You Can Change a Contract

The ACRL Scholarly Communication Toolkit “Act Now” section for librarians recommends: “Modify any contract you sign with a publisher to ensure that you retain the rights to use your work as you see fit, including posting it to a public archive or institutional repository.” Definitely good advice – especially since I think librarians need to be willing to step up and take the action we are asking other faculty/scholars to take. I want to add to this though – if you are asked to speak or consult, ask right away about any intellectual property clauses that the inviting/hiring organization is going to ask you to sign. I’ve been amazed in the last few years at the language in those contracts and given how often I hear “no one has ever objected to this before” it makes me wonder how many times people sign away their intellectual property rights in non-publishing circumstances without even realizing it!

Here are some of the things I have been told (and my response):

  • “don’t worry about it we never enforce that” (then don’t put it in the contract)
  • “librarians at xyz institution signed it” (I don’t know why they did but I won’t)
  • “we have to have it this way” (no, you don’t)
  • “you don’t understand the spirit of the contract” (yes, I do and I can’t accept it)
  • “we can’t pay you if you don’t sign it” (I can’t afford to sign it)
  • “it’s too late to negotiate this now” (no, it isn’t)

The reality is of course that to negotiate from a position of real strength, you have to be willing to walk away from the opportunity and there are many reasons one might have other factors to consider. I also think though that we need more “success stories” (even without the specific details) of librarians who have negotiated successfully so one doesn’t have such a sense of “going it alone” and being “a lone voice.” Maybe the stories are out there and I don’t read the right blogs or go to the right conferences but here is my contribution and I hope others will comment and add their stories as well.

My approach is to now offer the hosting/hiring organization a nonexclusive license to disseminate my materials (sometimes I constraint this as to the circumstances of distribution or timeframe and I will also offer a license to translate and disseminate with similar constraints). I retain all copyrights. So far, this is working well in some cases and not so well in others. In the latter, I’ve chosen to keep my intellectual property rather than give it away. Two publishers refused. One chose to forego an obvious stream of revenue rather than change an agreement that has been in use for many years. One professional organization agreed to the license. One international consulting firm agreed to the license. I can’t say that I have enjoyed every moment of the negotiating process but each time it gets easier and I get better at explaining what I am seeking and why. When I have been able to “create change” I have had a sense of accomplishment that surprised me. Perhaps it is a glimpse that one might be having an impact on a system much bigger than oneself.

I don’t mean to set myself up as a model and admittedly I’ve only recently come to this stance with my work. So, I have signed over some copyrights in the past as well. But, I think we need to share our stories and not just principles if our community is going to move forward on this. I look forward to hearing from others.

About Lisa Janicke Hinchliffe

Lisa is Head, Undergraduate Library, Coordinator for Information Literacy Services and Instruction, Office of Services, and Associate Professor, Library Administration at the University of Illinois at Urbana-Champaign.

5 thoughts on “You Can Change a Contract

  1. Well, here’s one story, which I will tell in more detail on my own blog in about a week (because the details are not entirely to my credit)… An editor invited me to write an article for his publication. I asked if I could keep self-archiving rights. He said yes, with a six-month embargo, during which time the piece would be free online anyway. I said that was fine, and duly wrote the article.

    When I got the copyright agreement, it was an absolute horror. Rather than panic (which was my first inclination!), I wrote back to the editor and said “this isn’t what we agreed to; shall I send over the SPARC Author Addendum?”

    He said, “Oh, no, just write back to admin and ask for the *other* agreement.” So I did, and the new agreement was fine, and all was well. (Except for the details that are not to my credit, which I will deal with in my own space rather than starting a tangential discussion here.)

  2. I had a long and discouraging correspondence with an editor at a mega international publisher about a chapter I was invited to write for an annual. The publisher has reasonable rights arrangements for authors of journal articles but much tighter for authors of books. The author information section on the publisher’s Web site is divided into two sections–one for journal article authors, the other for book authors. Links from both lead to the same information about an author’s rights.
    I argued in vain that a chapter to an annual is fundamentally the same as an article in a journal. They wouldn’t agree to that since I was writing for a book! Eventually they were willing to nitpick back and forth about other things. As a result I will be able to put this chapter into my institution’s repository as long as I also direct readers to the “authoritative” version on the publisher’s site. And, I have persmission to distribute to my colleagues as many as 30 paper copies of my chapter. (Yes, I had to ask for that and then they wanted to know precisely how many I intedned to distribute!) I have passed a few copies of my last version to interested coleagues. I’m not sure how many. Fewer than 30–at least so far.
    Had the contract been sent to me at the time I was invited to write the chapter, I may not have agreed to do it. But the good editors, both practitioners, were well into the project; another author had dropped out on them; and they asked me to do that author’s chapter. Since I was not on the same schedule as the other authors, the contract came to me only after I reminded the publisher that it hadn’t been sent. By then I had invested a lot of time in the project and was interested in seeing it through.
    So, if you ever need to explain the distinction between a journal and a serial, this experience offers an example. You shouldn’t have to explain that to a mega international publisher, but you might have to. Good luck!

  3. I’m on our local Scholarly Information Task Force so when my article was recently accepted by the editors of an Elsevier journal, I thought I should consider doing something other than rotely signing and returning the copyright transfer agreement. With advice from someone at the University of California Office of Scholarly Communication, I completed and submitted a Creative Commons license (it’s notable that I couldn’t figure out the various Creative Commons options without assistance; if I couldn’t do it, what success will our faculty have?). Elsevier responded in the negative, saying that “We are unable to accept the Creative Commons license as it is not conducive with our copyright policy and we request that all authors sign an Elsevier Journal Publishing Agreement.” The terms of the Elsevier agreement were very reasonable, however, and allowed me to do everything I wanted to do (and more) including, “make copies (print or electronic) of the article for your own personal use, including for your own classroom teaching use; make copies and distribute such copies (including through e-mail) of the article to research colleagues, for the personal use by such colleagues (but not commercially or systematically, e.g. via an e-mail list or list server); post a pre-print version of the article on Internet websites including electronic pre-print servers, and to retain indefinitely such version on such servers or sites; post a revised personal version of the final text of the article (to reflect changes made in the peer review and editing process) on your personal or institutional website or server, with a link to the journal homepage (elsevier.com); present the article at a meeting or conference and to distribute copies of the article to the delegates attending such meeting; for your employer, if the article is a ‘work for hire’, made within the scope of your employment, your employer may use all or part of the information in the article for other intra-company use (e.g. training); retain patent and trademark rights and rights to any process or procedure described in the article; include the article in full or in part in a thesis or dissertation (provided that this is not to be published commercially); use the article or any part thereof in a printed compilation of your works, such as collected writings or lecture notes (subsequent to publication of the article in the journal); and prepare other derivative works, to extend the article into book-length form, or to otherwise re-use portions or excerpts in other works, with full acknowledgement of its original publication in the journal.” Given these rights, it didn’t seem like I would gain anything by trying to submit the SPARC Addendum or resisting any further. Although ideally I would have preferred to have kept the copyright and just transferred the right of first commercial publication to Elsevier, since that was not possible, I signed the Elsevier copyright transfer agreement and sent it back. In any case, it seemed worthwhile to try to change the agreement, to raise the issue with Elsevier, to push the envelope.

  4. I am grateful to read these stories. We all have to make decisions about how much to push and when and what to agree to. What I think is important is that we actually make the decision – not just blindly sign whatever is put in front of us. Also, given experience in other areas, I am certain that sharing our own stories with faculty is likely to inspire them in ways that sets of principles may not be able to do. Keep telling the tales….

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