Tagged: open access

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.

pre-hurricane catch-up

As part of my pre-hurricane planning, I’m pushing out a few pages that I’d put together but not announced. So…

In celebration of Open Access Week, here’s the fruit of my negotiated contributor’s contract: my book chapter on audiences for Stuart Hampton-Reeves and Bridget Escolme’s collection, Shakespeare and the Making of Theatre (Palgrave Macmillan 2012). The collection as a whole is geared towards exploring the practicalities of working with Shakespeare as a play texts intended for performance; my contribution explores how to think about the relationship between audiences and actors and what role each plays in shaping the other’s response. I talk about a couple of productions at Shakespeare’s Globe (a King Lear and an As You Like It), Toneelgroep’s amazing Roman Tragedies, and a Folger Theatre show of Measure for Measure.

And in celebration of the upcoming Modern Languages Assocation conference (where I’ll be participating in two roundtable discussions, “Convergent Histories of the Book: From Manuscript to Digital” and “How Did I Get Here? Our ‘Altac’ Jobs”), I’ve compiled a list of book history-related sessions. Please let me know if I’ve missed any sessions, and I’ll add them to the list.

For anyone in the path of the storms, please stay safe. And for those of you outside the myriad zones of danger, you stay safe, too!

a new contributor’s contact!

In my last post, I discussed the contibutor’s contact I had been presented with for a chapter I have in a forthcoming collection. It was much more restrictive than I liked, including requiring that I ask them before I reuse my material in my own future publications and not allowing for any digital repository use at all. After emailing my editors and the publisher, and going through some back-and-forth, I’m happy to say that they presented an alternative contributor’s contract that I’m willing to sign!

Here are the key details in how this happened for those of you who might be contemplating this sort of negotiation:

I let my volume editors know that I intended to do this. I’m not sure they entirely understood my objections (one pointed out that he’d already put his contribution on his institutional repository; I didn’t counter that that didn’t seem permissible according to the terms we were given). But they also expressed willingness to pass my concerns and proposed amendment on to the publisher. After that informal exchange, I sent them a formal email detailing my concerns and attaching an amendment that I based on the CIC guidelines so that they could forward it to their contacts at the publishing house.

The initial response I got from the publishers was not encouraging. It laid out in fairly defensive language why their contract was structured the way it was, the reasoning having mostly to do with protecting their financial investment (“we can only publish this because we’re counting on multiple years of sales to break even and that won’t happen if there are free bits floating about!”1 ) but also expressing concern that any agreement they made with me couldn’t take precedence over their contract with the volume editors. But they also asked for clarification on what exactly it was that I wanted to be able to do.

So I sent the following response:

I have two primary concerns, both stemming from the fact that my contribution is my intellectual property and the result of a lot of time and effort into getting the substance of it right.

The first is that I want to be able to reuse my contribution in my own work without asking for prior permission. If I want to expand this contribution into a longer article or if I want to incorporate it into a monograph that I am writing, I will of course credit its original publication in XXXX. But since this is my intellectual property, I do not want to cede the right to reuse it in my future publications.

My second concern is that I want to be able to reuse the text of my contribution and share it on my own or an institutional repository so that I am assured of continued availability and its being part of the scholarly conversation. I understand that Publisher  has made a financial investment in the publication of the book, including this contribution. And I would agree to an embargo period in which I do not share the text of my contribution. But I do not see the availability of the text of my contribution as an impediment to the collection’s marketability, especially given what I know about Publisher’s preference for collections in which the whole is greater than the sum of its parts. Indeed, some studies have suggested that making parts of a book, or even an entire work, available freely online have resulted in higher sales, with the free samples functioning as a marketing platform for the entire work; Kathleen Fitzpatrick’s Planned Obsolescence (NYU 2011) is one example of a work that has much higher sales than anticipated in part because the availability of the work online has driven interest and generated sales. More importantly, while I see making parts of  the text of a book available online for free as generating interest in and sales for the book, I also see it as a way of protecting my own intellectual investment in this work. Should Publisher no longer be interested in distributing this book, or in my contribution to it, I need to still be able to have my work be part of the scholarly conversation. My being able to place a copy of my text in my own or an institutional repository ensures that my own investment in this piece is protected.

And then I waited. Their response, when it came, was essentially, “Hey, it turns out that another division has something that says nearly exactly this!” The key, apparently, is that I was dealing with the textbook division, which did not have provisions to handle this sort of permission, but the monograph division did.

Here’s what the new contract includes:

  • specific permission to reuse my piece in my teaching and to distribute to colleagues for their personal use (though not in any systematic way);
  • specific permission to reuse my piece after publication and pending notification to the publisher in other works I’ve prepared that are not direct competitors to this one;
  • and specific permission to post my pre-copyedited piece on my website or an institutional repository as long as I’ve notified the publisher; there is no embargo before I can post my piece.2

So, yay! This is hardly groundbreaking, but it lets me do what I want to do, which is archive my text here and to potentially reuse it in my grand collection of my writings (which, you know, is surely imminent). Keep your eyes open for when the book is finally out in print, when I’ll share my piece here. And then prepare to be so excited about it you’ll go out and buy a copy for yourself and ask your library to buy it too!3

My take-away from all this is as follows:

  • Always ask for what you want. They can’t say no—or yes—until you do.
  • Be clear about what you want. I found Paul Fyfe’s comment on my last post helpful in this regard.
  • Know what your exit point is. I knew what I was prepared to negotiate on and where my line in the sand was, which took the anxiety of negotiating out of the picture.
  • Be polite and persistent. If they don’t say yes on your blanket request, spell out precisely what you want to be able to do and ask if another division might have an agreement that is suitable.
  • Finally, ask for help from your colleagues! I am hugely grateful for the recommendations I got here and on twitter on how to go about this. And I’m extra hugely grateful for my conversations with Kathleen Fitzpatrick, who was really generous in helping me work through this.

And one plea to all of you: Ask for what’s in your right to have. Please do this. And please tell us about doing this. Scholarly publishing is in a world of change right now, and we are all finding our way. My experience is that most publishers are finding their ways just as much as most authors are. The more we work together and share our experiences, the more chance we all have of finding a fair way forward.

 

 

  1. n.b.: This is not an exact quote. []
  2. It’s worth noting that this is a contract with a UK publisher and that copyright in the UK is assumed to remain with the author, so that was never really something I had to battle over. []
  3. One small note: I hadn’t named the publisher while this was happening because I believed that was going to make negotiating in good faith difficult. But I’ve linked to the forthcoming collection and, really truly, I believe it will be a good one. []

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.