Acquiring rights from the author: key aspects of the author-

publisher contractLynette Owen, Copyright Director,

Pearson Education Ltd, United Kingdom

Why have a contract?

• Publishers depend on authors for content, then add value by designing, producing and bringing works to market to generate revenue for authors and publishers

• Publishers need a clear grant of rights from each author

• Contract sets out rights and responsibilities of each party and is legally enforceable

• Contracts are longer and more complex now• In the UK there is no legislation covering what

should appear in author contracts

The contract (1)

• Starts with date and names and addresses of both parties (will apply to heirs and assigns)

• A description of the work and format and deadline for delivery to publisher

• Author must supply details of any third party copyright material to be quoted

• Publisher can withdraw from publication if author fails to meet delivery deadline

The contract (2)

• Publisher can withdraw from publication if work does not meet required specifications and/or standard and if author cannot remedy this

• Author may be asked to amend any content which might lead to legal action

• Publisher will publish at their own expense and by agreed publication date

The contract (3)

• What rights are being granted to the publisher? Could be full assignment of copyright (common for educational and academic works); trade authors usually grant exclusive licence for agreed “bundle” of rights for agreed territories and for agreed period of time

• Payment to the author: common model is an advance against royalties on sales. Advance may be split into instalments on signature of contract, delivery and acceptance of manuscript, and publication

The contract (4)

• Royalties may be calculated on recommended retail price (trade publishing) with payment on net receipts for high discount sales

• Educational and academic publishers usually calculate all royalties on net receipts

• In the UK there are no formal rates for payment; depends on nature of work and status of author

The contract (5)

• Contract may include the grant of subsidiary rights e.g. reprint rights in original language, book club rights, extract rights to newspapers, quotation rights, translation rights, electronic rights, rights for the visually impaired. For trade titles, stage, film and TV rights may be retained by author’s agent

• Rights revenue will be divided with author in agreed proportions – author share may range from 50% to 90%

The contract (6)

• Publisher may mandate rights to national collecting society to handle copying short extracts through photocopying or scanning; revenue shared with author

The contract (7)

• Clear provisions for regular provision of sales figures and payment of royalties

• In the UK, accounting is usually twice a year with payment within 3 months of accounting date

• Authors registered for VAT should provide publisher with details

The contract (8)

• Provisions for dealing with any third party copyright material to be quoted in book – text, photos, illustrations etc

• In this model, publisher agrees to clear permission an pay fees up to an agreed amount

• Alternative models: author to clear permission and pay all fees; publisher to clear permission and pay fees but to set fees against author’s royalties

The contract (9)

• Publisher has control of all technical and business aspects of publication

• Some key authors may require approval of cover design

• Copyright in typographical layout of the book belongs to publisher rather than author

The contract (10)

• Author will be credited on book and any publicity material

• UK copyright law requires author to formally assert moral rights; publisher may print notice to this effect in the book itself

• Publisher will include copyright notice in book (required by Universal Copyright Convention)

The contract (11)

• Author provides publisher with warranty that book is original, is not obscene, indecent or libellous and will not lead to any legal action; indemnifies publisher against this. For non-fiction works, there may be additional requirement that any information in the book will not lead to injury or damage

The contract (12)

• Author will check proofs by agreed deadline; contract will specify maximum level of alterations permitted without charge

• Author will receive agreed number of free copies on publication

• Publisher can remainder books at low price after agreed period if sales decline; author has first option to purchase. Author will only receive royalty if remainder price is higher than manufacturing price

The contract (13)

• For non-fiction works which are likely to be revised, author to undertake revisions and provisions for publisher to employ someone else if author cannot undertake this work

• Original author will receive decreasing royalties if new authors are brought in for revisions

• Use of author’s name on revised editions

The contract (14)

• Publisher will be responsible for taking legal action against infringements and will share any damages awarded in agreed proportion with author

• Author can request return of rights if book becomes unavailable in any form

• Contract will terminate if publisher goes bankrupt• Any subsidiary licences can continue to run their

term

The contract (15)

• Publishers of educational, academic and professional titles may require non-competition clause

• Provision for arbitration in case of dispute• Contract covers complete arrangement; any

changes must be agreed in writing and signed by both parties

• Applicable law

The contract (16)

• Provision for delivery of any notices

• Definition of key terms

• Publisher can assign contract without consulting author if all or part of their business is sold

Agreement for book contributor (1)

• Description of contribution and details for format and delivery to publisher

• Warranty and indemnity from author

• Copyright assigned to publisher (common practice for multi-contributor books and permitted under UK law)

Agreement for book contributor (2)

• Author can republish contribution subject to permission from publisher

• Conditions for publish to accept work

• Provisions for editing and revision

• Provisions for proof reading

Agreement for book contributor (3)

• Author will be paid outright fee for contribution• Author will be credited• Author asserts moral rights (required under UK

law)• Author will receive finished copy on publication• Provisions for arbitration• Applicable law

Agreement with author of journal article

• Name of journal and description of article• Assignment of copyright to publisher• Provision for publisher to mandate collecting society• Warranty and indemnity to publisher• Assertion of author’s moral rights• Publisher to credit author• Provisions for acceptance of article by publisher• Right for author to reuse article for non-commercial

purposes