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; 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 http://en.wikipedia.org/wiki/Plagiarism.)
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.
Owners of copyright can:
assign the copyright (i.e. sell
it outright) to someone else, such as a publishing house.
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.)
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.
A cautionary tale! Here is a fairly alarming cautionary tale. When I first
joined one publishing company, I read through its standard contract, I queried this, and it was
eventually discovered that when the contract had been transcribed some time
earlier, 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. |
Items which should be included in a publisher’s contract COPYRIGHT ARRANGEMENTS - licensed or assigned? - geographical areas covered (often referred to as
“territories”) - languages in which the licensee
may publish the material
(etc.) DELIVERY OF MANUSCRIPT
- by when? - length - 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? - warranty to the publisher that
there has been no plagiarism RESPONSIBILITY FOR ARTWORK AND INDEX, IF ANY
- who arranges these? PROMOTION NEGOTIATION OF SUBSIDIARY RIGHTS (OTHER LANGUAGE EDITIONS< USE IN ELECTRONIC MATERIALS, ETC.) - by the publisher? ARRANGEMENTS FOR REVISED EDITIONS ROYALTIES (INCLUDING ADVANCES) AND FEES - division of income on any
subsidiary rights payments received (itemising each
separate kind of subsidiary right) |
The
Publishers Association in the
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 rather 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!
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”?