more lessons on negotiating a contributor’s contract

So the start of Open Access Week seems like a good prompt to share with you my latest round of negotiating with a publisher for a better contributor’s contract. I’ve written about earlier versions of this exercise before, from the initial steps to its happy conclusion, but so far it’s not something that feels natural and I repeatedly hear from others that they don’t know how to go about this.

The most recent exercise involves a commercial press that does a lot of scholarly publishing and a collection of Shakespeare-related essays. The contract I was sent (one page via snail mail) asked me to assign copyright to the publisher in exchange for one copy of the finished collection, with no provision for archiving or distributing the piece for teaching purposes. Here’s the key language:

The CONTRIBUTOR hereby grants to the PUBLISHER the exclusive right to reproduce the Work in the Collection in volume, electronic and web form in all languages throughout the world during the legal term of copyright for the WORK.

… under this Agreement the CONTRIBUTOR shall assign all rights in the Work to the PUBLISHER and the copyright shall be in the name of the PUBLISHER.

Given my previous experience, I contacted the editor of the volume to share my discomfort with the terms of the contract. I didn’t have a way of contacting the publisher—the note accompanying the contract had only the first name of someone who put it in the mail with no further means of tracking her down. So I asked my editor if he would put me in touch with the publisher (this is the method I followed last time). He volunteered to take the conversation up with them if I would share with him some examples of acceptable contracts. So I sent him what I’d signed the last time and went back to carrying on with everything else in my life.

This is where things got muddled and drawn out. I’d left the ball in his court and either he or the publisher forgot all about it until six months later, when my editor wanted my final version. I reminded him that I was waiting to hear from the publisher about an acceptable contract before I was dedicating time to polishing the essay. So now add in another month of waiting to hear from the publisher.

After the second time he asked me for the essay without my having been contacted by the publisher, I asked for the contact information to talk with the publisher directly. And things picked up steam immediately. I emailed the publisher with a brief statement of my desire to move quickly on new terms for a contract:

Dear PUBLISHER,

I am writing about my contributor’s contract for an article to be in COLLECTION. As you know from EDITOR’s earlier communications, I have expressed to him my unhappiness with signing a contract that assigns copyright and all associated rights to PUBLISHER. I am eager to move forward with settling this issue, so I am writing directly to you to see if we can find a resolution.

Since I have not received a new contract from you, I thought a faster way to proceed would be for me to attach an addendum to the original contract you sent. I have chosen an addendum created by SPARC, the Scholarly Publishing and Academic Resources Coalition (http://www.sparc.arl.org/). The addendum was created for use with journals, but it also works well for edited collections. In the interest of moving our conversation forward quickly, I have attached a copy of that addendum to this email so that you will have a chance to review and respond to it.

I hope that this will provide us a way to finalize the contract so that I can pass my contribution onto EDITOR for inclusion in his volume. It’s a wonderful collection and I will be proud to be a part of it.

yours,
etc.

Her immediate (within a couple of hours) response to my email was to send me the boilerplate of their alternative agreement. It let me retain copyright while granting them the exclusive right to reproduce and/or distribute my contribution. I was almost satisfied, but not entirely, so I wrote back:

This template is generally fine. But I do typically ask to retain the right to circulate my work for teaching purposes (non-commercial, of course) and to archive my work on my website (also non-commercial, naturally). Can we add in clauses to that effect?

And her again immediate answer was, Yes, how about adding in this clause?

And so, dear reader, I signed the contract. Here’s the key language in what I ended up with:

You grant to us (the Publishers) the exclusive right both to reproduce and/or distribute your Contribution (including the abstract) ourselves throughout the world in all languages in printed, electronic or any other medium, and in turn to authorise others (including Reproduction Rights Organisations such as the Copyright Licensing Agency and the Copyright Clearance Center) to do the same, in consideration of one free copy of the published Volume which includes your Contribution.

As is customary, after publication of the Volume and upon your written request, we will grant permission for the republication of your Contribution in any recognized scholarly or professional journal or book, including any work by you, subject to full acknowledgment of first publication in English by the Publishers in the present Volume.  Third parties wishing to use the Work in a journal or book may be required to pay a permission fee for such use.  In cases where the republication of your Contribution is in a publication written or edited by you, whether singly, jointly or severally, the fee will be waived.

Three months after first publication of the Work, the Contributor shall have the non-exclusive right to post the Work on his/her personal/institutional website subject to the inclusion of the copyright notice, full acknowledgement to the PUBLISHER, and the Work shall not be made available for sale. In addition the Contributor may circulate the Work for non-commercial teaching purposes only.

Copyright in the Contribution shall remain yours and we will acknowledge this in the Volume.

So I think this is a happy ending. I retain copyright, the ability to self-archive after a very short embargo, and the explicit right to circulate for teaching purposes.

The lessons I take from this round of negotiating are the following:

1.  Publishers will often (if not always) have alternative agreements prepared and waiting in the wings. They ask for more than they need but they’re ready to present fairer terms.

2.  Don’t let your editor be in charge of the process, even if they say they want to be. As well-meaning as they might be, they’re usually not going to fully understand what you want and they have a lot on their plates. Do get contact information from them so that you’re dealing with the correct person at the press and do keep them in the loop, especially if you run into problems.

3.  I learned this last time but it’s worth reiterating: know exactly what it is that you want. The clearer you are with the publisher about what you need, the easier it will be for them to grant it. And know, too, where you draw the line. I’d prefer not to have any embargo (last time, my piece wasn’t embargoed), but I would’ve accepted a 1-2 year embargo. It’s possible I might’ve assigned copyright to them if I’d kept a long list of rights to myself, but I wasn’t eager to go down that path, so I was prepared to withdraw from the collection.

4.  The other big point I want to make, especially to those of you who, like me, might be conflict-adverse: this is not a conflict! In most instances, you and the publisher want the same thing: to get your piece out there! The request is easy to make—I’ve included my correspondence so you can cut-and-paste and adopt it for your own purposes. Publishers will have encountered these requests before and in most cases, they will have responses and better contracts ready. If you’re unsure of how to move ahead, read what others have done (there are some great comments and links on the first of my posts in this series).

And my plea to you is the same as it was last time I wrote about this: PLEASE DO THIS TOO! Read your contracts, ask for what’s yours, and we will all be happier. Retaining copyright and the ability to archive your work does not impede publishers’ ability to make a buck off their publications. But it does make it easier for you to circulate your work in the ways that you want to. I don’t think personal or institutional repositories are the ideal way to make scholarship open and affordable, but it’s undoubtedly better than leaving your work owned in perpetuity by someone else.

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