Category Archives: Managing Authors’ Rights

My Publisher Agreed to Revert Rights: Now What?

Posted July 23, 2019
Photo by Javier Allegue Barros on Unsplash

Since we first published our guide to Understanding Rights Reversion in 2015, our rights reversion resources page has been a one-stop shop for authors seeking the information they need to get back the rights in their works.

Rights Reversion CoverFor those who are new to the concept of rights reversion, the guide is a good place to start. It explains what rights reversion is, how it benefits authors and readers, and how to go about reverting rights. For authors who already know that they wish to pursue reversion, the resource page features guidance and letter templates that authors can refer to when contacting their publishers to request a reversion of rights. The resource page also highlights the success stories of authors who have regained their rights in order to release their works under open licenses, make their works available as low-cost e-books, repackage a book series, or even place their works with a new publisher.

Over the years, our members have reached out to ask for more information about what happens at the point when a publisher agrees to revert rights. In this post, we’ll cover:

  • Getting the files and permission you need;
  • Understanding and tracking ongoing obligations related to your work;
  • Purchasing your publisher’s inventory of your work; and
  • Updating the Copyright Office’s records with new ownership information.

Getting the Files and Permission You Need

When reverting rights, it is helpful to ask your publisher for both the physical materials and any the intellectual property rights you may need for future printings. In fact, some publishers are required by the terms of the publishing contract to provide authors with these items. The items that you may need include not only the digital design files and rights for the text you created, but also the files for art and other materials created by third parties, as well as the permission to use these items if permission is required.

For example, authors who want to reuse the same cover art when they make their reverted books newly available may need to acquire both the source files and a copyright license to reuse cover art that was created or commissioned by their publisher. (Of course, when it applies, authors may also rely on fair use to incorporate third-party works in their works.)

Understanding and Tracking any Ongoing Obligations

Your publisher may have other obligations to fulfill after the reversion. It may, for instance, still need to make royalty payments for sales accrued before the reversion or from other sales or licenses that are still ongoing. As you finalize your reversion, it is important to understand your publisher’s accounting cycle and ask for clarification if you are unsure how and when your publisher plans to account for past or ongoing sales.

Importantly, authors who regain rights need to understand whether any outstanding licenses to their works are still in place and how these licenses will be treated. For example, if an author’s publisher has licensed the French translation rights to her book to another publisher, she will want to know whether the license is exclusive or nonexclusive, whether the license survives the reversion, and whether she can expect any ongoing royalties or other payments for the license. If the license is exclusive and survives the reversion, the author’s reversion is subject to that license. This means that she cannot make and sell French translations of her book without violating the other publisher’s exclusive rights. But she may have ongoing royalties for the sales of the French translation, which she should be sure to track.

Purchasing Your Publisher’s Inventory

If your publisher has any remaining copies of your book in stock, you may consider offering to purchase the remaining inventory. In fact, some contracts give authors the right to purchase stock at the time of reversion at cost. This gives authors the opportunity to purchase these copies at a discounted price in order to sell or otherwise share these copies.

If you are not interested in purchasing copies, or your publisher does not want to sell them to you, it is still a good idea to find out how many copies the publisher has left in its inventory. Often, publishers explicitly retain the right to sell their existing inventory in reversion agreements, subject to continued royalty payments to the author. If you know how many copies the publisher has in stock, you can better understand and track any royalties due from these sales.

Updating the Copyright Office Records with New Ownership Information

Last but not least, after reversion, authors should consider updating the U.S. Copyright Office’s records with their works’ new ownership information. The records held by the U.S. Copyright Office will likely list your publisher as the copyright owner (“claimant”) and/or the point of contact for permission to use the work. After reversion, it is up to you (as the new owner of the copyright) to update this information.

Fortunately, new copyright owners can record a transfer of copyright with the Copyright Office to update these records. Updating the Copyright Office’s records after you revert rights establishes a public record of your new ownership rights. This will make it easier for future users to find accurate information about the current ownership status of your work. When people know whom to contact for permission, it can help increase the dissemination of your work, and potentially your compensation if you license paid uses.

A transfer of copyright can be recorded by submitting a signed or certified, complete, and legible copy of the document being recorded (such as a rights reversion letter from your publisher) to the Copyright Office, together with the required fee (currently $105 for a single title) and Form DCS cover sheet. If accepted, the Register of Copyright will record the document and issue a certificate of recordation. As of July 2019, the processing time for recording transfers or other documents related to copyright is 9 months. For more information on recording transfers of copyright ownership, see Copyright Office Circular 12: Recordation of Transfers and Other Documents.

If you want to know more about how to get your rights back, check out the digital or print version of our guide to Understanding Rights Reversion. For guidance on self-publishing following a reversion of rights, see How Traditionally Published Authors Can Repackage and Self-Publish Their Backlist by author Jess Lourey.

If you have questions about rights reversion you’d like to see Authors Alliance address, send a message to reversions@authorsalliance.org.

Spotlight on Book Publication Contracts: Follow the Money

Posted April 16, 2019

Shelf with colorful books and Authors Alliance logo on blue background
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 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.

In previous posts, we have featured ways authors can shape their publication contracts to retain some control over their rights and ways authors can have a say in how their works will be presented to the world. But rights management and design decisions may not be the only thing on your mind in a book deal. In this installment of our Spotlight on Publication Contracts, we’re focusing on ways that you can shape your contract to help secure fair compensation for your work. Contract terms governing advances and royalties are two key ways that your contract determines what money will flow to you.

Advances

Advances are payments for book deals that are credited against all or some part of your future earnings. An author’s advance is influenced by many factors, including the potential market size for the book, whether the author is a new or established writer, the book’s timeliness and competition, and a publisher’s calculation of risk and reward.

A perennial question for authors is “How big should my advance be?”. Unfortunately, there aren’t any hard-and-fast rules about the size of an advance. Sometimes, it makes sense to negotiate for the biggest advance possible. Because an advance is a credit against your royalties, if your publisher pays you a big advance, it has an incentive to market your book aggressively so that it sells enough copies to recoup this payment.

Success Story: An author interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts wanted his book to be affordable and to be widely distributed, and he knew marketing would be important. Not being familiar with the publishing business, he hired an agent. The author and his agent pushed for a large advance in exchange for a modest cut in his royalty percentages. This way, the publisher would have the biggest financial incentive to market his book, as it stood to make more money once the author recouped. Further, the author agreed to use half his advance to hire an independent publicist to promote his book. This made it easier for his publisher to agree to a large advance as this increased the likelihood that the author’s book would be financially successful.

On the other hand, it’s possible that you may not receive an advance at all. While advances are typical in trade publishing, they are uncommon for scholarly works published by university presses. And, in certain circumstances, you might not want to take an advance. For example, your publisher may offer you a higher royalty percentage if you don’t take an advance, which could result in you earning more money over the long term if your book is successful. Or, you might be able to use a low (or no) advance as a bargaining chip to get better terms in another part of the contract.

Whatever the size of the advance you settle on, it’s important that you pay attention to how and when your advance will be paid and how your advance will be recouped. For more on advances, see pages 182-194 of Understanding and Negotiating Book Publication Contracts.

Royalties

Royalties are the amount of money that authors get from the sales of their books, usually expressed as a percentage. There are three main types of royalties:

  • royalties based on the book’s published price (also called the “list price,” the “cover price,” or the “manufacturer’s suggested retail price”);
  • royalties based on the publisher’s net income from sales of the book (also called “price received” or “sales proceeds”); and
  • royalties based on the publisher’s net profit.

To calculate your royalties under any of these systems, you’ll need to know both the percentage you will be receiving and the price from which that percentage is taken. It is very important to understand your royalty structure because it can make a huge difference in your future bank statements. For a detailed explanation of each royalty type, see pages 198-205 of Understanding and Negotiating Book Publication Contracts.

Success Story: Sergio Troncoso, an author of short stories, essays, and novels, as well as a savvy negotiator, pushed for his royalties to be a percentage of the list price, reasoning that this would likely be the more lucrative option. His publisher was initially resistant, but after a few rounds of back and forth, Sergio’s patience and perseverance paid off. His publisher agreed to a compromise: Rather than getting the published price (list) royalty he had asked for, he would receive a higher percentage of the net profit royalty than was originally offered.

Your royalties can also be influenced by escalation clauses, small reprinting provisions, reserves on returns, deep discount provisions, and remaindered books. For more on these topics, see pages 206-213 of Understanding and Negotiating Book Publication Contracts.

Reversionary Rights Around the World

Posted April 9, 2019
image by Gordon Johnson from Pixabay

For creators who want their works to be widely shared and enjoyed, terminating transfers of copyright are a powerful option for getting works back out in front of audiences. Authors Alliance has long been a proponent of giving authors statutory rights to terminate transfers of copyright (often called “reversionary” or “termination of transfer” laws). Among other benefits, these rights give creators the ability to give new life to works that have outlived their commercial lives but are nonetheless historically and culturally valuable.

A new study of reversion laws by Joshua Yuvaraj and Rebecca Giblin found that 56% of the 193 countries examined have author-protective laws that allow authors to get their rights back from publishers if certain conditions are met. Yuvaraj and Giblin categorized the reversionary laws they identified based on their triggering circumstances: 1) a set period of time (from, for example, the date of the publication agreement or the author’s death), 2) a work’s out of print status, 3) the publisher’s active use of the work, and 4) other situations (such as if the publisher goes bankrupt).

Yuvaraj and Giblin will continue to examine these reversionary laws in more detail, but initially suggest that laws that allow authors to reclaim rights in the event that rights are not being exploited or if there are no/low sales of their works would help authors’ ongoing interests in their works while protecting publishers’ commercial interests. Read more about Yuvaraj and Giblin’s findings here.

Authors interested in learning more about reversionary laws around the world can explore the beta version of the Creative Commons Rights Back Resource. We encourage experts to contribute to the resource to help expand the database of country-specific laws.

Authors interested in learning more about terminating transfers under U.S. law can visit the Authors Alliance/Creative Commons Termination of Transfer tool at rightsback.org and the Authors Alliance Termination of Transfer resources page. If you are not eligible to exercise a statutory right to terminate a transfer of copyright, you may want to explore options for getting rights back by exercising contractual provisions or through negotiation.

Spotlight on Publication Contracts: Fair Use and Third-Party Permissions Clauses

Posted February 26, 2019
Shelf with colorful books and Authors Alliance logo on blue background

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 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.

In this week’s installment of our Spotlight on Publication Contracts, we’re celebrating Fair Use Week by highlighting an important aspect of your publication contract that defines whether your publisher expects you to obtain permissions for any third-party content you use in your book, or whether your contract explicitly allows you to rely on fair use.

It is common for book contracts to include terms requiring authors to deliver documents to their publishers showing that they have obtained all necessary third-party permissions: i.e., that the author is legally authorized to use any materials incorporated into the book where the copyright is owned by third parties. Permissions may be required to use someone else’s copyrighted work—such as artwork, illustrations, or photographs. However, under certain circumstances, an author’s use of a reasonable amount of another’s work to, for example, prove or illustrate the author’s point may be fair use, which does not require third-party permission or payment.

Often, permissions clauses do not acknowledge the right of an author to rely on exceptions and limitations to copyright like fair use. Instead, they may stipulate that an author “shall be responsible for obtaining written permissions from the respective copyright owners to reproduce materials from third-party copyrighted works.” Clauses like this do not explicitly allow you to rely on fair use. If you plan to rely on fair use to use third-party material in your book, you may want to ask for a clause like this:

If the Author uses any copyrighted text, tables, illustrations, or other materials in the Author’s Work, whether these are the Author’s own or those of another, and if this use does not meet the criteria specified in the fair use section of U.S. copyright law, the Author agrees to obtain and deliver to the Publisher proper and complete permissions to reprint such materials from the owners of the copyrights….

For more information about fair use, check out Authors Alliance’s Fair Use for Nonfiction Authors or the codes of best practices in fair use for a variety of disciplines.

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

Posted February 19, 2019

Shelf with colorful books and Authors Alliance logo on blue background
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

Shelf with colorful books and Authors Alliance logo on blue background
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

Shelf with colorful books and Authors Alliance logo on blue background

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.)