Copyright matters.

I have found myself recently wondering about the copyright terms for academic publications. Whenever an article of mine has been accepted for publication either in a journal, or in a book of essays by various authors, I have to sign a contract, or perhaps just an agreement on the assignment of copyright (I am a bit hazy on the legal distinctions here, which is one of the problems). I used to just sign these things without really paying attention to what they said — since “publish or perish” was the overriding concern. But recently, I have started to pay attention to such things. Partly because, having tenure, I don’t really need to worry about the “perish” possibility. And partly because, thanks to the Net, I can get my work out there where people can read it anyway — it is no longer the case that, without official publication, what I wrote would just languish on my hard drive.

So I have started reading the copyright agreements that I am expected to sign — and I have been appalled by the terms. For instance: I received such a form just this week, from a publisher that I will only call “C”. The text of the agreement stated (among other things):

The Contributor hereby grants the Publishers during the legal term of the copyright the exclusive right and license to produce, publish, and perform his/her contribution to the Work or any abridgement or portion of it in all editions, languages, formats including film, microphotography, photocopying, electronic medium and any other form of transmission or reproduction throughout the world.

“Exclusive rights”: this means that I cannot publish or distribute the article in any other form than those the publisher approves. This includes the “electronic medium,” i.e. I cannot publish the article on my website without their explicit permission. I find this unacceptable. They are asking me to give up all control over my own work.

Now, the article that I gave publisher “C” is actually a part of my own book in progress, which I am currently trying to finish, and which hopefully will itself be published no more than six months after publisher “C”s anthology. However, the agreement “C” wants me to sign explicitly states:

The Contributor is quite free to reprint their contribution in a collection of their own work, provided that due acknowledgement is made to its first appearance and provided that its publication does not take place within a period of five years of its first publication.

In other words, I cannot publish my own book until five years after the anthology appears — which pretty much delays the publication of my own book from 2009 to 2013 or so.

Needless to say, I am refusing to sign the contract with publisher “C” unless the change the terms, and explicitly give me permission to a)make the article available on my own website, and b)publish the book of which the article is a fragment as soon as I can, rather than having to wait five years.

I am waiting to hear back from publisher “C”. If they don’t agree to my requests, I will simply remove my article from the collection of essays.

It’s been a busy week. I also received, this week, a similar contract or agreement from publisher “P”, regarding an article that is supposed to appear next year in one of their journals. This article, at least is stand-alone; it is not part of any of my books in progress. So, if I were to withdraw my text from them, it wouldn’t be “officially” published anywhere else. The issue about republication in a book I am currently writing doesn’t come up in this case. But still, I was taken aback by the language their agreement used:

You assign to us with full title guarantee all rights of copyright and related rights in your Article. So that there is no doubt, this assignment includes the assignment of the right to publish the Article in all forms, including electronic and digital forms, for the full legal term of the copyright and any extension or renewals. Electronic form shall include, but not be limited to, microfiche, CD-ROM and in a form accessible via on-line electronic networks. You shall retain the right to use the substance of the above work in future works, including lectures, press releases and reviews, provided that you acknowledge its prior publication in the journal.

The over-the-top language about inclduing electronic forms worries me a bit. Nonetheless, in this case, I signed. The reason was, that the language doesn’t use the word “exclusive,” as the contract from publisher “C” did. I am assuming, therefore, that what I am assigning to publisher “P” is non-exclusive rights to publish the article in all forms, etc. “Non-exclusive” means that I am not giving the rights only or exclusively to them. Which means that I can retain for myself the right to publish the article on my own website, for instance.

Of course, I am not a lawyer, so I may be mistaken in my interpretation of this contract. Maybe I oughtn’t to have signed the agreement from publisher “P” either. However, just to be sure of retaining my rights, I am making the article available here, several months prior to journal publication. Hopefully some people will find it of interest. It is basically a statement of why I so strongly dislike my 1993 book The Cinematic Body, even though it appears to be the work upon which my academic reputation, such as it is, is largely based. At this point, I would like to forget about The Cinematic Body altogether. Really, folks, I have written a lot of articles and books since then, nearly all of which I think are much better…

Anyway, my dealing with these copyright agreements has brought home to me how massively fucked up the whole publication and copyright system is in academic writing. (Of course, the same goes for all other sorts of writing, and of production of works in other media as well — what is of interest here is just the particular way in which it all works out in academic writing). And it demonstrates, yet again, that copyright does not generally benefit the author/producer; it has mostly to do with corporate profits and corporate arrangements. (Though the profits for academic writing are so meager that the whole set-up seems especially pathetic here. I don’t make my living from royalties on publications anyway; but rather, from the academic prestige that I am able to acquire on the basis of the non-financial prestige of those publications). In particular, it’s pathetic that acdemics in the “humanities” don’t have the sort of network for distributing their research online in the way that scientists and certain groups of social scientists do. Putting up pdfs on my own website will have to suffice for now.

11 Responses to “Copyright matters.”

  1. Kirby Olson says:

    That sounds terrible. Looking through my contracts I’ve never seen draconian concepts like those that your publishers utter. But five years isn’t that bad. Mine say stuff more like if you want to republish this, just give us credit, but there’s never any time limit mentioned, and you rarely get a no for republishing. This company that you’re dealing with needs a poke in the eye. Or a poke in both eyes.

    The rights for my novel TEMPING are somewhat different. There is a French translation in the works, and some film-makers interested. All these speculations involved in publishing requires a certain outlay, and everyone wants to be covered when the project gets legs, as some do (although most don’t — out of 1,500,000 more than 80% of such books sell less than 300 copies… only about 400 books a year sell more than 100,000 copies).

    But there are financial issues involved even in small-time academic publishing, and they have to make sure they have a sellable product. If you can turn around and publish and publish and publish, then they don’t have anything new to sell.

    Publishing on the internet is a bad business. The bad part is that although it’s available it’s available in an annoying way. You can’t write margin comments, and you can’t throw the book across the room when you hit a really annoying passage, which might annoy you further. The good part is that you can annoy people as far away as Amsterdam and PAris, and they can’t throw their computers across the room or if they do they are out of a computer.

    I love capitalism, and feel that all the binding contracts that come with it are a good thing. But you have to read them and think about them. Ideas are labor, too, as I think even Marx recognizes in the Gundrisse. The clown as producer of wealth, which he discusses at some length, for instance — goes right to the heart of the subject, but it doesn’t go FAR ENOUGH. The clown as symptom of his own alienation, yielding humor by subjecting himself (herself) (itself) to our hoots of derision, in exchange for having money thrown at his face, is at the very least a going concern.

    And yet the agent wants his cut, and the stage manager wants his cut, and the producer wants his cut, and so on down the line to the ticket taker, who definitely wants his cut. Capitalism is a beautiful thing in that it is so butt-ugly.

  2. I’ve heard from various quarters that many publishers will go along with authors who just cross out the terms they aren’t willing to consent to. That may seem improbable, but we did just that ourselves for the first Bad Subjects book. We wanted to leave all the content up on our website, available for free as always. And we modified the contract with NYU in order to give us the right to do so. Mind you, the book didn’t sell as well as it would have if we had made its contents exclusive, but the lower sales were worth it from the standpoint of our sense of integrity and political convictions.

  3. N Pepperell says:

    There’s also a strange tendency, when you point out that these sorts of terms are ridiculous, for people to go, “Well, of course we won’t do anything with these rights that would actually impede your own work” – in which case, one points out that surely they would then be perfectly comfortable changing the terms – why ask for rights they don’t intend to exercise – why not allow the author instead to grant them a specific license for the uses they would like to request, etc. For what it’s worth, SSRN has announced a humanities variant. I do think, though, that it’s important to try to contest these arrangements – some publishers do offer routine variations on their standard terms, and pushing back on other publishers may help standardise more reasonable arrangements.

  4. Thanks for posting the pdf with this piece. It was fascinating to read what you have to say about your own work a dozen years down the line. I, myself, have long wondered why the book–which has influenced me greatly–wasn’t called CINEMATIC BODIES.

  5. Jodi says:

    I heard from an editor this week that his press is becoming ever more reluctant to publish books if chapters have appeared elsewhere. It seems that because pieces circulate electronically, they can’t sell the books. This is a pretty different environment from when I first got started.

  6. Lem Pitkin says:

    Let me see if I’ve got this straight. The story you told the bouncer at the door to get into the club isn’t wholly congruent with the moves you’ve shown on the dance floor since you got in. And now you find that copyright restrictions are potentially problematic for reconciling what you do with what you once claimed you came to do. Your next book is likely to invite comparisons that you would like to preempt.

    I haven’t read The Cinematic Body and there’s virtually no chance that I will unless you put it online. I’ll buy copyright as a valid excuse for denying me that pleasure. Does the fine print say you can only dance with the partner that brung you? Different disciplines make different claims on and for critical theory.

    I have no objections if art appreciation has the potential to render behavioral science a bit more accountable.

  7. Heh. I had the same experience a little while ago, which led me to write a book about not unrelated matters. You should see the contract i was offered for it…

  8. I’m afraid that Publisher P’s terms are a little unclear whether they’re exclusive or non-exlcusive… Generally, non-exclusive assignments will make that explicit.

    The key wording — “You assign to us with full title guarantee all rights of copyright and related rights in your Article. ” — sounds pretty exclusive to me. I would say that “all rights of copyright” include exclusivity. At least it could be argued — and thats a probem. When things can be litigated.

    Have you checked our SSRN?

    (I now find it disturbing that my first year lecturer from nine years ago just commented on your blog. Hi McKenzie!)

  9. I’d encourage all writers (academic and otherwise) to join the National Writers Union / UAW (http://www.nwu.org/nwu/); they provide terrific information on these issues. The union frequently hosts workshops on campuses, too,often in conjunction with faculty unions!

  10. P.S. Dig the epigraph!

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