Understanding and Negotiating Book Publication Contracts, prepared by Brianna L. Schofield, Robert Kirk Walker, Katherine Bridge, Alfredo Diaz, Karen Graefin vom Hagen, Anna Kuksenkova, Henry Nikogosyan (Berkeley: Authors Alliance, 2018).

The latest and largest of the series of guides from the Authors Alliance covers publication contracts for all types of books (previous guides on open access, rights reversion, and fair use were covered on this blog).  The guide covers contracts from both trade and academic publishers so some aspects of the discussion will be more relevant for trade books rather than academic books.  (Also worth noting is that neither the book nor this blog post constitute legal advice, and in the interest of full disclosure, I was one of the Kickstarter backers for this book.)

The guide is the product of interviews with many authors, publishers, agents, and copyright experts, as well as more than fifty survey responses from authors.  Some of those responses are captured in text boxes for “success stories” and “cautionary tales”; in addition, fictional “literary lessons” are also set apart from the main text.  A book publication contract “outlines what rights you as an author are granting to your publisher and on what terms” (p.4): it is certainly not something to accept as easily as software terms of use.  Indeed, the authors insist that signing a contract without negotiating is a mistake.  A book publication contract must be in writing and signed, and it is especially important to save copies of it for future reference.

Prior to negotiation, authors should determine their goals for the published book.  Is it important to retain copyright, or to be able to re-use the content in certain ways, or to keep the price low, or to have final say on design choices like cover art?   The guide recommends that authors “devote extra attention to clauses in their contracts that affect the long-term availability of their books” (p. 14).  The guide explains what “in print” and “out of print” mean in the era of print-on-demand and digital publishing, and recommends a threshold of yearly sales to be called “in print.”  If a book does not meet that threshold, an author may be able to regain rights to the book.   At a minimum, don’t assign rights to the publisher that the publisher can’t use.

Copyright is a bundle of rights: “the exclusive right  to reproduce, distribute, make derivative works, publicly perform, and publicly display the work.” (p. 51).  The grant of rights from an author to a publisher can come in three forms: assignment (copyright transfer), an exclusive license, or a non-exclusive license, but most contracts will involve either assignment or an exclusive license.  Regardless of which form the grant of rights takes, the scope of those rights can be limited, for example, by language, geography, format, and/or duration.  Duration may particularly be worth considering, since the current term of copyright is life of the author plus 70 years.   If a publisher goes out of business, for example, it may be difficult if not impossible to recover rights for the book.  In an interesting “success story” on limiting duration of rights, an author granted exclusive rights to a publisher for five years, after which rights were non-exclusive.  This allowed the author to post an openly-licensed version online, while enabling the publisher to recoup costs during five years of book sales (though there is some evidence that the online availability of books can help print sales).  If a publisher won’t  accept a limitation on the duration of rights, an author can ensure that there is a rights reversion clause or a “license-back” in which certain specific, limited rights are returned.  It’s also possible to include a “revert-back” clause, sometimes known as “use it or lose it” clause, in which rights that are unused by the publisher in a certain period of time revert back to the author.  Another way for authors to hold on to rights is to include a sentence specifying that any rights not granted in the contract belong to the author.  Subsidiary rights, which are specific rights that the publisher can license to a third party (such as translation or movie rights), can be an important revenue generator, and are usually shared with the author.  If a publisher is unwilling to change the subsidiary rights language, an author can stipulate a right to approve these licenses, or at least be consulted.

A section of the guide covers an author’s obligations, such as those relating to the manuscript’s length, delivery date, and procedures for copyediting, proofreading, and indexing.  Contracts typically require permission to use third-party material included in the manuscript (which is also common in the copyright transfer agreements for peer-reviewed journal articles).  While this generally applies to only those materials that require permission, an author might ensure that the requirement does not cover all third-party material, which overlooks fair use of copyrighted works, as well as materials that are openly licensed or in the public domain.  For the book’s copyright, the contract should specify which party will register the copyright and when.  Although copyright is automatic under U.S. law, registration within three months of publication will protect against infringement and allow for statutory damages.

What about the money?  Academic authors shouldn’t expect much here.  Advances, however, are common in trade publishing, and are credited against income from book sales.  Royalties are usually expressed as a percentage of the publication price, net income, or net profit– it’s important to understand each calculation (there’s a chart on p. 204).  Both trade and academic book contracts may include an escalation, or an increase in the royalty percentage once a sales threshold is reached, and most contracts provide for regular accounting statements to be sent to the author, and should be insisted upon even if you don’t expect significant sales.

Understanding and Negotiating Book Publication Contracts, like the other Authors Alliance guides, is a clear, easy-to-read guide focused on an author’s control of their works, particularly the ability to make the work available in whatever form the author wishes.  The guide is a valuable resource for all authors, and is an open access book (licensed CC BY) available online in PDF.   Those readers who prefer print can order a copy ($30) from the Authors Alliance, or check it out from Newman Library.  For more information, see the Authors Alliance’s Publication Contracts resource page, which includes a link to author success stories in negotiating book contracts.  Also of possible interest is the Model Publishing Contract for Digital Publishing, a Mellon-funded project of Emory University and the University of Michigan.

(Thanks to Peter Potter, director of Virginia Tech Publishing, for reviewing a draft of this blog post.)

OER are More than Just $Free

Open Educational Resources (OER) are expert-authored and freely-shared learning materials available in various formats. They are not just textbooks and they enable much more than resources which are “low” or zero cost. OER are licensed to be customized, can be used in-part or as a whole, and can be adapted, combined and re-shared (with proper attribution) to create something new that fits a particular purpose. This transformation affordance significantly sets them apart from resources that are temporary (rented), or described as low-cost, zero-cost, or affordable.

Open Educational Resources (OER) are freely and publicly available teaching, learning, and research resources that reside in the public domain or have been released under an intellectual property license that permits their free use and re-purposing by others. They include full courses, course materials, modules, textbooks, streaming videos, tests, software, and any other tools, materials, or techniques used to support access to knowledge. – adapted from the Hewett Foundation

By using, curating, and sharing OER, course-material selectors can reduce cost-related barriers faced by their students and beyond. Course materials cost far now than more than even 20 years ago. College textbooks have among the highest rates of price increases among U.S. goods and services according to the U.S. Bureau of Labor Statistics. These costs are real for students and have significant personal, ethical, and academic impacts.

Used with Permission. © 2018 Mark Perry, American Enterprise Institute https://www.aei.org/publication/chart-of-the-day-or-century

Affordances of OER, beyond financial savings

Open educational resources afford control to institutions and course-material selectors in making course materials permanently available to ALL learners, even after they leave school.

By virtue of their open license or Public Domain status, OER allow adaptation and customization. (While there are many open licenses, including open source software licenses, Creative Commons licenses are the most-well-known open licenses.)

Imagine being able to update course materials on the spot to enhance relevance to current events, or to clarify a concept. Imagine giving learners the freedom and responsibility to exercise higher-order level thinking skills and demonstrate their knowledge by evaluating, adapting, or creating new materials. In order to drive these points home, the University Libraries at Virginia Tech hosted the recent 2018 & 2019 Open Education Symposiums. Hosted in the spring, each symposium feature leaders, practitioners, explorers, students, and champions selected in part of the basis of their ability to illuminate affordances of open educational resources. The following recordings document major events held during the 2018 and 2019 symposiums.

Open Education Symposium 2019: Expanding Open Education in Colleges & Universities

2019 Keynote: Improving Access, Affordability, & Achievement with OER

MJ Bishop, Associate Vice Chancellor and inaugural director of the University System of Maryland’s Center for Academic Innovation

Despite the transformative power that technology has had in a whole range of businesses, the history of technology use in education over the last 100 years paints a rather bleak picture of the extent to which digital tools, in and of themselves, can lead to sustainable academic change. The issue is that we often miss the key affordances of the tools that can be employed to help solve learning problems. This presentation traces the lessons we can learn from the history of educational technology in order to explore the true promise — the true affordances — of openly licensed educational resources and the future they may hold for teaching, learning, and student success.

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2019 Lightning Round Talks and Poster Presentations

Presenters: Garnett Kinniburgh, Sue Erickson, Christine H. Terry, Robert Browder, Matthew DeCarlo, Lisa Becksford, Jason Lachniet, and Britton Hipple. Moderators: Alex Kinnaman and Kayla McNabb

Faculty, instructional designers, graduate students, and librarians from six institutions of higher education introduce their peer-reviewed posters with lightning-round style talks. Topics including: Creating open educational resources, linking open education and the career center, #openlearning19 a cMOOC for exploring open education, class book projects, introduction to Odyssey an open learning object repository, open software for graphic, and campus responses to the use of open educational resources.

View poster proceedings and event video.

2019 Panel Discussion: Facilitating Openness at the University: Connecting the Opens + Making Change Happen

Panelists: MJ Bishop, Benjamin Corl, Karen DePauw, Diana Franco Duran, Ellen Plummer, Nathaniel Porter, Peter Potter. Moderator: Anita Walz

This panel discussion begins with brief presentations of several “core open practices”: Open Access, Open Education/Open Educational Resources, and Open Data by experts from the University Libraries at Virginia Tech. Faculty, administration, and student panelists from diverse disciplines discuss their rationale for exploring and in some cases adopting and championing open practices, their perception of overlaps in philosophy and values between different types of open practices, perceptions of the value of open practices for individuals, disciplines, and institutions, and barriers, opportunities, and processes to adopting open educational practices on an institutional level.

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Open Education Symposium 2018: Open Pedagogy

2018 Keynote: Open Educational Practices: Equity, Achievement, and Pedagogical Innovation

Rajiv Jhangiani, Special Advisor to the Provost, Kwantlen Polytechnic University, British Columbia

This presentation draws on a diverse set of examples to make a case for why the shift away from traditional (closed) practices is not only desirable but also inevitable, and how open educational practices (OEP) support the modern university’s mission by serving academic achievement, faculty and student engagement, diversity & inclusion, pedagogical innovation, and the university’s Land-grant mission.

OEP support teaching, learning, and publication in an increasingly diverse faculty and student body. OEP encompass the creation, adaptation, and adoption of open educational resources, open course development, and even the design of renewable, real-world assignments where students are empowered as co-creators of knowledge. These practices leverage learning beyond socio-economic disparities and put engaged, active student (and faculty) learning at the center. These practices champion academic freedom, pedagogical innovation, applied approaches, and innovation. OEP represents learner-centered and learning-together approaches to education that radically enhance both agency and access.

2018 Panel Discussion: Getting Comfortable Working in the Open

Panelists: Matthew DeCarlo, Susan Erickson, James Harder, Jennifer Kidd, Kathryn Murphy-Judy, Carrie Hamilton, Savannah Aigner, Amy Nelson. Moderator: Anita Walz

Taking a transparent, public or open approach to one’s work as an instructor or academic can be daunting for even the most competent and skilled faculty. Faculty, students, and a librarian from five different Virginia institutions of higher education are involved in working in the open — in their teaching, publishing, creating with students, and/or building or leveraging learning experiences. Panelists discuss their motivations, opportunities leveraged, and challenges they encounter in taking non-traditional and open approaches to teaching, learning, and publishing.

Further Details

Virginia Tech’s Open education event recordings from 2014 forward are hosted in VTechWorks. Further details about past open education week events at Virginia Tech are also available.

Open Education Week is an annual celebration of the global Open Education Movement designed to raise awareness about the movement and its impact on teaching and learning worldwide. Open Education Week is organized by the Open Education Consortium. For further details see: https://www.openeducationweek.org #oeweek

Note: This is the first in a series of Open@VT blogposts that will appear over the ensuing months focusing on Virginia Tech’s “Big Deal” contracts with commercial journal publishers. As the University Libraries’ contracts with Elsevier, Springer, and Wiley come up for renewal in 2-3 years, we will have to decide whether to renew or cancel these contracts. We look forward to engaging the VT community in a conversation about the best path forward.

Dominoes falling (Photo by aussigall. CC BY 2.0)

On February 28 the University of California announced that it was terminating all of its journal subscriptions with the scholarly publishing giant Elsevier. The news sent shock waves throughout the world of higher education—not just in America but globally. Why? Because Elsevier is the world’s largest publisher of scientific research and the University of California (UC), with its ten-campus system, is one of its largest customers. The impact on Elsevier was immediate: its parent company, RELX, saw its stock drop nearly 7 percent in the aftermath of the UC announcement—and its value still has not yet recovered.

In Virginia we are paying special attention to the situation because our own research universities, including Virginia Tech, have a similar journal subscription agreement with Elsevier that is set to expire in two short years. Millions of dollars are at stake in Virginia. Globally it is in the billions.

What’s the Problem?

At the heart of UC’s dispute with Elsevier is what is known as the “big deal.” A big deal is a contract between an institution (often a university library but sometimes a business or government) and a publisher to purchase access to a large bundle of the publisher’s journals. Think of cable TV bundles in which customers get hundreds of channels at a lower per-channel rate. Many of the channels, however, go unwatched, all while customers’ bills continue to rise. The same is true with big deals. Elsevier publishes more than 2,500 journals. Many are invaluable to their fields and frequently used and cited. Many, however, are used infrequently, and yet libraries still have to buy them as part of the bundle. All the while, the price of the bundle goes up and up. Over the last thirty years library journal budgets have risen by a staggering 500 percent (see chart), which inevitably leads to cuts in other areas of library budgets. UC was paying Elsevier more than $10 million per year for its big deal. Altogether, the publisher’s revenue in 2018 surpassed $3 billion and its profits exceeded $1 billion, resulting in a gaudy profit margin of 37 percent.

Universities are understandably tired of big deals. Not only have big deals meant runaway prices, they also perpetuate an outdated business model from a time when subscriptions were an efficient way to pay for the cost of printing and distributing journals. Today subscriptions are inefficient for the simple reason that journals can be published online for immediate access. Publishers like Elsevier, however, have an interest in keeping the old system alive. This is why they continue to invest in expensive publishing platforms that restrict access to only the wealthiest institutions. There must be a better way.

The solution proposed by the University of California is to do away with the big deal concept and replace it with what is known as a “read and publish” agreement. A read and publish agreement (RAP) is a single integrated contract that enables a library to pay a one-time, up-front charge for the right to read all of a publisher’s content and to publish in any of that publisher’s journals under an open access model. The first RAP agreement in North America was announced last year, between the MIT Libraries and the Royal Society of Chemistry. Ultimately, the goal of RAP agreements is to transition scholarly publishing to a universal access model.

Momentum Is Building

UC is by no means the first university to stand up to Elsevier, but UC has special clout because of the sheer size and research output of its ten-campus system, which accounts for nearly 10 percent of the nation’s research publications. Meanwhile, governments and national research funders are increasingly demanding open access to their researchers’ articles, even imposing concrete deadlines. Sweden’s government is calling for OA by 2026. Norway’s goal is 2024. The initiative known as Plan S is even more ambitious. Originating in Europe, Plan S calls for all publicly funded research to be published in open access journals by 2020. The Bill and Melinda Gates Foundation was the first North American foundation to sign on to Plan S.

As more universities and governments push for open access, the more it seems that Elsevier is destined to lose this battle. But this does not mean that it will lose the war. Elsevier is shrewd enough to adapt to (and even shape) whatever new business model emerges around open access publishing. Perhaps anticipating this change in business model, Elsevier has skillfully and steadily turned itself into one of the world’s largest publishers of open access as well as toll-access journals. It has also been diversifying its business portfolio to the point that it no longer even refers to itself as a publisher but as a “global information analytics business.” In other words, Elsevier is not going away anytime soon.

Implications for Virginia

Virginia will soon be in UC’s shoes. In 2004 seven Virginia research universities including Virginia Tech negotiated a big deal agreement with Elsevier. (The other schools are George Mason University, James Madison University, Old Dominion University, University of Virginia, Virginia Commonwealth University, and College of William and Mary.) The number of journals in that big deal was 1,800 and the total cost to the seven universities was $27 million over five years. The license has been renegotiated several times since then, and we are now in the third year of a five-year contract covering 2,278 journals at a total cost of $46 million. This contract will expire at the end of 2021.

Not surprisingly, these universities are already looking ahead to 2021 and considering the possibility of walking away from Elsevier big deal as UC has done. (See, for instance, the University of Virginia.)

Here at Virginia Tech, the University Libraries, under Tyler Walters’s leadership, will be engaging the campus community in an ongoing conversation about how Virginia Tech can confront this scholarly publishing crisis. On this, we sincerely want your feedback. Please watch for Library-sponsored events that provide a forum for discussion. In the meantime, feel free to reach out to our librarians and engage them in conversations. Or let us know what you think by replying to this blog post or to future Open@VT blog posts. You can also find up-to-date information at the Library’s Open Access-Open Knowledge website.

Shadow Libraries: Access to Knowledge in Global Higher Education, edited by Joe Karaganis (Cambridge, MA: The MIT Press, 2018).

Shadow Libraries is a collection of country studies exploring “how students get the materials they need.”  Most chapters report original research (usually responses to student surveys) in addition to providing useful background on the shadow library history of each nation (Russia, Argentina, Brazil, Uruguay, India, Poland, and South Africa).  As editor Karaganis puts it in his introduction, the book shows “the personal struggle to participate in global scientific and educational communities, and the recourse to a wide array of ad hoc strategies and networks when formal, authorized means are lacking… ” (p. 3). Shadow libraries, sometimes called pirate libraries, consist of texts (in this case, scholarly texts) aggregated outside the legal framework of copyright.

Karaganis’ introductory chapter does an excellent job summarizing the themes connecting the chapters, and is worth reading by itself.  For example, the factors leading to the development of shadow libraries are common to each country covered: low income; a dysfunctional market in which materials either aren’t available or are overpriced; a rising student population; and easy access to copying and/or sharing technology. The student population boom in low and middle-income countries in the last 20 years is remarkable- quadrupling in India, tripling in Brazil, and doubling in Poland, Mexico, and South Africa.  At the same time, reductions in state support for higher education have exacerbated the affordability problem, leaving the market to meet (or more commonly, not meet) demand.  Add to this the tendency of publishers to price learning and research materials for libraries rather than individuals, and the result is a real crisis of legal access.

Due to the focus on student access to learning resources, there is less emphasis in Shadow Libraries on access to peer-reviewed articles and the best-known pirate library, Sci-Hub. However, Balázs Bodó presents two fascinating chapters on Library Genesis (LibGen) and how it was shaped by censorship and samizdat networks in Russia.  Online, shadow libraries are usually distributed (and easily forked), have separate indexing and item hosting, and are invisible to search engines (instead shared by word of mouth).  Other shadow libraries may be digital but not online, or in print.  Digital materials are often obtained via the sharing of university passwords.  In India, many materials are brought back by students studying in the U.S. or U.K.   The aggregation of scholarly materials is a community practice in which “a large majority of students… are shadow librarians by necessity if not choice” (p. 206).

The student surveys show the predominance of photocopying (in Argentina and Brazil, 90% of students obtain materials this way).  In many countries, “copy shops” in or near universities are ubiquitous, and students resort to other methods as well, such as taking photos of print materials (60% of respondents in Brazil).  Though publishers target university libraries for sales, in countries like India, few libraries can afford academic databases, and they provide access to only a “small fraction of the number of journals typically received by U.S. universities” (p. 186).

While there are some positive trends underway (the spread of SciELO to South Africa, greater fair use for education in India, and the rise of open educational resources, or OER), the current situation seems surprisingly resistant to change.  Indeed, access work-arounds only seem to reduce pressure on the system, as Karaganis notes:

“…the informal copying ecosystem operates as a safety valve… denying publishers the more complete markets they want but also forestalling a sharper crisis of access that might lead to a break with existing publishing and policy paradigms” (p. 11).

The book’s flaws are minor: some chapters go into more detail about a country’s copyright history than some readers may desire, and two chapters erroneously refer to U.S. fair use as limited to 10% of a resource.  References sometimes lack persistent identifiers such as DOIs or handles, and cited websites lack archiving (for example, with the Wayback Machine or Perma.cc, which should become universal practice in scholarship).

Shadow Libraries is a superb and fascinating book that is recommended to everyone in higher education.  As universities in wealthy countries emphasize international outreach (Virginia Tech is beginning to call itself a “global land-grant”), they should take into account access challenges around the world.  Of course, to some degree the same challenges are also present in well-funded institutions (textbook costs are receiving increased attention, and as Bodó notes, developed countries are major sources of traffic for LibGen).  Advancing university open access policies and creating OER can have impact on the crisis both locally and globally.  Emphasizing openness over prestige would help as well, with researchers in South Africa, Brazil, and Poland pressured to publish in “top” journals that often aren’t available in their own countries.  Such efforts would begin to remedy an academic environment that is “universalist in principle and unequal in practice” (p. 3).  Shadow Libraries leads one to ask: given the importance of higher education, why isn’t access to research and learning resources easier?

Shadow Libraries is an open access book (licensed CC BY-NC) available online in PDF, with buying options for those who would prefer a print copy.

As part of Open Access Week, the University Libraries and the Graduate School offered a travel scholarship to OpenCon 2018, a conference for early career researchers on open access, open data, and open educational resources. From a pool of many strong essay applications, we chose Diana M. Franco Duran, a Ph.D. candidate in Civil Engineering in the Construction Engineering and Management program. Diana attended the conference in Toronto, Canada on November 2-4, and sent the report below. Be sure to check out the OpenCon 2018 highlights.

Diana M. Franco Duran writes:

Diana M. Franco Duran

OpenCon is a community with a culture of openness that seeks everyone who can participate. It promotes an open, safe, and diverse space in which ideas are respected. This year, OpenCon focused the discussion on two main topics: 1) community as the foundation for culture change, and 2) diversity, equity, and inclusion in open research and education. The conference’s goal was to motivate the attendees to change the culture towards a more open research and educational system with diversity, inclusion, and equity.

Open research and open education are about more than sharing the work. Open research and open education are about people. There is no way to make research and education open if we do not know the community. The community must be engaged into the discussion, so we can discover how openness can help them do what they want to do. Openness as a problem solution must work in the context of the community.

During the workshops, two of the topics for discussion were 1) how to motivate students to incorporate open access in research related activities, and 2) how to reward open research and education in higher education institutions.  It is important to communicate open access, open data, and open education to students as well as faculty, and to develop program policies/ strategies to incorporate any form of open access as an objective in the research of graduate students.

Do-a-thon at OpenCon 2018

From my point of view, open access, open data, and open research have become significant in higher education in the last few years. However, open education has not reached that status yet. There is still the misconception that open education is only sharing educational resources. Open education is the collaborative development of educational resources to provide everyone access to high-quality resources and experiences. As a younger generation, we live surrounded by technology and unlimited resources provided by the internet. Therefore, we have all the tools to make the academic environment relevant to others by giving them access to education and knowledge.

At OpenCon, the voices and stories of all attendees are heard. I personally connected to the story of one of the panelists, Adbullah Alghurabi, a master’s student in Canada, who developed educational resources for his community in Yemen. He translated scholarship opportunities into Arabic to help students find these opportunities. He also provided students with educational materials they needed to prepare for the TOEFL and IELTS exams that did not require internet access, since students in Yemen often lack an internet connection. Undoubtedly, these stories connect to others.

Thanks to this opportunity, I am now part of the team organizing the OpenCon Latin America 2019 which will be held in Colombia. We want to focus on open education and how it is related to open access and open data, highlighting the Latin American context.

Organizing team for OpenCon Latin America 2019

I am thankful that I had the opportunity to attend OpenCon 2018 and represent Virginia Tech. This is a space where I had the chance to get to know people from all over the world but also I had the opportunity to know how open data, open research, and open education are helping the community. Through the workshops, story circles, open reflections, do-a-thons, and unconferences, OpenCon offers a space to work together and shape ideas to contribute the community by considering openness as an inclusive solution.