Clark 39;s Publishing Agreements A Book Of Precedents

[Reuquen Boyett]

Well, the text is as invaluable as ever, and includes just about every kind of agreement any publisher might want. Currently, all the printed precedents (agreements) are available to download from a Bloomsbury site. However, I am not sure that many people will want to read the text of all the precedents in print, unless they actually want to use one. Perhaps one option might be to pull out the text of the precedents and retain them as electronic downloadable files? Maybe this would enable the publisher to reduce the not inconsiderable retail price of 170 to something slightly more manageable.

As with previous editions, all the royalties from sales of the book are donated to the Book Trade Charity, which might make you feel better about spending so much on one book. I do wonder, though, how long it can go on being produced as a printed volume. Perhaps the next edition might see an online subscription database instead? Who knows what developments in publishing the next five years might see!

"This book should be on every publisher's shelf" The Bookseller

Clark's Publishing Agreements has long been the 'must have' legal resource for the publishing industry. This comprehensive book provides 25 model agreements, from author agreements to merchandising rights to online licensing to e-book distribution to text and data mining.

Whether you are an experienced drafter of publishing agreements, or new to the industry, Clark's Publishing Agreements: A Book of Precedents will prove invaluable in ensuring that your publishing agreements are expertly and effectively drafted.

For the Eleventh Edition, all the precedents, explanatory notes and appendices have been thoroughly revised to take account of the latest developments including:

- Precedent for a social media influencer
- New precedent on Open Access book author agreements
- Coverage of audio deals, including arrangements with narrators
- Electronic download of the precedents for you to adapt and use in your contracts

This new edition will appeal to the legal practitioner market, copyright practitioners, general IP practitioners, media law practitioners, in-house legal market, publishing houses, and literary agents.

This is a difficult distinction for faculty authors to understand. My colleagues and I talk about it all the time with our faculty authors, but they persistently do not see much difference between the two versions, so they sometimes believe that there is little reason to observe the distinction. Publishers think (or at least say publicly) that they add a lot of value to submitted manuscripts, but a great many authors do not see it that way.

The problem with the first sentence is that academic authors are really not like journalists. Many journalists are full-time employees of their newspapers, so that their articles are owned by the newspaper from the start, as works made for hire. On the other hand, academic authors are not employees of publishers and their writings are not work for hire. Their rights (as well as those of some free-lance journalist) are entirely governed by the contracts they sign. The important implication of this is that academic authors have much more control over the rights they surrender and retain than do journalists; faculty members can simply refuse to transfer copyright (because they own it unless and until it is transferred in writing) or they can negotiate the exact terms of publication, transferring or licensing some rights and holding on to others.

When we turn to the issue of article versions, the situation is the same. Each version is a revision of the original, and the copyright is the same for all these derivatives. When copyright is transferred to a publisher, the rights in the entire set of versions, as derivatives of one another, are included in the transfer. Authors are not allowed to use their post-prints because the rights in that version are not covered in the transfer; they are allowed to use post-prints only because the right to do so, in specified situations, is licensed back to them as part of the publication agreement.

Once a copyright transfer has been signed, all of the rights that the author may still have are because of specific contractual terms, which are usually contained in the transfer document itself. In short, these agreements usually give all of the rights under copyright to the publisher and then license back very small, carefully defined slivers of those rights back to the author. One of those slivers is often, but not always, the right to use a submitted version, or post-print, in carefully limited ways. For example, many publishers allow posting of the submitted version only on defined websites, usually a personal site or institutional repository. Often the contracts also allow posting of the submitted version only after some lapse of time. These restrictions would not make sense or be enforceable IF the author retained some kind of copyright in earlier versions, as The Economist implies. But they do not; they have only, and exactly, what the contract gives back to them.

One important lesson to be gained from this correction of the language of The Economist article is that publication contracts are extremely important. They entirely determine what an author can do with his or her own work in the future. For many academics, signing such agreements is a very bad idea; they should be negotiated, either to make them licenses to publish, which allows the author to retain her copyright, or to be certain that the rights that are licensed back are broad enough and flexible enough to permit the future uses the author wants. Before the transfer, the author has a good deal of leverage to negotiate these agreements, but afterward she has very little. So it is vital to pay attention to the agreement itself and not rely on a false sense of security based on a misconception of how copyright works.

[Hat tip to Will Cross and to Lisa Macklin of Emory, who discussed the implications of this particular mistake with me by e-mail and provided some ideas incorporated herein. Will qualified his statement quoted above by acknowledging that pre-prints, especially, have a longer history, but the use of these distinctions as contractual dividing lines is related to recent pressures on publishing.]

I have been wondering about licensing for green OA so thanks for the clarification. I have been putting CC-BY licenses on the manuscripts I contribute to our repository, which is clearly not correct if I transferred copyright to the journal.

That may be true in US law (I really do not know), but is not true in UK law. The author retains the rights to earlier versions of the article; only the rights in the final version get transferred to the publisher if the author (foolishly) signs the copyright assignment..

I would really like to see the legal basis for this argument. I find it difficult to accept that UK law is so completely different from the law in the U.S. Most authors do sign a written copyright transfer, and those agreements cover all works that are derivative of each other. Only when we realize that do policies like those of Elsevier and Wiley, which proscribe specific permitted uses of all of the different versions, make sense. They are licenses back to the author after copyright in the whole work has been assigned. I agree it is foolish, but I believe it is still the norm.

For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.

Foreign rights is the term given to the licensing of content to overseas publishers. Once in receipt of a licence overseas publishers are able to produce their own edition of the content for distribution in their market or territory.

The sale of translation or other rights can be lucrative if handled efficiently. Depending on the content being licensed and the market to which it is being licensed, the value of each deal could range from a few hundred pounds to tens of thousands, or even more. Most publishers account income from subsidiary rights licencing as bottom line profit. This can make rights income particularly lucrative.

Licensing rights can help you dip a toe in the water of potential export markets. With virtually no outlay you can get some of your content out in the market and see how it performs. You can start to get a sense of how that market operates, the kinds of content that works well, promotion and pricing strategies and what the distribution channels are. If you are thinking about entering new markets, you might find that licensing is a good way to help you get more of a handle on the opportunities and risks.

Whilst publishing is first and foremost a business, for most of us, it is very much more than that. Published content takes people on journeys, it opens up new worlds, it educates, informs, celebrates and entertains.

Increasing local language content can also help the language itself to thrive. Indeed, in some countries governments make grants available to support local publishers in producing local language publications in order to encourage its use.

The flip side of licensing is acquiring or buying rights. The relationships built up when licensing rights can often result in being content being pitched the other way. Acquiring translation rights from other languages can give English language publishers the opportunity to freshen up their lists, access exciting new authors and bring new ideas and perspectives from cultures across the globe.

The process of licensing foreign rights is reasonably complex. In this section we have broken it down into a step by step process. We will look at each step in turn and highlight the practical considerations involved for each.

Well before you can consider licensing rights, you need to ensure that you have something to licence. Under copyright law it is the creator who is the first owner of a copyright work, but they can assign their copyright or license elements of it to others. In publishing, content is usually acquired from authors via an agreement often referred to as the Head Contract.

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