for her book Swirling: How to Date, Mate, and Relate; Mixing Race, Culture, and Creed, she encountered a provision that would allow her to pick a book cover out of three options. Because she knew that her book’s theme would be challenging to portray artistically, she crossed out this provision and added in language giving her final say over the book’s cover. Her publisher accepted this change. Later, when her publisher sent Janice three unappealing book covers to choose from, Janice proposed that a graphic designer she knew should design the cover instead. Her publisher initially balked, but when she pointed out that she had final approval rights her publisher relented and gave Janice the cover she wanted.

As an alternative, you could consider including a contract term giving you the right to be consulted as the cover design is contemplated. The publisher will still have the final say, but it will at least be obligated to consider your ideas in the process.

Pricing

Pricing is usually central to your publisher’s marketing strategy. Your publisher will likely select a price for your book based on historical sales figures, prices of comparable books, cost of production, and other factors. But pricing is an important consideration for some authors. For example, some authors of academic books want to make their works available at a price that is affordable to students.

If it is important to you that your book is sold at a specific price, you can ask your publisher to share its anticipated production expenses and sales projections for your book so you can better understand its pricing strategy. If you understand what factors are driving your publisher’s pricing decision, you could negotiate for specific changes—such as agreeing to a lesser page count or using fewer illustrations—that will help keep the price low.

Success Story: When Pamela Samuelson negotiated the contract for her forthcoming book, making it available at an affordable price in both hardcover and paperback editions was one of her key concerns. Therefore, before negotiating she looked at the price of other books on similar subject matter issued by the publisher. Professor Samuelson singled out those books that had a price within her acceptable range and whose page count and format were comparable to hers, and then told her publisher she wanted her work to be priced like those books. To sweeten the deal, she offered to forgo an advance on royalties, which would reduce her publisher’s upfront costs. As a result, Samuelson was successful in getting her publisher to agree to price the book in the range that she wanted.

Even if you can’t get your publisher to agree to sell your book at a specific price, there are still some indirect strategies you could pursue to make your book more affordable. For example, you can ask your publisher to release your book only in paperback, make it available as an e-book, or simultaneously release your book in hardcover and paperback.

For more on how to ensure you can provide input on the finishing touches of your book, including the timing for publication, the formats which it will be made available, its title, and design and production decisions, see pages 144-158 of Understanding and Negotiating Book Publication Contracts.

Rights Reversion Success Story: James O’Donnell

Posted February 12, 2019

Head shot of James O'Donnell

James J. O’Donnell is the University Librarian at Arizona State University Libraries and has published widely on the history and culture of the late antique Mediterranean world. He successfully reverted rights to his 1992 edition of Augustine’s Confessions and made the book available in an open access digital version. Continued interest in the online book led to a subsequent reprint and later an additional paperback print run. Professor O’Donnell shared his rights reversion experience with us in the following Q&A.

Authors Alliance: How did you first learn of rights reversion?

James O’Donnell: In the course of becoming involved in digital publishing in 1990 and after (and founding the oldest open access online journal in the humanities, Bryn Mawr Classical Review), I had been around conversations about rights and about signing away as little as you need to [in a contract]. The book in question, Augustine: Confessions (Oxford University Press 1992, 3 volumes) was in my mind at the time, so I familiarized myself [with rights reversion].

My book was expensive and specialized, with a first print run of 1,000 copies and a provision that I would get royalties if it sold more than 600 copies. The book sold for $300, or about $550 in 2018 dollars. I figured this meant that OUP expected to sell 600 copies, or a few more. In fact it had a reprinting of 250 copies and sold out all of those. In 1995, my editor at Oxford told me with regret that she had been unsuccessful in getting a paperback edition, so the book was going out of print. I was remarkably cheerful about this prospect [because it made the book eligible for reversion].

AuAll: What motivated you to request your rights back?

JJO: I had been speaking of digital “postprints” for some time and had in fact posted an earlier book of mine from 1979 (long out of print) in that way. The Oxford volumes of Augustine’s Confessions were meant to be of high value for scholarly users, from student to researcher, and I was well aware that use was naturally limited to library copies, often non-circulating. I wanted better.

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

JJO: Yes, I wrote a simple letter to Oxford University Press. There was a clear clause in the contract.

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

JJO: First, I worked with a consortium of scholars doing Internet publishing in classics to create a digital online version of my edition of Augustine’s Confessions, now hosted at the Stoa Consortium and at Georgetown University (my former institution) on mirror sites. This resource has been available for about twenty years and is regularly praised as a teaching and research tool of considerable value.

Then, in about 2000, OUP decided to have another publisher, Sandpiper Books, do limited run reprints (not yet print-on-demand) of some of their “greatest hits” of scholarly publishing in classics, and chose to include Confessions in the series. When they told me they intended to do this, I reminded them that the rights were now mine, and we proceeded to agree on terms for licensing this specific use for a modest stipend.

Around 2012, OUP decided that the book indeed had legs and made it available in paperback. It has been in print in that format since 2013 for $179, or about one-third the original hardcover price. It was surely the case that the digital presence with open access on the web kept my book in mind and created the market for those who decided they needed a print copy. It is highly unlikely that the book would have had better sales without the e-version (and quite likely that it would not have done as well).

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

JJO: Authors should know what they want out of their books, other than the traditional thin stream of royalties that academic books receive. They should inform themselves about their rights, sign rights away carefully at the outset, and then keep an eye on just what outcome they are looking for. My sense is that with the ease of print-on-demand technology, many books may effectively never go “out of print,” requiring a different kind of strategy and vigilance for authors.

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We couldn’t agree more! Authors should be informed about their rights, and have strategies in mind for using them wisely—not only at the time a book deal is signed, but in future years, as well. To that end, we recommend two of our educational resources to help authors understand what exactly rights reversion is, how reversion fits into a book publication contract, and how to successfully secure a reversion of rights.

If, like Professor O’Donnell, you have previously published books and wish to learn more about regaining your rights, visit our Rights Reversion resource page, where you’ll find our complete guide to Understanding Rights Reversion, letter templates for use in contacting your publisher, and a collection of reversion success stories from other authors who successfully regained their rights and made their works more widely available.

If you currently have a book in progress and have not yet placed it with a publisher, we also recommend visiting our Publication Contracts resource page, which features our new guide to Understanding and Negotiating Book Publication Contracts. Knowing about rights reversion and reversion clauses before you sign your publication contract can help to clarify the conditions for reversion and pave the way for a successful reversion of rights in the future.

“Misleading on Fair Dealing”: Michael Geist on Educational Uses of Content in Canada

Posted November 29, 2018

The following post is part of a series entitled “Misleading on Fair Dealing,” by Professor Michael Geist of the University of Ottawa. Here, Geist shares his recent testimony before the House of Commons’ Standing Committee on Canadian Heritage. Canada is currently considering a comprehensive copyright review, and these comments shed light on the issues surrounding educational uses of copyrighted content. Authors Alliance has been actively following this and other discussions of fair use and educational limitations and exceptions to copyright, both in the U.S. and abroad. We thank Professor Geist for sharing his testimony with our readers; the original post can be viewed here.

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I appeared yesterday before the Standing Committee on Canadian Heritage via videoconference as part of its study on remuneration models for artists and the creative industry. The Heritage study is designed to provide additional context and information for the Industry committee’s copyright review. My opening statement is posted below. It focused on recent allegations regarding educational copying practices, reconciled the increased spending on licensing with claims of reduced revenues, and concluded by providing the committee with some recommendations for action. An audio version of the opening statement is posted here.

Good afternoon. My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society. I appear in a personal capacity as an independent academic representing only my own views.

I am sorry that I am unable to appear in person but I am grateful for the opportunity to participate in your study on remuneration models via videoconference.

I have been closely following the committee’s work on this issue, which will undoubtedly provide valuable input to the INDU committee’s copyright review. Last week I was dismayed to hear witnesses claim that Canada’s teachers, students and educational institutions are engaged in illegal activity. This claim is wrong and should be called out as such.

I’d like to address several of the allegations regarding educational copying practices, reconcile the increased spending on licensing with claims of reduced revenues, and conclude by providing the committee with some recommendations for action.

First, notwithstanding the oft-heard claim that the 2012 reforms are to “blame” for current educational practices, the reality is the current situation has little to do with the inclusion of “education” as a fair dealing purpose. You need not take my word for it. Access Copyright was asked in 2016 by the Copyright Board to describe the impact of the legal change. It told the Board that the legal reform did not change the effect of the law. Rather, it said, it merely codified existing law as interpreted by the Supreme Court. While I think that the addition of education must have meant something more than what was already found in the law, its inclusion as a fair dealing purpose was better viewed evolutionary rather than revolutionary.

Second, the claim of 600 million uncompensated copies – which lies at the heart of the allegations of unfair copying – is the result of outdated guesswork using decades-old data and deeply suspect assumptions.

The majority of the 600 million – 380 million – involve K-12 copying data that dates back to 2005. The Copyright Board warned years ago that the survey data is so old that it may not be representative. Indeed, it is so old there are cabinet ministers who could have been the actual students in the K-12 schools at the time they were last surveyed on copying practices.

Of the outdated 380 million, 150 million involves copies that were over-compensated by tens of millions of dollars as determined by the Copyright Board and upheld by the Federal Court of Appeal. Education has had to file a lawsuit to get a refund of those public dollars. I can only imagine the public response if the federal government was found to have overpaid for services by tens of millions of dollars and it failed to take action to recoup that money.

The remaining 220 million comes from a York University study, much of which as old as the K-12 study. Regardless of its age, however, extrapolating some dated copying data from a single university to the entire country is not credible. It would be akin to sampling a few streets in Ms. Dabrusin or Mr. Blaney’s ridings and concluding that they are representative of the entire country.

Third, the committee has heard suggestions that the shift from print coursepacks to electronic course material systems (CMS) is irrelevant from a copying perspective. This is wrong. The data is unequivocal: printed coursepacks have largely disappeared in favour of digital access. For example, the University of Calgary reports that only 53 courses used printed coursepacks last year for a student population of 30,000.

Why does this matter? Three reasons:

First, as universities and colleges shift to CMS, the content used changes too. For example, an Access Copyright study at Canadian colleges found that books comprised only 35% of materials. The majority was journals and newspapers, much of which is available under open access licenses or licensed by other means.

Second, the amount of copying with CMS is far lower than with print. While Access Copyright argues there should be a one-to-one ratio – for every registered student the assumption should be that every page is accessed even for optional readings – the data (and common sense) tells us this is unlikely.

Third, CMS allows for the incorporation of licensed e-books. At the University of Ottawa, there are now 1.4 million licensed e-books, many of which involve perpetual licences that require no further payment and can be used for course instruction. Tens of thousands of the e-books are from Canadian publishers and in many instances universities have licensed virtually everything offered by those Canadian publishers.

What this means is that the shift from an Access Copyright licence is not grounded in fair dealing. Rather, it reflects the adoption of licenses that provide both access and reproduction. These licences get universities access to the content and the ability to use it in their courses. The Access Copyright licence offers far less, granting only copying rights for materials you already have.

With the increased spending, why do some report reduced revenues? There may be several reasons.

First, licensing is often perpetual, meaning that payment comes once, not as an annual royalty.

Second, many works aren’t being used or copied. UBC reports that 69% of their physical items have not been used since 2004.

Third, despite the shift to digital, Access Copyright’s Payback system excludes all digital works. In terms of eligibility, its rules exclude “blogs, websites, e‐books, online articles and other similar publications. Only print editions can be claimed.” Moreover, the Payback system also excludes all works that are more than 20 years old on the grounds that they are rarely copied.

Fourth, Access Copyright has refused to adopt transactional licences, thereby sending licensing money elsewhere. Education is spending millions each year on transactional licensing which permits copying for a specific course, yet Access Copyright has not entered that market.

Fifth, consistent with what this committee heard from Bryan Adams, it may be that part of the problem lies with the relationship between authors and publishers, with authors under-compensated for the digital revenues.

Let me conclude with a few thoughts on solutions on remuneration.

First, efforts to force the Access Copyright licence on educational institutions through statutory damages reforms should be rejected. Education should be free to pursue the best licences the market offers, an approach that is in the best interests of both education and authors. At the moment, that comes directly from publishers and other aggregators, not Access Copyright.

Second, the government should work with Canadian publishers to ensure their works are available for digital licensing either in bundles or through transactional licenses. Given that digital licenses are sometimes the only source of revenue – Access Copyright’s Payback doesn’t compensate for older works and print sales of old books is typically non-existent – embracing the digital opportunities with a forward looking approach may be the only revenue source for some authors.

Third, governments should continue to pursue alternative publishing approaches that improve both access and compensation. For example, last week’s Economic Update announcement of funding for creative commons licensed local news should be emulated with funding for open educational resources that pays creators up front and gives education flexibility in usage.

Fourth, non-copyright policies must be examined. For example, how is that Canadian content rules for film and television production still treat Canadian book authors as irrelevant for Cancon qualification?

Despite the criticism, the 2012 reforms were about establishing rules to foster a digital market for the benefit of all stakeholders. It is still early in the process, but we have already seen a huge shift to digital for both education and the publishing industry, with hundreds of millions spent on digital licensing. That’s a win for everyone except for an outdated licence that now offers little value when compared to other market and legal options.

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Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law and is a member of the Centre for Law, Technology and Society. His website, michaelgeist.ca, provides coverage of intellectual property, technology, and copyright issues in Canada.

Spotlight on Book Publication Contracts: Shaping Your Grant of Rights

Posted October 30, 2018

In our Spotlight on Book Publication Contracts series, we are shining a light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

The grant of rights is the heart and soul of your publication contract. It specifies what rights in your work you are giving to your publisher and what your publisher can do with these rights. These rights can be broad (e.g., the right to print and sell copies of your work anywhere in the world, forever) or they can be narrow (e.g., the right to sell a limited edition in a specific market for a set period of time).

Last week, we featured contract terms that authors can use to form a publication contract that accommodates open access options. This week, we are sharing more ways you can shape your publication contract to retain some control over your rights, either by limiting the grant of rights or by securing the right to approve or be consulted about how your rights are used.

Limiting the grant of rights

One way you can help ensure your work is available in the ways you want is to negotiate for changes to the grant of rights. This is especially important if holding onto certain rights is important to you for personal or professional reasons, if your publisher is unlikely to be able to exploit certain rights, or if you (or your agent) have another opportunity lined up to use certain rights.

In last week’s post, we shared how authors can use non-exclusive licenses or limited-term grants to limit their grant of rights clauses. Another way to soften the grant is through a “use it or lost it” clause, also called a “revert-back” clause. Under these types of clauses, if your publisher doesn’t use or license a specific right within a set period of time, the right reverts back to you. This is a powerful tool that gives you or your agent another opportunity to use or license rights in the event the publisher is not able to actively exploit them.

Success Story: Howard Zaharoff, a literary attorney interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts, worked with an author who wrote a book that had great potential to be turned into a movie. The author was therefore hesitant to sign over motion picture rights for fear the publisher would not exploit them. But the publisher also saw the potential for a Hollywood hit and was keen to try to sell movie rights. To resolve this tension, Zaharoff helped the author secure a “use-it-or-lose-it” provision that satisfied both parties: The publisher was given three years to place the movie rights, but if the publisher did not do so in this timeframe, the author could reclaim the rights.

For other ways to limit the grant of rights, including limiting the scope of the rights granted, asking for a license-back clause, and reserving rights not granted, see pages 63-74 of Understanding and Negotiating Book Publication Contracts.

Securing approval or consultation rights

Sometimes, it makes sense to license rights to your publisher, but you might still want to have some say in how your rights are used. “Approval” clauses give authors the opportunity to review and approve decisions before they are made by the publisher (often subject to the condition that your approval will not be unreasonably withheld).

Success Story: An author interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts wanted to maintain some control over the development of the audiobook version of her book and its adaptation into a screenplay. After explaining to her publisher that it was particularly important to ensure the integrity of the dialect and voices of her characters, her publisher agreed to give her the right of approval over the licensing of these subsidiary rights.

Another way to have a say in how your rights are used is through a “consultation” right, which gives you the opportunity to discuss decisions with your publisher before decisions are made about how your work is used. Consultation rights don’t give authors the same level of control as approval rights since the publisher still has the final say, but they provide an opportunity to discuss any concerns with the publisher before decisions are made.

Finally, don’t overlook “notice” provisions, which require your publisher provide timely notice of any uses of your work, including licensed uses by third parties.

For more on approval, consultation, and notice rights, see pages 91-94 of Understanding and Negotiating Book Publication Contracts.

Spotlight on Book Publication Contracts: Open Access Success Stories

Posted October 22, 2018

Last week, we released a guide to Understanding and Negotiating Book Publication Contracts. Today, to celebrate Open Access Week, we’re featuring ways that authors can make their books open at different stages of the book’s life cycle and how to shape a publication contract to accommodate these options. As with our guide, we’re highlighting real success stories from authors who have successfully negotiated for terms in their publication contracts that enable them to meet their open access goals.

An initial consideration for authors is whether to publish with a dedicated open access publisher, such as Luminos (University of California Press’ open access publishing program for monographs), or to negotiate with a traditional publisher. Whether working with a dedicated open access publisher or negotiating with a traditional publisher, authors may be asked to contribute to the cost of publishing the book on open terms. However, funding is increasingly available for authors who want to make their books openly accessible. For example, TOME—Toward an Open Monograph Ecosystem—is an initiative in which participating universities provide funds to support the publication of open access monographs.

Negotiating to release a book on open terms with a traditional publisher may be difficult, but it’s not impossible. If you want to pitch your traditional publisher on open terms, it can help to make the case that your proposed non-exclusive arrangement is potentially just as lucrative for your publisher as an exclusive grant would be and to add sweeteners to the contract that make your proposal more enticing.

Success Story: Eric von Hippel, an economist at MIT and a member of the Authors Alliance advisory board, studies the economics of distributed and open innovation. Professor von Hippel wanted to “walk the walk” and make his previously published book, Sources of Innovation, freely available to the public online. So, he struck a deal with his publisher: If hard copy sales declined after he made his book freely available online, he would pay the publisher $1,000 as compensation for lost sales. If sales went up, the publisher would keep the profits and allow him to keep posting the free version. Happily, sales of printed copies went up, so he was able to keep the free version available online. Based on the success of this experiment, von Hippel was able to negotiate a non-exclusive license with his publisher for his next two books, Democratizing Innovation and Free Innovation.

Making a book openly accessible at the outset is not the only option. Publication contracts can be shaped in many ways to limit the scope of the grant of rights, including limits on the duration of the grant of rights to the publisher. By modifying the length of the grant, authors can get more control over how their works are used in the future because they regain their copyrights after the grant has expired. Some authors opt to limit the length of an exclusive grant of rights so that they can make their book openly available after that time passes.

Success Story: When she published her book The Eureka Myth: Creators, Innovators and Everyday Intellectual Property, Authors Alliance founding member Jessica Silbey negotiated for an innovative grant of rights to her publisher. Under the terms, her publisher obtained the exclusive right to publish the book for five years. After five years, Professor Silbey will automatically regain her copyrights and her publisher will keep a non-exclusive right to continue selling the book (under the same royalty terms). Although Silbey initially asked for the publisher’s exclusive rights to be limited to three years, she was persuaded by its legitimate business interest in having exclusive rights for the first five years. This arrangement enabled her publisher to fulfill its sales objectives, while also allowing Silbey to realize her goal of making The Eureka Myth widely available to readers in a Creative Commons-licensed online version after five years.

Another point in a book’s lifecycle at which open access may be a desirable option is after a book outlives its commercial life. A strong rights reversion clause that allows you to get your rights back when well-defined triggers are met can allow you to make your book openly accessible after its commercial life is over.

Success Story: Pamela Samuelson, a co-founder of Authors Alliance, wanted to make sure that she could get her rights back if her book was no longer selling well. The original version of her publication contract included a triggering condition that was based on the availability of English-language editions. Concerned that the mere availability of an ebook version of her book, regardless of sales, would mean that this triggering condition would never be met, Professor Samuelson negotiated for a change to the publisher’s standard triggering condition. After some initial resistance from the publisher and through persistent but respectful communication explaining her concerns, her reversion clause now is triggered if author earnings fall below a certain level. The clause now also directs the parties to discuss open access or similar distribution as an alternative to a full reversion of rights.

Finally, some authors who are determined to release their books under an open license may want to consider self-publishing.

Success Story: Authors Alliance founding members James Boyle and Jennifer Jenkins wanted their casebook, Intellectual Property: Law & The Information Society, to be available to as many law students as possible. For this reason, they decided to forgo traditional publishing and self-publish their book under a Creative Commons license, which allows students to download the book online for free. The decision has yielded unexpected benefits. For example, visually impaired students have told Professors Boyle and Jenkins that they appreciate using the open electronic text to produce a machine-generated audiobook in whatever format they choose.

For more information on open access, see Authors Alliance’s guide to Understanding Open Access: When, Why & How to Make Your Work Openly Accessible. For more information on understanding publication contracts and negotiating for author-friendly terms, see Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.

Announcing the Authors Alliance Guide to Understanding and Negotiating Book Publication Contracts!

Posted October 15, 2018

We are delighted to share our brand-new guide to Understanding and Negotiating Book Publication Contracts.

Now available to the public (following a special pre-release to our Kickstarter backers), this new guide is the latest addition to our growing library of resources for authors, which also includes educational handbooks on rights reversion, open access, and fair use.

Copyright law and contract language are complex, even for attorneys and experts. Authors may be tempted to sign the first version of a publication contract that they receive, especially if negotiating seems complicated, intimidating, or risky. But there is a lot at stake for authors in a book deal, and it is well worth the effort to read the contract, understand its contents, and negotiate for favorable terms.

To that end, Understanding and Negotiating Book Publication Contracts identifies clauses that frequently appear in publishing contracts, explains in plain language what these terms (and typical variations) mean, and presents strategies for negotiating “author-friendly” versions of these clauses. When authors have more information about copyright and publication options for their works, they are better able to make and keep their works available in the ways they want.

The guide is designed to help authors to:

Learn about the basics of copyright law, and how copyright shapes the author-publisher relationship;
Evaluate the pros and cons of assigning and/or licensing their copyrights;
Understand the responsibilities of authors and publishers in preparing, designing, and marketing a book;
Clarify financial matters such as advances, royalties, and accounting statements;
Consider options for making their books available to readers in the short and long term;
Advocate and negotiate for contract terms that help them meet their creative and pragmatic goals;
And much more!

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“Every author should have this at hand.”
– Sidonie Smith, University of Michigan

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The guide is based on language contained in actual book contracts, and is further supported by surveys and in-depth interviews with authors, publishers, and literary agents and attorneys. These real-world scenarios help authors understand how to approach negotiation, what kinds of clauses to look for (and which to avoid), and how to engage in productive conversations with agents and publishers to ensure author-friendly contracts that align with their creative and pragmatic goals. The guide is designed to empower authors to shape a publication contract that benefits them, their publishers, and readers, ultimately increasing the impact of their books.

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“This is a valuable guide that will help to demystify the contract
process for authors. It should encourage them to think through
and negotiate for the things that matter most to them,
and to trade off things that matter less. That will make the
negotiation process more satisfactory for the publisher as well.”
– Gita Manaktala, MIT Press

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We thank Rob Walker and the student attorneys at the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law for their help in researching and drafting the guide. These former clinic students include:

Katherine Bridge
Alfredo Diaz
Karen Graefin vom Hagen
Anna Kuksenkova
Henry Nikogosyan

We are also grateful to our Kickstarter backers for their support and to the publishers, literary agents and attorneys, authors, and expert reviewers who contributed to the guide.

You can download the guide and learn more about contracts and negotiation at our new Publication Contracts resource page. (And, for those who prefer to read Understanding and Negotiating Book Publication Contracts in print, we will release a softcover edition later this fall.)

Creative Commons Summit Builds Momentum for Strengthening Author Rights

Posted May 8, 2018

We would like to thank Creative Commons General Counsel Diane Peters for contributing the following post, which originally appeared on the Creative Commons blog on May 7 under a CC-BY license.

The Creative Commons 2018 Global Summit in Toronto brought together a diverse group of stakeholders to explore strategies for increasing author choices for managing their copyright, and included the announcement of the new Creative Commons Rights Back Resource (beta) that will provide authors worldwide with information about how to regain copyright previously assigned away.

To facilitate momentum on the tool, Creative Commons, SPARC Europe and Authors Alliance convened an in-depth workshop involving more than 60 attendees focused on Giving Authors Control: How to Retain and Regain Your Copyright.

sparc-europe Vanessa Proudman, Director of SPARC Europe, framed the workshop looking at the current context, goals and challenges with rights management. She shared ten prerequisites for making open the default, and talked of how the community might best enable open for academics and readers. Among other highlights, she provided an overview of funder and government mandates for open access and identified key goals and challenges to enable open.

authors-alliance Brianna Schofield, Executive Director of Authors Alliance, highlighted and explained existing legal tools that help authors make sound publication decisions and regain control of their works, sharing thoughts on the value of doing so in support of authors making their works available in the ways they want. She explained the complicated nature of termination rights that authors have in the United States and resources that Creative Commons and Authors Alliance have developed to help them navigate those provisions. Michael Wolfe, formerly of Authors Alliance and now at the University of California, Davis, gave a live demonstration of how the www.rightsback.org termination of transfer tool can help authors determine whether they have reversionary rights.

Diane Peters, General Counsel of Creative Commons, described CC’s work in open access in support of a more vibrant and usable commons. She focused on work, generously funded by Arcadia, a charitable fund of Lisbet Rausing and Peter Baldwin, to develop improved authors addenda that authors can use to retain some rights to their scholarly articles when submitting to traditional, non-OA publishers. She also announced the launch of a new legal tool under development and funded by Arcadia, the Rights Back Resource (beta). Authors and those who support them, such as librarians, will be able to consult the resource to understand reversionary and termination rights around the world.

Session attendees then broke into three working groups to conduct deep dives, exploring three important areas: knowledge gaps and what authors should know if they want to help change current open access practices by retaining rights; existing and future advocacy tools and campaigns that can affect real change in the OA ecosystem; and strategies for overcoming publisher obstacles to author tools. A complete list of resources, speaker presentations, and notes from the breakout working groups may be found here.

WHAT’S NEXT

The three organizations plan to continue coordinating their respective efforts on new and existing legal tools, outreach, education and advocacy. This will include focusing on tangible ways to push ahead on ideas generated during the CC Summit session.

Creative Commons also welcomes contributions to the new international Rights Back Resource (beta). We need experts to identify and contribute information about reversionary and termination rights around the world. Our goal is provide a comprehensive resource where authors can learn about rights they may have to retake control over publication rights to their works that they previously assigned away. Please join CC in this effort and contribute information here.

We are also working on updates to the Scholars Copyright Addendum Engine and the addenda templates found there. An open questionnaire will be published soon with the goal of learning more about the needs and preferred terms of addenda to be used by scholars, authors and academics.

Thank you to everyone who participated in our Summit session! We look forward to seeing your contributions.

Rights Reversion Success Story: Jessamyn West

Posted April 17, 2018

As part of our occasional Q&A series on alternative publishing models, we talked with librarian extraordinaire Jessamyn West, who successfully reverted rights to her book Without A Net, and released it under a CC-BY license on unglue.it, a website that uses crowdfunding to support the release of e-books that are made freely available by a variety of rightsholders.

Authors Alliance: Why did you decide to make Without a Net freely available, and how did you decide to use unglue.it to achieve this goal?

Jessamyn West: When I wrote Without A Net in 2011, I was a reluctant author. I like to share my writing as widely as possible, but sometimes it’s hard to tell if the best way to do that is through a major publisher or by reducing barriers (i.e., costs) to access. While I adored my editor, I had a frustrating experience with my publisher—a lot of pushback on minor issues, a lot of extra work on my part for a product where I was ultimately not the primary beneficiary—and would not choose to publish this way again.

I wanted to make the book available, but did not really know or understand the process of getting my rights “back” from the publisher. I’d known people who did it in one way or another, but had always assumed, somehow, that it was prohibitively expensive or would involve arguments or lawyers.

I’ve always been a fan of opening up access (my work with the Internet Archive’s Open Library project was primarily geared towards this), and when Eric [Hellman, unglue.it’s founder] approached me to try out Unglue.it, I was excited to help out. It combined my two loves, which are (1) open access, and (2) improving user experience design for community tech tools. I was pleased with how it all worked.

When I worked with the Authors Alliance to help authors share their books on Open Library I got more interested in finding a way to do this with my book. In conversation with Eric Hellman, whom I’ve known through library circles since the early library blogger days, I learned that it wouldn’t be as expensive as I’d previously thought. So I figured, “Hey, what the heck?”

AuAll: Can you walk us through the process of regaining rights from your publisher in order to make the book openly available?

JW: It was so simple! I just sent them an email saying, “Hey, I’d like to do this,” and they said, “OK, it costs $2,000.” We had to do a little bit of back and forth since they had to send me an official contract for all of this, but the bottom line is they are a business, my book was seven years old and not really all that current, and this was just another (good) business deal for them. The hardest part of the whole thing was obtaining an EPUB version. When they made a digital version of the book, it was just a PDF and they sent the book away to an ebook jobber to make the Kindle version. So they didn’t have an EPUB version to give me, and Eric had to do the EPUB creation on his own which was, honestly, probably the most difficult part of the whole thing. EPUB creation is challenging to do right.

AuAll: How did you decide which Creative Commons license to apply?

JW: I opted for the least restrictive I could be without putting it in the public domain, so it’s CC-BY. I wanted my name to stay attached to it, but I didn’t care if people remixed it, sold it, whatever. This took a little bit of thinking on my part, because we’ve all seen publishers who basically repackage public domain materials and sell them to people who are not savvy enough to realize they can get the same content for free . I dislike this, but I didn’t feel like it was my crusade with this particular activity. I also think there is a good argument to be made for CC BY-SA (a share alike) license, just to pay it forward, but again I feel like I was working with digitally divided folks and I wanted the license restrictions to be as easy to understand as possible.

AuAll: Is there anything that surprised you, or that you wish you’d known before you started?

JW: I tend to dive in first and read the fine print later. While it only cost $2,000 to get the rights from my publisher, there were some ancillary costs (sending out “premiums,” cash processing fees, etc, associated with the unglue.it crowdfunding model) that added up that I should have taken into account as part of this process. I had a very supportive community behind me, and could have crowdsourced more of the associated expenses if I had been more deliberate on how I went about it. I was also somewhat surprised how little my publisher cared, which made me feel better about severing my business relationship with them. Not that I had negative feelings about them, but their primary concern is money and not helping ease the digital divide. I’m the opposite, so this approach made sense for me.

AuAll: Have you received any feedback from readers who have benefited from finding your book online?

JW: Most of the people I have heard from are people who were involved in the process, people who helped support it or people who helped me go through this process. I feel in some ways like we’re in an age of aspirational texts. People like having books around “just in case,” or because they’re interested in the topic, and they’re certainly easy to accumulate, but I haven’t heard from anyone who has actually READ the book recently, though I’d certainly like to.

AuAll: Do you have any words of wisdom for other authors who are thinking of “ungluing” or otherwise making their books available under a Creative Commons license?

JW: I am happier not worrying if it’s going to be okay for me to send a PDF of my own book to someone who asks me about something in it. My book came out in 2011 in the same week my father died suddenly, so I was sufficiently distracted that I didn’t really give it the send-off that it deserved. This gave me a second chance to make a modest big deal about the work that I’d done and the ideas that I was hoping to spread, and I was glad I got a chance to do that. Eric was an incredibly engaged and helpful steward of this entire process, so if someone is thinking “I’d like to do this, but how?” I strongly urge them to get in touch with him.

Jessamyn West is a librarian and community technologist who lives in Central Vermont.

Readers And Book Markets Benefit From Authors Reclaiming Their Rights

Posted April 3, 2018

Headshot of Paul Heald The following guest post by Paul Heald describes his recent analysis of the beneficial effect of rights reversion and termination of transfer in the traditional and ebook markets. Heald is the Richard W. and Marie L. Corman Professor of Law at the University of Illinois. He is also a fellow and associated researcher at CREATe, the RCUK Centre for Copyright and New Business Models in the Creative Economy, based at the University of Glasgow. His recent publications have focused on economic aspects of the public domain, patents, studies of best-selling fiction and musical compositions, and the behavior of famous trademarks in product and service markets. In addition to his scholarly work, Heald has published three novels.

Authors Alliance has been encouraging authors to recapture their copyrights in order to “free up” their works for new uses and wider distributions, either with new publishers or through online postings under Creative Commons licenses. Authors do benefit from rights reversions, but a recent empirical study, “Copyright Reversion to Authors (and the Rosetta Effect): An Empirical Study of Reappearing Books” shows that consumers of books are likely to experience a significant benefit from author rights reclaimings as well.

In my sample of 1,909 book titles, between 20-23% appear to be in print only because of rights reversion.

Here’s a reminder of the four ways that authors who have assigned their rights to a publisher can get back their copyrights:

1) Ask the publisher nicely (always an option, and for help with this, see the Authors Alliance guide to rights reversions);

2) File a notice to terminate an author’s prior transfer of rights under section 304 of the Copyright Act (a right which arises 56 or 75 years after publication for a work first published between 1923-77);

3) File a notice to terminate an author’s prior transfer of rights under section 203 of the Copyright Act (a right which arises 35 years after the transfer of a work first published after Jan 1, 1978) (for help with this, see the Authors Alliance/Creative Commons Termination of Transfer Tool at rightsback.org);

4) Exploit a key limit on grants under pre-digital era publishing contracts that did not effectively assign ebooks rights (a contract that merely assigns all rights to a work “in book form” does not effectively transfer ebook rights).

Authorial assertion of ebook rights under this fourth option is known as the Rosetta Effect, after a famous case which worked a surprise de facto “reversion” of ebooks rights to authors in 2002.

My study was undertaken to test the claim that a change in the ownership of copyright in a work from original publisher back to an author (or her estate) might lead to the better dissemination of out-of-print or otherwise commercially inactive works. The study focused on the availability of more than 1,909 new editions of books that had been at one time New York Times (NYT) bestsellers, titles by NYT bestselling authors (whether the book was a bestseller or not), and books reviewed in the NYT Book Review.

A close analysis of the identity of current publishers of older titles shows that the recapture of author copyrights through the termination rights of sections 203 and 304, along with author retention of ebook rights under Random House v. Rosetta Books (2002), have significantly increased the availability of book titles to consumers.

The data reveal a market for reverted books that is exploited by independent publishers. The most active, Open Road Media, describes its business model on its web site: “We are committed to bringing back the backlist, making reverted titles and works that have never been converted to digital format widely available as ebooks….This program is for authors whose rights have reverted, whose titles have not previously been digitized, or who are looking to have their works available as ebooks.”

One can see Rosetta at work in the first chart below and the effect of section 203 in the second chart. Both charts list the publishers of ebooks (“e”), bound volumes (“b”), and both ebook and bound versions of a title (“e/b”). Original publishers, almost all well-known traditional publishers, are denominated PUB, while new independent publishers like Open Road, are denominated IND.

None of the bestsellers in the chart above are yet eligible for termination, so in theory, all of the copyrights are still controlled by the original publishers, who seem only interested in keeping approximately 66% of the titles in print (other sub-samples of older bestsellers show original publishers keeping as few as 12% of titles in print).

What explains the 18% additional titles offered by new independent publishers? The 16% of titles available only as ebooks are most likely due to the holding in Rosetta which gave many (but hardly all) authors the chance to control digital (but not bound) versions of their works. Beneficiaries of the ruling can partner with a new, sometimes digital-only press, to make their works available.

A look at reversion eligible books from the same era tells an additional story about the effects on availability based on section 203 termination rights:

All the works are termination eligible, but original publishers have decided to exploit about half of their older titles. (What author says “no” when Random House asks to make her out-of-print bestseller available in a new edition?) One sees reversion at work in the 9% of books offered by new independent publishers in both ebook and bound versions. The 22% available as ebooks only would seem to be in print as a result of Rosetta or of the termination threat of section 203. It’s hard to know which. But in any event, the good news is that more books are becoming more available through authorial reclaiming of rights and making new arrangements to publish them (a whopping 31% in this sample!)

The full paper, which is available here, analyzes a number of different data sets and provides an appendix of rights reversion schemes around the world. The paper also notes that few authors bother making a formal termination filing with the U.S. Copyright Office (they should!). The sending of a termination notice to a publisher, or the looming likelihood of termination, seems to be enough to create this new market being exploited by independent publishers. The story in the U.S. seems fairly clear: Rosetta and the availability of termination under section 203 and 304 are helping bring older works back into print. It is less easy to track individual author rights reversions through asking publishers for rights, but the experiences of numerous Authors Alliance members in reclaiming copyrights in this manner suggest that this option should be more widely used and recognized.

Rights Reversion Success Story: Dale Cannon

Posted March 27, 2018

Dale Cannon is Professor Emeritus of philosophy and comparative religion at Western Oregon University. In March of 2017, he reverted rights to his religious studies textbook, Six Ways of Being Religious and made the book available under a Creative Commons CC-BY-NC license in Western Oregon Library’s Digital Commons open access repository. During the past year, the book has been downloaded nearly 600 times. Professor Cannon shared his rights reversion experience for us in the following Q&A.

Authors Alliance: How did you first learn of rights reversion?

Dale Cannon: I first learned of rights reversion at a workshop/conference I attended for textbook authors the year after my book was published (1996). It was all new to me. The one thing that particularly stood out was the claim that absolutely none of the polished contract that I had received from Cengage Learning (at the time it was operating under the name Wadsworth Publishing) was “written in stone;” every word of the contract had been open to negotiation. (That, of course, doesn’t mean that Cengage would have readily accepted a rights reversion clause that favored my interests.) About such matters I was completely naïve when I signed the contract.

I believed at the time that Cengage/Wadsworth was the best publisher I could have secured, as they had a track record of publishing several books closely related to the orientation and content of my book, and their publishing campaigns for those books seemed ideal. So I’m skeptical that I would have had much leverage to get them to include a rights reversion clause, especially one favoring my interests.

AuAll: What motivated you to request your rights back?

DC: Several factors motivated my request. One is that the book wasn’t selling well, due to a failure on Cengage’s part to mount a major sales campaign (as had been promised by my editor, who left the company shortly after the contract was signed). The editor subsequently assigned to my book had no interest in books on religious studies and ignored the previous editor’s enthusiasm and promises. On top of that, the original price of about $27.00 had long since been left behind and was 3 and 4 times that by the early years of the 21st century. But I was very interested in having the book become better known and more widely used in university classrooms. It wasn’t simply a textbook in the comparative study of religions; it was distinctly different and broke new creative ground in the theory of religions.

I have since learned more about self-publishing and how attitudes among academics toward self-publishing have changed a lot and become much more positive. Of course, I could not consider any such option until I had rights reverted to me.

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

DC: I simply wrote to the editor (14 years after publication) requesting reversion of rights, explaining how sales had been very low for quite some time (especially for a textbook), with no prospect of that changing. Clearly my publisher wasn’t making any money on the book, so warehousing remaining copies was becoming a problem, not to mention the prospect of a reprinting.

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

DC: There is a clause in the contract entitled “Reversion of Rights,” that seems to be entirely conditional upon the book being “declared out of print in the United States” plus 90 days after such declaration. I did not appeal to this clause of the contract when I wrote requesting reversion.

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

DC: I did not face any obstacles. I received communication back from my request within a week, as I recall, and the official reversion of rights within about a month. The persons with whom I had communication regarding reversion were all cordial and easy to work with. There is nothing I would have preferred doing differently regarding the process.

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

DC: There are several different circumstances that need to be taken into account.

Before the contract is signed, by all means try to have a reversion of rights included in the contract. Do some research and have some alternative models at hand for how it might be worded. Do take the publisher’s interests into account and, if possible, provide reasons for reversion that not only will be understandable to the publisher but also make it attractive to them. Be prepared to go to another publisher. It would be best if you have another acceptance offer in hand, or at least the strong likelihood of one.

After publication, a reversion of rights, in a situation where there is not a strong reversion of rights clause with clear conditions that are met, there should be no problem. If there is no such clause, then you would need to establish that it would be in the publisher’s best interest to revert the rights to you—which could be a very tall order, unless the future prospect of sales, etc., is very dim, as was the case for me.

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

DC: Reversion has given me freedom to do what I want with Six Ways of Being Religious, including publishing it myself, and possibly finding another publisher. Currently, I have chosen to have it digitized and published on my university’s digital commons.

Since doing so, it has been downloaded more than 500 times in many different countries around the world. I am considering offering print-on-demand and possibly an ebook version, both for a small price.