Publishers, Academics and the Battles over Copyright and Your Rights

Academic publishers and academics live in a symbiotic relationship. Even university presses are dependent (this is the most delicate way of putting it) on profits and they earn such from our writing. Without us, they would be out of business. And we, the writers, even in the age of the internet, need publishers. They provide an important service in a variety of ways. You would not be reading this Editorial if this were not the case.

This symbiosis would suggest a relationship of equals; with few exceptions, for most of us this is hardly the case. We approach publishers like supplicants before an all-powerful despot. The Road to Canossa was a spring jog by comparison. Sounds familiar? It’s always them doing us a favour by publishing our book rather than us doing them a favour by giving them our work. Sounds familiar?

One area where this disparity of power is most noticeable is in relation to copyright and associated rights over the fruit of our labour. There is much that is unacceptable, driven by inertia (‘that’s how we have always done it’), caprice (yes), and greed.

The issue of copyright differs according to the nature of the work published, monographs, edited books, and journal articles being the principal cases.

I plan to take each in turn and start with what I consider the ‘easiest’ case – contributions to edited books. Nota bene: I will not discuss here copyright in the edited book itself, but just in the individual contributions thereto.

This is the most banal of occurrences. It is hard for me to believe that readers of this Editorial would not have found themselves in this situation at least once, and with the years passing countless times. You are invited to contribute to an edited book. For some irrational reason you agree and eventually consign your contribution. In most cases the only editing of your work that will take place is copy editing, but that is a movie we have already been to (see ‘On My Way Out – Advice to Young Scholars III: Edited Books’).

As the date of production nears, you receive, typically directly from the publisher, sometimes from the editors of the book, a request to sign the copyright form.

The following is a typical form – it happens to be from one of the most distinguished publishers in our field.

Let me walk you through the salient points.

Your eye draws you to Clause 2.2, which fills you with joy:

The copyright in the Text shall remain vested in the Contributor.

Of course, you think. It is my work, my thoughts, my brilliant ideas etc., etc. Hold your horses! What Peter giveth Paul taketh. You skipped a clause. Take a deep breath (if these matters bother you), settle down and read:

The Contributor hereby grants to the Publisher for the legal term of copyright including any renewals and extensions the exclusive and irrevocable right and licence to produce publish display communicate to the public and exploit and to license the production publication display communication to the public and exploitation of

[…] the Text

[…] any part of the Text

[…] any new edition or other adaptation or any abridgement of the Text …

in all languages throughout the world in volume form and in any other form or medium whatsoever including (but not by way of limitation) any form of electronic publication display distribution or transmission (whether now known or hereafter invented) that the Publisher may wish.

The rights granted in this Clause may be exercised by the Publisher, and its wholly owned subsidiary [name of distinguished publishers] and include without limitation the right to exercise and grant sub-licences of all translation and subsidiary rights on such terms as the Publisher may determine (my emphases).

Copyright, which remains vested in you, has just lost practically all meaning.

You might be the freeholder of the field, but you have granted a lease that deprives you of any future benefit of your work. This is not all: read the following sweet clause:

The Contributor agrees that the Publisher and/or the Editor may amend and alter the Text in such manner as the Publisher and/or the Editor may reasonably consider necessary.

There is no mention of receiving your consent to any such changes. Imagine this were a painting or a photograph and let your imagination work.

You should be rubbing your eyes in disbelief at all of the above and vowing to read more carefully what you sign the next time. The disparity of power is so great that now it is common practice for authors to receive the copyright form online and, like some software you are buying, and be given the simple option of clicking Accept or Reject.

In a flair of generosity, the publisher in Clause 3 allows that:

Provided that full acknowledgement of the Work is given and that such use does not affect prejudicially the sales of the Work, the Publisher shall not object to the use by the Contributor of parts (being less than the whole or a substantial part) of the Text in reworked form as the basis for articles in law journals, conference papers or internal training materials or newsletters.

So, to give but one example, should you wish to publish in book form a collection of your essays, that would be a no no. One publisher once required that I pay them for photocopying one of my book chapters for the use of my students.

Our example copyright form happens to come from a UK publisher; mindful of the English doctrine which provides that a contract with no consideration might not be enforceable, we find the clause entitled Remuneration (you should be sitting down):

In consideration for providing the Text for publication in the Work on the terms of this Agreement, the Contributor shall be entitled to receive on publication one presentation copy of the Work.

If you ever wondered what a peppercorn as consideration meant, here you have it.

I have from time to time asked colleagues why they agree to sign such an unconscionable term. (And I remind you that I am here only discussing contributions to edited books. Different considerations may apply to other learned publications.)

The three most common answers I receive are the following:

1. I never read it. I just sign. What’s the point? It’s like pressing ‘I agree’ on the latest download of some computer program or application. (Hey, you are not the author of that program or application).
2. I sign and don’t care. I do with my work what I want. (True most of the time, but not always. If you want to republish in a different language in another book, or in an anthology, the new publisher might request that you obtain a copyright release. Then things might get complicated.)
3. Well, they are entitled to something, after all they published my work. They took the risk.

No, this is all Alice through the Looking Glass. Yes, publishers, including university presses, are not charities. They need to cover their costs and turn a profit. But of what risk are we talking here? They are pretty shrewd in assessing the minimal sale potential of a book and with a simple formula into which this figure plus the number of pages are inserted will price the book so as not to show a loss. Any book whose sales exceed this estimate is pure gravy. And the occasional bestseller has them laughing all the way to the bank. Things might go bad now and again, but the unending plethora of edited books is proof enough that we need not worry about their bottom line.

Now you might get the impression that my concern is with economic exploitation and ‘iniquity’. Not in the least. Royalties, if paid to contributors of edited books, would be derisory – enough to pay for a nice dinner (without wine). It is the restriction on our sovereignty over our works that riles me. As mentioned, I would have some empathy if I could imagine any scenario where subsequent use of such a piece, for example placing a version in a well-read journal (since edited books are in many cases cemeteries), would compromise the sale of the book or any other rent the publisher might obtain from it. I have discussed this at length with two of my publishers – they were unable to come up with any realistic scenario where this would be the case or any actual history where it was the case. I am willing to be educated but not by outlandish hypotheticals.

Yes, there is the issue of translation and publication in other languages. But if you consigned an article in English, why should you be asked to cede your rights in all other languages? Again, it is not about the money. Having to obtain translation rights (over your own work!) for which the publisher will always extract their pound of flesh has a chilling effect on the possibility of translation. I speak from considerable experience.

So, what’s to be done? For many years I have adopted the same policy when confronted with these copyright forms.

1. I strike out the ‘all languages’ clause and have the agreement apply only to the language of the chapter submitted.
2. I add three little letters to one word in the offending Clause 2.1 and its brethren. I insert by hand the word ‘non’, so that exclusive becomes non-exclusive. They still have all the rights they want, universally and irrevocably, and the editors of the book may, appropriately, give them exclusive rights to the book itself as whole. But I also retain irrevocable freedom to make any use I wish with the fruits of my labour.

Now, you might be thinking the following: You, JW, are an established scholar and you might get away with this, but not everyone is in that position. This is true. It might not work for young scholars at the beginning of their career. But there are hundreds and thousands of ‘established’ scholars, and in practically every edited book there are a few of those old geezers. And of course, there are the editors of the volume who are in a much stronger position than any individual author to negotiate a fair copyright clause for the individual contributions. If they, we, all routinely followed my practice or something similar, at least in relation to this form of publication, the oppressive draconian cession of rights would wither away.