Clark's Publishing Agreements
Lynette Owen on the daunting task of updating the trade's contract bible, now in its eighth edition.
The January launch party for the eighth, and latest, edition of Clark's Publishing Agreements, held at the London offices of law firm DLA Piper, highlighted the long history of this book. First published by Allen & Unwin in 1980, in jacketed demy octavo format (8 3/4 x 5 5/8 inches), priced at £8.50 and less than 300 pages long, the new edition has risen to royal octavo format (9 1/4 x 7 1/2 inches) and weighs in at 728 pages. The begetter of the book was the late Charles Clark, who undertook the first edition with the help of a small team of advisors. Clark was doubly qualified as a publisher and a barrister, starting his publishing career at Sweet & Maxwell, then moving on to Penguin and Hutchinson before becoming legal counsel to the Publishers Association (PA).
Since the second edition, the book has been written by a team of contributors and moved from Allen & Unwin to Butterworth, then to Tottel Publishing and (following the acquisition of Tottel) to its present home at Bloomsbury Professional. The current team of contributors are Hugh Jones, legal counsel to the PA, Kevin Stewart of Contracts for Publishing, Brenda Gvozdanovic of Pearson Education, Leo Walford and Anjali Pratap of Sage Publications, Diane Spivey of Little, Brown UK, Andrea Shallcross of Hachette Books USA, Richard Balkwill of Copytrain, Alicia Wise of Elsevier and Alan Williams and Duncan Calow of DLA Piper. There has also been input from the Translators Association, and the new edition contains the text of the revised PA Code of Practice on Author Contracts. Royalties for the book benefit the Book Trade Charity and the Royal Literary Fund. Regular users of Clark's include small and medium-sized publishers without in-house legal departments, the libraries of universities running publishing degree courses, and a handful of solicitors.
Tackling a new edition of Clark's is always a somewhat daunting task. The book is revised on a four-year cycle, and while some areas of the industry remain reasonably stable and contractual practices stay relatively consistent, others rise and fall in importance. Legislative changes and new technological developments needed to be taken into account for the new edition. Hugh Jones has provided an overview of the legal scene since the last edition; in the UK we have had the Gowers Review of Intellectual Property and the 2010 Digital Economy Act, and there has also been ongoing pressure at international level for educational exceptions to copyright for developing countries. As well as EU initiatives such as the Arrow programme (designed to improve reading skills), the European Digital Library (integrated bibliographic catalogues and digital collections of various European libraries) and Europeana (a multi-lingual collection of millions of different museum collections), there was also the Google Settlement, unresolved at the time of writing.
The book's aim has always been to provide users with a broad selection of contractual precedents —from contracts between publishers and authors and illustrators to a range of contracts for licensing scenarios accompanied by explanatory notes, with the addition of a section of appendices on publishing issues which lend themselves less readily to coverage in precedent form. From the sixth edition onwards, the texts of the precedents appear on an accompanying disc, recognising the fact that many users wish to tailor contracts for their own use. Oddly, for the inventor of the oft-quoted maxim "The answer to the machine is in the machine", Charles was initially reluctant to endorse the disc.
Over the years, the range, complexity and length of the precedents have inevitably grown, reflecting developments in the publishing world. The author contracts seek to recognise the different requirements of different industry sectors, and some of the licensing precedents (for example those covering serial rights, international co-editions, film and television deals and merchandising) are likely to be of more interest to the trade sector, while other contracts will be of more use to academic publishers. We have expanded the academic section with the addition of a contract for publication of a society-owned scholarly journal—which feedback from our loyal user-base indicated would be useful.
Other areas, such as paperback licences and book club deals, have become less significant than in previous editions, but are still covered in the appendices. Issues of territoriality, particularly between UK and US publishers, regularly resurface and are covered in the appendix on the US market. The range of new and enhanced licences available from the Copyright Licensing Agency is covered in the appendix on collective licensing, while lobbying for accessibility for people with print disabilities and publisher initiatives on this front have led to a new appendix dealing with this area.
The areas of electronic publishing and licensing are of course high on the agenda of authors, publishers, booksellers, potential licensees and users; this is a fast-moving area which is reflected to some extent in almost all the precedents and their accompanying notes. The key issues are outlined in this edition in Duncan Calow's introduction to the sixth electronic precedent; the fifth edition dipped its toe in the water by covering only two issues.
Challenges have included new devices with an unpredictable shelf life, the move towards a convergence of platforms, issues connected with DRM and the question of whether, and how, territoriality can be maintained in the internet world. All these issues highlight the need for careful contractual drafting if publishers are to reach agreements with authors on the range of rights they need to acquire, both to publish electronically themselves or to license others to do so.
The welcome rise of a new generation of e-readers, which are proving more popular than their predecessors, as well as the multi-function iPad and its tablet rivals, has been accompanied by issues on contractual negotiations with technology companies such as Amazon, Apple and Google, all now significant forces in our industry.
The new edition provides an e-book distribution agreement, but with the caveat that no precedent can cover all eventualities—a maxim which of course applies to the whole book. It stresses that publishers must recognise that individual circumstances may differ, wording may need to be adapted and legal advice should be sought if necessary.
It was always Clark's belief that there should be a fair balance of interest between authors and publishers, and between publishers and their licensees. The new edition aims to continue in precisely that tradition.
Lynette Owen, copyright director of Pearson Education, is the general editor of, and contributor to, Clark's Publishing Agreements: A Book of Precedents, Eighth Edition (Bloomsbury Professional, 9781847665447)
The Professionals' Guide to Publishing
Gill Davies and Richard Balkwill on the difficult and demanding role of the editor.
So, you think you want to be an editor? Perhaps you have put your foot on the first rung, in which case you are probably an editorial assistant. This is the classic entry position, working alongside an editor, where you can learn about and observe how editors do their job. Equally important, you begin to learn something about authors, how they work, and the relationships you will have with them. If you work hard and display competence and initiative, you will become an assistant editor. Here too you are learning, but responsibility increases. You may be "looking after" authors, supporting them and keeping track of their writing progress, under the management of the editor to whom you report. Make no mistake: you are not contracting books at this level. That is the editor's job. But unlike the editorial assistant, who is working almost entirely under the direct supervision of the editor, you do have some scope for independence of action and judgment.
Both these positions prepare you for the role of editor. This job is often prized and longed for . . . until you get it. Then it is a different story, as the newcomer realises that he or she is now occupying what most people still consider to be the most demanding job in publishing. It is demanding for four reasons:
• The editor is the gatekeeper who chooses which publishing projects will go forward for consideration by colleagues in the publishing house. That is a lot of power.
• Having exercised that power, it is the editor who will organise all resources—financial, commercial, practical, and possibly intellectual—to persuade colleagues to back a particular project. That is a lot of persuasion to find.
• This exercise in persuasion has to be informed by a true understanding of the market for the project; the market not just now, but the market in a couple of years' time, or more. Which means it has to be a very good guess.
• If these projects succeed, the editor must be ready to share credit for them with colleagues; if they fail, the editor will suffer alone. That might seem unfair, but ultimately, responsibility does lie with the editor.
Working with authors
It is now time to state something that is so obvious it often gets overlooked in discussions about publishing, and yet it bears down precisely on the work of the editor. Publishing is one of the few industries where the content/artefact/product is not produced by company staff, but by people who are not employed, and are unlikely ever to be employed, by the publishing house. Like record companies, publishers choose what will be made commercially available, and then attempt to sell it.
This choice entails risk, and therefore the relationship between the author and the house is by far and away the most important one of all. It is the editor's responsibility to take care of that relationship, and because he or she is central to that relationship (both its success and its continuation), this will be one of the greatest challenges of the job. How, for example, will you manage to deal with the very human and common challenge of being an editor and having to keep your balance and judgment when dealing with one author, whom you dislike, and with another whom you like very much? As a professional, you will learn to treat them both even-handedly. You will have your favourites, but you will keep quiet about that—especially when talking to other authors!
Projects usually arrive on an editor's desk in one of two forms: most commonly a synopsis, but sometimes a manuscript. The latter is fairly rare. Most authors would prefer to write and present a synopsis and find out whether the publisher is going to be interested or not. They would prefer not to have to go to the trouble of writing a whole book, only to have it rejected. A synopsis should consist of the following:
• A rationale for the book—which is the author's assessment of the need for (or demand for, or attraction of) the book. Here the author is justifying why this particular work should be published.
• A detailed description, chapter by chapter, of the book.
• The author's assessment of the market for this book—who will read it, and why.
• Contextual information, such as examples of what are often called "competitive texts"—what is wrong with them and why this proposed project will be superior. Similar information can be presented showing that this particular genre of book is enjoying success with the reading public. In sum, the author is using his or her powers of persuasion, harnessed with information gleaned about who is buying what books, and why, to convince the editor that there is a demand for this type of book.
• The author's assessment of how long the book will be and how much time he or she needs to write it.
This is usually enough information for editors to start working on a series of procedures that might lead them to the point where they can recommend to their colleagues that publishing this book is an acceptable commercial risk. Remember, when recommending a book to your colleagues, you are asking the company to invest in it. Investment means money and a lot of effort, so editors must get this recommendation right.
Occasionally, you will find yourself dealing with an author who does not want to put the effort into writing up a proper synopsis. The solution here is a simple one: turn them down. Writing a synopsis is the most effective way for authors to think through properly what they want to write. An idea is not enough: execution is everything. So, if they are not prepared to put themselves through the disciplined process of working out how their ideas can turn into a viable, structured text, then they are probably not up to writing a book or handling the publication process.
This is an edited extract from Gill Davies and Richard Balkwill's The Professionals' Guide to Publishing: A Practical Introduction to Working in the Publishing Industry (Kogan Page, 9780749455415). Davies worked in publishing for 26 years, was a member of the PA's governing council and recently retired as the professor of publishing at the University of the Arts, London. Balkwill worked in publishing for 25 years, currently runs a publishing consultancy and is director of the Independent Publishers Guild.
The role of the freelancer
Why the publisher relationship is key, by Emma Murray
The effects of the economic downturn on the book publishing industry have been well documented, but out of the gloom of the lay-offs and closures, a small business has been reborn: the publishing freelancer.
More and more publishers are outsourcing to freelancers for help with editing, proofreading, illustrating, indexing and graphic design. From the publisher's perspective, hiring a freelancer makes more financial sense: freelancers are cheaper than maintaining a full team of in-house staff; they do not demand holiday pay, paid sick leave or health benefits. Thus, freelancers can be hired on an ad hoc, pay-as-you-go basis, which makes good business sense in these times of austerity.
Thanks to the renewed demand for freelancers, the publishing freelancer has more opportunities to work with a diverse range of projects and clients, coupled with the freedom of working their own hours, often from the comfort of their own home.
It is no secret that the success of any business depends on its relationships. When it comes to executing a piece of work, both publishers and freelancers have a common goal: to produce a manuscript to the highest standard. Achieving this involves working together to foster a productive and professional relationship from the outset.
To the freelancer, a strong network of close contacts is absolutely crucial in order to stay afloat. Word-of-mouth is still the most powerful way of attracting new business, and one missed deadline, major oversight, or instance of carelessness can destroy a reputation. Indeed, obtaining repeat business from every client on the freelancer's books is the ultimate accolade.
Therefore, successful freelancers have a strong work ethic: they deliver their assigned project on or before the deadline, respond to queries as soon as possible, and liaise with various members of the publishing team in a polite, professional manner. They will also go the extra mile and take the initiative when it comes to calling attention to a problem outside their remit.
In turn, the publisher must treat the freelancer with the same level of respect and professionalism they would give to any member of their in-house staff. The initial brief must be clear, the deadline clearly stated, and the terms and conditions agreed by both parties. Clear communication between them is key when it comes to successfully completing a piece of work.
For the most part, publishers and freelancers tend to work well together; however, the issue of payment is still a sticking point. Indeed, the subject of money matters has been known to dissolve the strongest of relationships both within and outside of the business world. Thus, setting out the terms of payment from the outset is absolutely imperative. While freelancers are responsible for invoicing their clients, publishers are equally responsible for paying that invoice in a timely manner.
Publishers tend to have a list of their favourite freelancers who they contact time and again: freelancers who have proven to be hard-working, meticulous and reliable. Equally, freelancers are happy to take on repeat business from those publishers with whom they have a good relationship. So, provided each side makes a continued effort to honour their commitments, communicate effectively with each other and share a desire to achieve the same goal, the relationship between publishers and freelancers is likely to flourish for many years to come.
Emma Murray is a writer, ghostwriter, consultant and publishing freelancer. She is the co-author, with Charlie Wilson, of How to Succeed as a Freelancer in Publishing (How To Books, 9781845284237).