working with a contributor’s contract

6 July update below

So, on top of everything else I’m dealing with at the moment, I just got an email requesting a super fast turn-around on a contributor’s agreement for a chapter I wrote. The book collection has already been accepted and is already in production—it’s really not clear to me how things got this far along without contributor’s agreements being worked out. But it has. So here’s my situation: this agreement sucks. It leaves the contributor with no rights. It doesn’t even let me republish my own work in, say, my own monograph without asking the publisher for permission. Here are the key details:

• “Author grants to the Publisher for the full term of copyright and any extensions thereto, the exclusive right and licence to edit, adapt, publish, reproduce, distribute, display and store the Contribution . . . in all forms, formats and media whether now known or hereafter developed (including without limitation in print, digital and electronic form) throughout the world”
• Author grants to the Publisher the exclusive right and licence “to translate the Contribution into other languages, create adaptations, summaries or extracts of the Contribution or other derivative works based on the Contribution”
• “The Author shall only be entitled to republish the Contribution with the Publisher’s prior written permission which shall not be unreasonably withheld, and provided that, when reproducing the Contribution or extracts from it, the Author acknowledge and reference first publication of the Contribution in the Work.”
• “The Author irrevocably and unconditionally waives the Author’s moral right as provided in the Copyright, Designs and Patents Act 1988 to the extent the Publisher reasonably deems necessary to allow the Publisher to exercise and license the rights granted to the Publisher under this Agreement.” update: This sentence is preceded by one in which the Author asserts moral rights, so it looks as if I’m not being asked to waive all my moral rights, just the ones the Publisher wants me to. (I am, crazily, reading a bit more on what “moral rights” might mean by speed-reading the Act referenced and linked above.)

Yup. I don’t even know what that last point means, but it doesn’t sound like it’s in my favor.

What’s not in this agreement? Any statement that the Author retains copyright over her contribution or that she has any ability to store her work in an institutional or personal repository. I’ve put up a pdf of the whole agreement here, with details blacked out, in case you’ve never seen one of these before and are curious. And if I’m missing something even more horrible, do let me know.

Here’s my question to you, dear readers: How should I proceed? I don’t want to sign this. Ideally, what I want, is an agreement that lets me post my contribution on my own repository (aka, this website) and to reuse my own material in any collection of my own writing that I may put together. What can I realistically get? Probably the latter point, maybe some version of the former point, with some sort of pre-print provision and perhaps after some period of embargo.

Kathleen Fitzpatrick went through something very similar to this and was able to negotiate a better agreement by using the CIC Author’s Copyright Contract Addendum. My inclination is to try a similar approach. My first step is going to have to be letting my volume editors know that I’m doing this. I don’t know that they’re going to be happy, given that the ball is already rolling on this. And I don’t want to delay the book that they’ve been working so hard on for so long (they first got in touch with me in 2008 when they started mulling it over; I think I got my draft chapter to them in the spring of 2011). On the other hand, I just can’t bring myself to sign this as is, and it’s a publisher that I’ve already had unhappy dealings with so I’m happy to wrestle over this.

I’d welcome any suggestions you have if you’ve done anything along these lines, and I’ll keep you posted on what happens!

UPDATE 6 July 2012

I’ve just emailed an addendum based on the CIC one linked above to my editors to pass on to the publisher (the only real change to the CIC addendum is the 4th point):

1. The Author shall, without limitation, have the non-exclusive right to use, reproduce, distribute, and create derivative works including update, perform, and display publicly, the Article in electronic, digital or print form in connection with the Author’s teaching, conference presentations, lectures, other scholarly works, and for all of Author’s academic and professional activities.
2. After a period of six (6) months from the date of publication of the article, the Author shall also have all the non-exclusive rights necessary to make, or to authorize others to make, the final published version of the Article available in digital form over the Internet, including but not limited to a website under the control of the Author or the Author’s employer or through digital repositories including, but not limited to, those maintained by scholarly societies or funding agencies.
3. The Author further retains all non-exclusive rights necessary to grant to the Author’s employing institution the non-exclusive right to use, reproduce, distribute, display, publicly perform, and make copies of the work in electronic, digital or in print form in connection with teaching, conference presentations, lectures, other scholarly works, and all academic and professional activities conducted at the Author’s employing institution.
4. The Author retains copyright and asserts her moral right of paternity in the Contribution. The Publisher is prohibited from subjecting the Contribution to any derogatory treatment as defined by the Copyright, Designs and Patent Act of 1988.

My editor seems a bit baffled but supportive, so we’ll see what happens next! I did also send a separate email requesting that all contributors to the volume have the opportunity to receive this addendum. I’ve seen one reply-all email that suggested that person was happily signing and returning the publisher’s agreement, but I don’t really know how the others feel. And I do think that, as Monica comments below, that if more of us actually read these things and understood their implications, we wouldn’t sign them so often!

UPDATE 8 July 2012

While we’re waiting, some links to similar adventures:

Martin Paul Eve is asking Taylor & Francis to let him use their more author-friendly agreement instead of the standard boilerplate. They have this option hidden away in their arsenal already, so I’d guess this will go well.

Jeffrey Pomerantz wrote up in full detail his engagement with Taylor & Francis for a better agreement for a journal article he co-wrote. He ends up, after much back-and-forth, being offered their License to Publish form, rather than the Copyright Assignment Agreement, but it still includes an 18-month embargo before a post-print version can be posted. They end up withdrawing their article from the journal, and posting it openly as a Google Doc.

Jason Mittell, as he notes in his comment below, wrote about his experience two years ago with a contribution to a collection to be published by McFarland. It sounds pretty badly handled on the publisher’s part—they refused to speak to him directly, so all the negotiations had to pass through the volume’s editors, putting them in a pretty wretched position—and the upshot is that Jason withdrew his piece.

I’d read the PomeRantz piece last summer, and then forgot about it in my current flurry of activity. I’m sure there are other accounts out there and I’d love to hear about them. I have heard from many folks that challenging the boilerplate contracts hadn’t occurred to them or that they didn’t know where to begin that conversation until reading accounts like these.