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.

11 thoughts on “working with a contributor’s contract

  1. My sense (based on my last few experiences) is that your plan is the right one: you need to let the editors know what you’re doing, but then you need to push back against this agreement. Most presses ask for everything in their boilerplate, but are willing to negotiate when asked. The press in my case actually gave me more than I asked for, which is good.

    As to talking with the volume editors: be apologetic; let them know that you don’t want to hold up the book; but let them know that because of positions you’ve taken publicly/your relationship with your employer/your general good conscience about these things, you can’t sign the agreement as it stands.

    And then either (1) edit the contract you’ve been given to include “except as contained with the attached addendum,” and return both contract and addendum, and see what happens, or (2) write the press representative involved and say that you can’t sign as it stands, and see if the press has a preferred way of creating an institutional repository-friendly agreement.

    And stand your ground. The rights you are asking for are not unreasonable; they are yours.

  2. I found myself in a similar predicament several years ago and followed almost the same process you’re contemplating. However, when I notified the editors of my plan and my dislike of the boilerplate publishing agreement, I accidentally copied all of the contributors to the book. As a result, several others popped up and said “I’ve been thinking the same thing and have been wondering what to do.” The editors then weighed in behind us with the publisher. Ultimately, we all, even those who had already signed the first agreement, got new ones that were more favorable. This is the boilerplate version of that new agreement I eventually signed:

    http://www.ala.org/acrl/sites/ala.org.acrl/files/content/resources/forms/Mono%20Chap%20Author%20-%20A.pdf

    The fact that this book is already in production *may* give you a bit more leverage in this situation. Of course, if the book were already being printed, you might have a bit more.

    Good luck!

    m

  3. Jake Linford at the FSU law school addressed authors’ rights during an OA lightning talk at the library. He said it’s always okay to ask and, conversely, “if you never ask, the answer is always no.” Key points from his presentation:

    What Does the Publisher Need? What Should I Avoid?
    * A publisher provides you with imprimatur – a signal that your article is of a similar quality to other works published in its pages / posted on its website.
    * In exchange for that, it needs some period of exclusivity – that’s what sells subscriptions and drives eyes to its site.
    * But it may not need perpetual, exclusive licenses, and those licenses leave you with the least flexibility – anything not expressly transferred back to you stays with the publisher.

    What Should I Ask For?
    * Digital distribution / display
    *– The right to continue to keep earlier drafts of the article online, in a freely accessible location
    *– The right to post the article in its final version online at some point

    * Revision and physical distribution
    *– The right to update the article
    *– Include it in a subsequent book
    *– Modify it for inclusion in a later journal

  4. I’ll add to KF’s excellent advice that I’ve worked with faculty who have been successful negotiating for specific rights, rather than general ones. If the publisher doesn’t want to accept a standard author rights addendum, you can come back with what you specifically want to be able to do (post a copy in a repository or republish as part of a monograph) and intransigent publishers will often ok specifically enumerated rights. Not the best option, but a fallback.

    And I second the importance of talking to volume editors first both as a courtesy and because you may find that you have allies.

  5. Thanks, all. These are helpful suggestions. Now if only I hadn’t already emailed my editors I could have accidentally hit reply-all! Really, though, these are helping me work through my response. My original inclination to do what Kathleen did–including the CIC agreement as a superseding appendix–has been momentarily stalled by my trying to work out if that would take care of the waiving my moral rights as Author that I mention in my last point above.

  6. You’ve already gotten excellent advice here, so I’ll add only that *you* are not the one who risks delaying the book. If the publisher had provided this agreement sooner, you could have responded in a more leisurely way. Perhaps a clerical oversight, but it’s one that puts you in an uncomfortable position. I agree with all the others here that you should ask for the all the rights you want. It’s your work!

    Good luck, and thanks for sharing this dilemma — the more that authors know what they should ask for, the less likely publishers are going to be pulling this kind of crap. At least I hope so.

  7. Good for you for asserting your rights! For another similar anecdote, but without a “happy ending,” I wrote up an account of a press refusing to change their contract terms and my subsequent withdrawal of the chapter. I hope you have a happier outcome!

    • Oof, that sounds painful, primarily for putting your editors in the middle of the discussion. My biggest concern is not leaving my contribution out of the collection (as you say, it’ll be read more if I post it here than if it’s published there) but is making this unpleasant for my editors, who are well-intentioned and who have worked really hard on this volume. I’m flexible on all sorts of details, so here’s hoping that the publisher is willing to at least have a conversation!

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