DANGER CLAUSES, DUBIOUS PRACTICES & CAUTIONS

WATCH OUT FOR THESE CLAUSES IN YOUR CONTRACT:
Electronic Rights: License (or loan) e-book rights (for the right price) and keep other electronic rights such as the right to produce electronic versions enhanced with sound, images, animation etc. for future sale.

Acceptance of the Manuscript: Payment of your advance should not depend on the publisher’s “acceptance” of the manuscript. Insist on a 90-day limit to the acceptance period. Or ask for part of your advance when you hand in your manuscript— part following acceptance.

Payment and Royalties: Make sure your contact clearly states that your royalties will be paid within 60 days of the accounting period, i.e. the end of the period for which sales are reported.

Out-of-Print: Define “out-of-print” in your contract (in the clause which triggers reversion of rights to you) as sales falling below a minimum number of copies sold over a period of time not as the number of copies available in the warehouse.

Stay away from or amend any publishing contract that does not contain a clause that will permit you to revert your rights when your book is out of print. Without such a clause, a publisher may to able to hold onto the rights to your book even after it refuses to reprint the book and resume the sale of copies.

Subsidiary Rights: Stipulate that any subsidiary rights not licensed (or loaned) by the publisher revert to you, if you choose, following three or four years (for example) after the first publication of your manuscript.

Copyright Transfers: Stay away from or amend contracts that ask you to assign or completely transfer your copyright. There are rarely good reasons to give up your copyright, but if you do agree to do so, the payment should be a generous multiple of the fee that you would otherwise charge, since you will never be able to sell that work again. (In 2007 CANWEST issued freelance contracts requiring the transfer of copyright, plus a waiver of moral rights.)

Moral Rights Waivers: Stay away from or amend contracts that ask you to waive (i.e., give up) your moral rights. Waiving moral rights permits a publisher to make substantial changes to your work, even to your viewpoint, or to alter the authorship credit by publishing it anonymously or under someone else’s name. (In 2007 the CBC radio show, "This I Believe," asked writers to sign away their moral rights along with their copyright.)

Reversion of Rights & Bankruptcy: Be sure your contract mentions that the rights to your work revert to you if the publisher goes bankrupt. Without this clause an author may face a protracted, difficult, and even impossible time getting his or her rights back.

WATCH OUT FOR THESE DUBIOUS PRACTICES:
Manuscript Vetting: Publishers used to pay the cost of vetting a manuscript for libel and other legal risks. Now some publishers ask writers to share the cost while others don’t put this burden on the author at all or put a cap on it.

Warranties Clause: This clause forces you the author to guarantee things you can’t guarantee because you are not a lawyer. Some agents insist on adding the clause “to the best of the author’s knowledge” to the warranties clause. Authors should be liable for plagiarism and faulty research only.

Permissions: Many publishers offload the cost of permissions for text and photographs onto the author. Other publishers do pay for permissions or offer to share the cost of text or photograph permissions with the author. This is still a negotiable item.

Website Excerpts: At least one New York publisher currently tells authors that they, as author, will require the publisher’s permission to quote from their work on their own website. Ensure that you will be able to quote from your work on your website.

US & UK Rights: Some US firms insist that their territorial rights should include the right to sell their edition of your book in a few territories now or formerly part of the British Commonwealth. This jeopardizes your ability to sell UK rights.

CAUTIONS:

Beware Oberon Press’ publishing contracts which do not contain a reversion of rights clause. This contract allows Oberon to hold on to the rights to the book even if they choose to cease printing and/or selling copies of the book.

Beware The CBC radio show “This I Believe” in 2007 asked writers to sign away their moral rights along with their copyright. Follow the advice of the Canadian Media Guild and always ask CBC for the more advantageous Freelance Contributor’s Contract. Avoid any contract that asks you to give up your copyright and moral rights.

Beware of contract clauses that allow others to use your teaching or other creative materials. The following clause can be found in the University of Toronto, School of Continuing Studies Instructor’s Handbook:

Ownership/Licensing of Materials: In signing the contract the instructor hereby grants to the University of Toronto School of Continuing Studies a perpetual, non-exclusive license to produce, reproduce, perform, publish, translate, or communicate to the public all of the course materials that are prepared by the instructor in association with the course. Course materials comprise all materials required and/or used to teach the course, including but not limited to, texts, journal articles, casebooks, supplemental reading lists, references, Internet URLs, exams and other student evaluation materials, handouts, overheads, instructor notes, graphics, illustrations, photographs, audio-visual materials, and any combination thereof, and materials used in interactive exchange mechanisms such as “rich media.” The instructor acknowledges and agrees that this license may be assigned or sub-licensed to third parties by the School and that all rights related to this license shall inure to the benefit of the School, its successors, assignees, licensees, and contractors. The instructor waives any moral rights that he/she may have to be associated with the course materials.

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