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                  PUBLISHING CORNER


                     Copyright, contracts, fees and royalties

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If your efforts have been successful, and a publishing house has said it would like to publish your
material, what kind of negotiation takes place, and what sort of terms are they likely to offer you? 
This topic is probably worthy of a whole PhD thesis, but let me try to provide some pointers.

COPYRIGHT

An idea as such cannot be protected by copyright (nor can a book title, by the way); but the form in which the idea is expressed (e.g. 
books, but also photographs, films, computer programs etc.) can be copyrighted. 

That means that not just direct quotation, but also paraphrasing and even organisation and presentation of material in a way which 
is close to that used by another author, may be covered by copyright; and permission may need to be sought from the original 
authors or their agents. (For more on copyright's relationship to plagiarism, see here.)

National copyright legislation protects that country's own nationals in the first instance – but the protection usually also extends 
to nationals of any other country which is a signatory to one or both of the international copyright conventions.

A copyright holder is generally said to have:

Economic rights

Essentially, the right to obtain appropriate financial reward for the work done. The aim is to balance fairly the rights of 
(i) copyright owners and 
(ii) copyright users.

Moral rights

   ‘Paternity’ (the right to claim authorship)

    ‘Integrity’ (the right to object to distortions of one’s work which may affect honour or reputation)

             –      These are less widely known than economic rights, but are increasingly protected formally by copyright legislation.

The general rule is that authors are the initial owners of copyright in their work. (One exception in many national copyright laws: 
if a work is produced by an employee wholly in the course of his/her employment, the copyright then belongs to the employer.)

In most countries, registration is not required; copyright protection exists automatically once the work has been produced. (Nor is it
necessary for the work to have been published.) However, if you are even slightly paranoid, you might want to be able to show that
you had produced a completed work by a certain date; some countries allow optional registration for this purpose, but a copy
deposited with your bank is another satisfactory way to achieve the same result.   

Owners of copyright can:

           assign the copyright (i.e. sell it outright) to someone else, such as a publishing house.

           or

           license someone else (e.g. a publishing house) to publish the work – but still retaining ownership of the copyright themselves.

In general, I would advise the latter, especially if you have submitted the material on an unsolicited basis. Some publishers argue 
that they need to control the copyright fully in order to protect it against piracy etc.; personally I am not convinced by this. 
(If you license you may well, however, be asked to authorise the publisher to take legal action on your behalf in certain defined 
circumstances. That is probably sensible, as they are likely to be in a better position to do that than you are.)

Publishers have a rather stronger justification for asking you to assign copyright where the material is commissioned – in other 
words, if they (rather than you) have initiated the project, and set up its basic parameters.

Copyright is not really a unity, but a bundle of divisible rights – to produce a hard cover version, to produce a paperback version, 
to produce an electronic version, to license the material on to another publisher, and so on.

These will normally be itemised in the draft contract you receive; it may make sense to grant the publisher a license for all of them, 
but if you think you can get a better return from some of the rights by offering them elsewhere, you are fully entitled to do so. 
(Of course, if you are too restrictive the publisher may conclude that the project is no longer financially attractive; so you need to 
consider the overall situation carefully.)

CONTRACTS

Soon after your proposal for a publication has been accepted, you are likely to receive a draft contract.

There is considerable pressure in many countries to write contracts in simpler English, but plenty of jargon can still be found, in 
publishers’ contracts as in others. It is important to read every word carefully, and to seek clarification from your contact at the 
publishing house if there is anything you do not understand.

A cautionary tale!

Here is a fairly alarming cautionary tale. 

When I first joined one publishing company, 
I read through its standard contract, 
and there was a clause which seemed to make no sense. 

I queried this, and it was eventually discovered 
that when the contract had been transcribed some time earlier,  
part of the clause had been omitted altogether.

So for several years authors had apparently been signing,
without complaint,
a contract containing a clause which they could not possibly have understood,
because it was nonsense!

One can only conclude that they did not expect to understand it!

Please make sure you do, before you sign.

What the contract should contain

The contract should normally include coverage of all the aspects listed below:

COPYRIGHT ARRANGEMENTS

  - licensed or asssigned?

- geographical areas covered (often referred to as “territories”)

            - languages in which the licensee may publish the material

            - arrangements if the publisher goes into liquidation, or is taken over

              (etc.)

DELIVERY OF MANUSCRIPT

            - by when?

            - in what form?

            - length

              (etc.)

          ACCEPTANCE BY PUBLISHER           

         
- any limitations on what will be acceptable?

ARRANGEMENTS FOR PROOFREADING

PUBLICATION BY PUBLISHER

            - by what date at the latest?

PERMISSIONS FOR COPYRIGHT MATERIAL USED (I.E. MATERIAL FROM OTHER AUTHORS)

            - who obtains permission, the publisher or the author?

            - who pays?

            - warranty to the publisher that there has been no plagiarism

RESPONSIBILITY FOR ARTWORK AND INDEX, IF ANY

            - who arranges these?

            - who pays?

PROMOTION

            - who has what responsibilities?

NEGOTIATION OF SUBSIDIARY RIGHTS (OTHER LANGUAGE EDITIONS, USE IN ELECTRONIC MATERIALS, ETC.)

            - by the author or the author's agent?

            - by the publisher? 

ARRANGEMENTS FOR REVISED EDITIONS

ROYALTIES (INCLUDING ADVANCES) AND FEES

            - arrangements for royalty or fee payments (accounting periods, when paid etc.)
          
            - division of income on any subsidiary rights payments received (itemising each separate kind of subsidiary right)

The Publishers Association in the UK drew up a code of practice setting out the treatment an author should reasonably expect. For a 
summary version, see this page.  Note that the code of practice was drawn up by publishers themselves; it is therefore the
minimum
you should expect from your own publisher.

FEES OR ROYALTIES?

Royalties

Royalties are percentages of the publisher’s income paid to the author on each copy sold. The percentage may be based either 
on the
gross income (i.e. on the published price of the book), or on the price received (the income the publisher actually gets 
after giving away discounts to wholesalers, retailers etc.)

Now that many countries have banned fixed prices for books, there is an increasing tendency to use a 'price received' basis; 
it has always been common for sales outside the publisher’s home country, where the discounts the publisher must give away 
will vary considerably according to the local marketing and distribution arrangements made in each area.

The publisher may pay advances against the hoped-for royalties. These will vary from a small sum to a new author, mainly to 
cover development costs on the title, to much larger figures paid to established authors with a good track record (and much 
greater negotiating power!) – even then, the publisher will need to be anticipating extremely good sales from the title concerned, 
so the publication must be aimed at a very large potential market. Popular fiction, as we all know, is the area where most of the 
best-publicised 'megadeals' occur. They are, sadly, much less likely in EFL and other forms of educational and academic 
publishing – though a successful author will still be in a stronger negotiating position than someone without any previous track 
record.

Fees

Fees, of course, are fixed sums – most frequently paid only once, but sometimes repeatable in certain defined circumstances.
There is a strong tendency for royalties to be paid on licensed titles, and for fees to be paid on those assigned to the publisher; 
but this is not an absolute correlation. Certainly a publisher will usually want to pay fees where a title contains sections by many 
different authors; royalty accounting would be a nightmare in such a situation! Fees are also common where the publisher is in 
effect acting only as a book developer for another organisation (another company, say, or a government); in such a case the 
publishing house will itself be working for a fixed fee, and will not have normal sales income from the project.

Which to choose? 

If you have a choice, should you opt for fees or royalties? This really depends on how risk-averse you are. Fees are paid 
irrespective of the success or failure of the title, so they are safe income. With a royalty you share the fruits of success; 
but if the book fails to sell your return will be low. (Royalty advances are usually non-returnable, so you will still get something 
out of the project; but they are typically less than the outright fee which would be paid for the same title.)

On the whole, I would advise most people to choose a royalty arrangement. Though the fee may seem the safe choice at the time, 
it is still difficult later to sit and watch the publisher receiving all the benefit from a success in which one could have shared!

Typical royalties

Inevitably, as with advances, the level of royalties depends to at least some extent on the relative negotiating power of the author 
and the publisher.

A best-selling popular novelist signing with a publisher for the next blockbuster (almost a guaranteed bestseller which will sell 
itself, unless he or she has made a total mess of it) may well ask for – and get – a higher than average royalty.

A new author with no track record is a much more uncertain proposition for the publisher, and the royalty will therefore be less.

However, the author still deserves a reasonable return for all the work done, and if you have done all the writing work, you should 
probably expect something in a range from 10% to 15% of price received (or the equivalent, somewhat lower, percentage of 
published price). The publishing house may have good reasons for offering below 10% of price received in a particular case, 
but if it does not volunteer them, you should politely enquire what they are!

EXPERIENCING THE JOYS OF ‘PATERNITY’ (OR 'MATERNITY'?)!

Authorship is often a hard, lonely business, especially for someone with a full-time job in another field; but there is nothing like 
seeing your name on the cover of a brand new title, hot off the press! 

It has been said that producing a book (and presumably therefore also an electronic publication) is the nearest thing to having a 
baby that a man can experience. Certainly authors can be as fiercely protective of their offspring as any mother! 

So why not seriously consider experiencing the joys of “parenthood”?

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