This practical but erudite volume is now in its seventh edition, under the general editorship of Lynette Owen. Its originator, the late lamented Charles Clark, is commemorated in the title and his work is carried forward by Ms Owen and a strong team of specialist editors. They keep the precedents under review in the light of their practice and provide helpful notes and appendices. A strength of the book is that the well used, almost customary agreements, are retained with updates, which must lead to stability of transactions without ossification or anti-competitive side effects. Several contributors are officers of authors’ or publishers’ associations. It would be interesting and informative to have short biographies of the editors.

 

Hugh Jones, author of Publishing Law, provides a concise but potent introduction outlining recent developments (such as the Gowers Review of Intellectual Property) and “coming attractions” (such as the review of the European Copyright Acquis). He comments that implementation of the Term Directive, increasing duration of copyright, did not lead to the “anticipated flood of disputes” about extended and revived copyright. Jones also makes pertinent comments on matters such as the effect of the European Court of Justice’s decision in British Horseracing Board v William Hill, his qualms about the effects of author payments on the objectivity of scientific publishing, e-publishing, the Open Access movement and international developments.

 

The precedents range from a general book agreement as between author and publisher, through agreements for contributors, translators, illustrators, precedents for particular forms of exploitation, such as reprints, international co-editions, film and TV, merchandising to precedents for electronic forms of access and distribution. The precedents are clear and the notes are revealing and instructive. The format is most successful where precedent and notes are on opposite pages. The contributions are even-handed as between authors and publishers. For example, an author might wish rights to be non-assignable, whereas a publisher would want to be able to dispose of titles; this is made clear. If an author dies before completing a work, the publisher might wish to engage someone to complete the book, whereas the author’s heirs might not. The agreement for chapter contributor refers to the possibility of republication, consent not unreasonably to be withheld.

 

Main appendices contain commentary on matters such as the US market, licensing permission rights, collective licensing, moral rights, the Publishers Association Code of Practice and territories and their membership of international conventions. However, there are also appendices to several of the precedents; for example, the agreement for sale of translations rights has a fascinating appendix on transitional and post-transitional markets.

 

Who is the book for? It is aimed at authors, their agents, publishers and lawyers. However, there is much here for copyright scholars seeking to understand how things work in practice, for students and their teachers.

 

One curiosity is a rather standard copyright notice, which forbids unauthorised reproduction save in accordance with the Copyright Designs and Patents Act 1988 (fair dealing and the like) or a Copyright Licensing Agency licence. With a book of precedents there must surely be an implied licence to reproduce commercially in the form of concluded agreements; it would have been better if the publisher’s notice had acknowledged this.

 

Alison Firth

EIPR Issue 11 [2008]

For anyone practising in this area of law, a solid understanding of the various different topics is needed to properly master the commercial agreements.  Fortunately, Clark's Publishing Agreements: A Book of Precedents takes away some of the hard work by providing a number of well drafted and, more importantly, well explained precedents typically used for authors, editors or publishers.

Written by a team of experienced practitioners, Clark's Publishing Agreements: A Book of Precedents includes twenty-two precedents including agreements like an online access to database agreement to a translator's agreement to a publishing agreement for a general book author.  Each agreement is analysed in the same way with the editors' notes (generally) appearing on the left hand side of the page with the precedent on the right.  Impressively, the text cross-references to other paragraphs from other precedents rather than duplicating the comments: this saves valuable time.

Each precedent is well-written, accessible and easy to follow.  Whilst not written in plain English, they are certainly some of the more readable precedents available to media law practitioners.  The text is, however, a little confusing towards the start of the precedents where some of the commentary spills onto the right-hand side page, rather than being kept to the left-hand side.  This is perhaps unfortunate and disrupts what is otherwise a well-balanced book of precedents.

For media law practitioners, the seventh edition of Clark's Publishing Agreements: A Book of Precedents is extremely welcome.  It provides a number of excellent precedents which can be used or adapted by practitioners.  Each precedent is also available on the handy CD-ROM which is included as part of the text.  This allows relevant parts of precedent or, indeed, whole precedents to be quickly copied and formatted into house style.  Its price and specialism also makes it excellent value for money.

Reviewed on 22 August 2008
Student Law Journal

 

The journalist and former Punch editor, Alan Coren, once wrote an article in The Times about his desire to write a best-selling publishing contract. This followed a spate of stories in the press about the large advances then being paid by publishers to ‘trophy’ authors such as Martin Amis. When preparing his best-selling contract, Mr Coren would have benefited greatly from the precedents in Clark’s Publishing Agreements.

Originally published in 1980, Clark is now in its seventh edition. It consists mainly of about 25 – 30 template agreements for use in the publishing of books, journals, and related materials, including a substantial section on electronic publishing. There are also some precedents on related subjects such as the grant of film, television, and merchandising rights, although these are not the main focus of the book. Each precedent is accompanied by detailed notes on negotiating points and other commercial and legal issues. Further useful information is provided in extensive appendices, covering such topics as dealing with US publishers, collecting societies, codes of practice, and definitions of territories. The introduction provides a helpful, brief summary of recent legal developments affecting publishing contracts. Seventeen authors are named in the Editor’s Preface; each precedent has been prepared, annotated, or updated by a different author or set of authors.

The general flavour of this work is 'hands on' and practical. The book does not claim to be a textbook on publishing law (although some legal points are briefly discussed in the notes accompanying each precedent), and there are other works, including some written by the authors, where legal issues relevant to publishing can be more fully explored. Lawyers who advise in this area need to be familiar with several areas of law, including IP, competition, and tax.

For anyone who occasionally advises on or negotiates publishing contracts (as I do), the book is a very useful resource. But now for the catch: although the book provides helpful and valuable information, I would probably not use some of the precedents in their current form. Instead, I might ‘cannibalise’ particular clauses (or the ideas behind them) when preparing a new agreement. There are several reasons for this rather negative view.

Does this matter? It may be argued that the precedents are merely there to provide general guidance, and that they will inevitably need to be tailored to the individual transaction. Fair enough, but it would be nice to have a well-polished document as a starting point. In the past 5 years, this reviewer has been involved in advising on or negotiating academic or professional publishing contracts with Blackwells, OUP, LexisNexis, Tottel, and the Law Society, among others. Many agreements that the publishers produced had a similar ‘rough and ready’ quality to some of those in Clark; the best of the bunch was probably the Law Society’s contract, which looked as though a City firm of solicitors had recently worked on it. In none of these transactions was there much money at stake: for example, a typical small textbook for legal practitioners might earn royalties in the region of £5,000 per edition. It may be difficult to justify incurring significant legal costs on re-writing long-established templates, particularly in the less profitable areas of publishing, or in areas where litigation over the terms of contracts is rarely encountered. This may account for the slightly old-fashioned impression given by some of the documents in this industry, including some of the precedents in Clark. This impression is given by some of the Clark precedents for ‘traditional’ publishing: its precedents for electronic publishing (mostly prepared or updated by lawyers from DLA Piper) have a more modern ‘feel’.

The book’s great strengths are its notes and commentary, linked to examples of the clauses under discussion, which easily justify the price of £85.

Journal of Intellectual Property Law & Practice, 2007, Vol. 2, No. 11

This new edition of the classic Clark’s Publishing Agreements provides a comprehensive collection of model agreements and accompanying notes covering a variety of publishing situations, ranging from standard contracts between publisher and general book author to merchandising rights agreements to licensing provisions for use of content on an electronic handheld device. The provided legal documents are a valuable resource for publishers, media law practitioners and other professionals engaged in drafting contracts. The inclusion of a CD-ROM, which has become a standard add-on for works of this sort, makes the package even more user-friendly.

Of particular value are the comprehensive and balanced notes that explain the purpose of the contractual wording in practical terms and highlight areas of current debate. For example, it is now essential that the out-of-print language in a legal document address the fact that the book under contract may not become unavailable in the traditional sense due to the nature of print-on-demand technology and electronic publishing.

 

This issue has been the subject of recent and ongoing controversy. In the United States, Simon & Schuster has introduced new contractual language allowing the publisher to retain rights in a work for the duration of copyright, or as long as the title is available on the company’s electronic database. Authors and agents have reacted furiously and publicly. Simon & Schuster argued, however, that the new wording reflects the realities of the modern marketplace.

 

“Availability” is the key point, of course. As authors of medical and academic works discovered some years ago, there is a huge difference between a publisher that displays a title in its catalogue and actively markets the book, and a publisher that simply includes the book in its subscription database containing thousands of other titles. In the latter scenario the book might be discovered by a reader searching for that particular title or for a reference work on the subject of interest, but it is more likely that the reader, using a key-word search, is directed to only a segment of the book. Where a book is accessed in this way, the potential interest in it as an entity, and as an item of purchase, is easily overlooked.

 

In the United Kingdom, the Society of Authors, the Association of Authors’ Agents and the Publishers Association have discussed at length the contractual implications of new formats for published works and have attempted to find common ground on new provisions for out-of-print termination. To date that has not been achieved. In the new edition of Clark’s, a balanced view of the current situation is given along with the stipulation that in the meantime “some stiff individual negotiation” is warranted to settle the terms of these clauses.

 

Another issue of increasing relevance to authors and publishers is the digital down-loading of audio works. Although sales of published works in CD and cassette formats are falling, digital sales, albeit fairly small at the moment, are expected to soar in the future. This edition of Clark’s explores the debate over royalty rates for this format, weighing both sides of the argument: authors may expect a higher share of proceeds to compensate for the absence of production, warehousing and distribution costs; while publishers hope they can keep royalty commitments low and retain some leeway as they face a new market with expenses that still run high and third party retailers offering tough terms.

 

The explanatory notes accompanying the general book author-publisher agreement precedent suggest that a royalty of 10–15 per cent of net receipts is not unusual for digital downloads compared to 7.5 per cent rising to 10–12.5 per cent for physical format copies. As a safeguard, the notes add, the contract may allow for either party to seek renegotiation of terms for downloads after two or three years. In my work as a contracts advisor at the Society of Authors, I can’t say that this provision is widely included in the agreements I have vetted as yet, but we would be very pleased to see it become standard in respect of digital audio rights and other forms of electronic exploitation.

 

Open Access is another issue that has increased in significance since the publication of the previous edition of this book, and the precedent for academic journals has been updated to take it in to account. The accompanying notes acknowledge that in many instances the funders of research request or require that written materials be made freely available through specified institutional or central repositories. The precedent between publishers of academic journals and contributors includes new language allowing for this, and offers the option of imposing a delay between publication in the journal and free public availability.

 

The final section of the book includes a number of useful appendices on publishing-related topics, including the licensing of particular rights. Also found in this section are the Publishers Association’s code of practice, a list of world territories and a membership list of the states of the International Copyright Conventions.

 

One appendix offers notes on the US market and comments on the current territorial debate over the European market between UK and US publishers. US publishers are increasingly insisting that the European Union countries, which have traditionally formed part of the grant of rights held exclusively by British publishers, must be held as an open market. This is a matter hotly negotiated between agents and publishers at present. One wonders, though, how much longer it will be possible to grant territorial rights in the same language to more than one publisher in a marketplace where e-books and other electronic formats are becoming firmly established and where online retailers can supply orders worldwide with a single click of a mouse.

 

Today’s royalty statements illustrate only too clearly to authors that ever-greater portions of the sales of their works are sold at high discounts through traditional trade outlets, online retailers, supermarkets, mail order, premium deals and special sales. In light of this development, it is interesting to read the notes in the appendix covering the current market for book clubs. The availability of books at heavily reduced prices through most outlets has rendered book clubs, which require members to either buy or return selected titles mailed direct to them, struggling to maintain market share. Consequently most book clubs in the UK have been acquired and are now owned by just two publishing groups. Book Club Associates has specialist interest clubs for railway, military and aviation enthusiasts, as well as a more general list, while Readers Union includes clubs for anglers, painters and those interested in country sports. Perhaps this is the way that book clubs will survive in the future, specializing more and more so that they act as portals to niche non-fiction and genre fiction for readers with particular interests.

 

This edition of Clark’s Publishing Agreements includes a translator’s agreement, which, along with the accompanying notes, takes into account the model agreement drafted by the Society of Authors Translators Association for the translation of in-copyright works. The Society is also often queried about agreements for ghost writing and other collaborative projects, as well as for commissioned books, such as company histories. Perhaps these publishing topics might be considered by the editor for inclusion in future editions.

 

The new Clark’s book is priced at £85, which is unfortunate, because it must limit the access of some small publishers and individuals to the excellent information it contains. And although it is well bound, it lacks a dust jacket. The latter point is a minor grumble, though, and should not detract from what is a rigorous and authoritative new edition of this classic text.

 

Elizabeth Haylett

The Society of Authors

With the digital world greatly increasing the range and depth in licensing arrangements possible in publishing, the need for a trusted source of information and models to refer to is stronger than ever. The arrival of the seventh edition of this well-established and highly regarded publication could not have come at a more appropriate time, not only because of these added complexities but also as an extremely fitting tribute to Charles Clark, who sadly died in October 2006. Building on the success of previous volumes, it brings the matter of contractual issues bang up to date for everyone, even daring to consider very new issues such as open access and the continuing political developments in Europe.

Again the seventh edition has Lynette Owen as General Editor, who has successfully combined the benefits of her own substantial experience with those of a number of well-qualified contributors such as Hugh Jones, Alicia Wise, and Sally Morris. It is a publication that should be considered an almost compulsory reference tool for anyone working with contracts within a publishing environment, irrespective of the nature of the business - book and journals, serial rights, book clubs, etc.

The publication has long had a layout that is familiar and workable and it has retained this overall stfucture in the seventh edition. In total, the book provides 22 precedents giving suggested model agreements for a range of contractual scenarios (the models are also provided on the accompanying CD-ROM). For example, it begins with a very detailed precedent providing models for author-publisher agreements in the trade and academic sectors and later on has a new precedent covering an agreement between th editor for a book series and a publisher. In addition to the precedents, Hugh Jones provides an excellent overview of the legal issues currently influencing the publishing world. The appendices are also an extremely valuable source of reference, with the section on collecting societies being helpful particularly to anyone relatively new to publishing and rights management and thus still trying to understand the finer complexities of how these organizations work.

While this is a detailed and complex publication to read, the continuation of an established layout makes Clark's Publishing Agreements fairly easy to follow. The first precedent and its accompanying notes are very lengthy, some 35 pages or more, but this is because it is the first and intended as a benchmark against which to highlight the differences of the other precedents. The notes for each precedent, and in particular the way in which they highlight the key considerations in each scenario, are extremely valuable. Suggestions of two or three possible ways to word some sections of contracts are also very helpful.

In conclusion, while this is very clearly not the type of publication that most of us would sit and read from cover to cover, it is nevertheless one that would and should be referred to on a regular basis by those of us grappling with the challenges of contracts in today's publishing environment. The wealth of experience and knowledge which the contributors bring to the book is immediately obvious and gives a very clear indication of the extent to which this publication should be considered a key tool of reference.

Learned Publishing, July 2007

Any serious publisher will count among their necessary skills a thorough understanding of the contract they offer to potential authors. While the role of contracts manager has become more prominent and influential in recent years, an effective publisher will be expected to be able to explain their company's policies on such matters as the consequences of late or failed delivery of the manuscript, libel reading costs, exclusive territories, high discounts and electronic rights. A well-drafted contract reflects all these matters and more, covering the complete publishing process from delivery of the manuscript to remaindering and reversion.

While I might hesitate to recommend the latest edition of  Clark's Publishing Agreements as bedtime reading for aspiring publishers, General Editor Lynette Owen's sensible introduction together with the considered notes to pertinent sections of relevant contracts could usefully be studied by anyone involved in brokering publishing deals and would take much of the strain out of their negotiations.

This new edition contains 22 annotated precedents for different types of publishing contracts, including six that are specifically devoted to different forms of software licence. The 10 appendices provide useful background information on such matters as the US market and moral rights. I particularly appreciated the section near the beginning of the book in which Hugh Jones describes the key legal developments relevant to publishing contracts which have occurred since the last edition was published in 2002.

All publishers are exercised by the business opportunities presented by the digital world. One challenge that faces contract managers is how to write contracts today that will still have pertinence in years to come. Not only must we ensure that publishers have the necessary rights to enable them to generate new income for author and publisher alike (and commission for their assiduous agents) but also to include reasonable royalty rates for these new forms that reflect a sensible business model. we are not crystal ball-gazers and every one of us will have had the uncomfortable experience of being called or emailed by our publisher or sales director hoping that some new sales channel, format or discounting policy is discovered in the contract.

So of special interest are those pages of the new edition of Clark's that concern the electronic world. Explanations of different forms of electronic publishing and licences and the tricky business of defining different types of electronic publication are deftly summarised in precise and unambiguous language. This shifting ground is reason enough to buy this new edition. I would only question the suggestion that ebook rights can be separated from print rights and the former retained by the author. The publisher's editorial input into the finished work alone suggests that this division is not feasible. Denying publishers electronic print rights as part of their volume rights licence only restricts possible potential income in this format.

Territoriality continues to be much discussed both among British publishers and agents and by their American counterparts. In this new edition, we have a useful exposition of the history, the current contentious issues and explanations of the arguments. I would only add that my experience shows British publishers are more concerned with upholding their right to the exclusive Indian market at the moment than I think Clark's suggests, including defending themselves against infringements into markets that have been exclusively granted to them in their contracts.

Having recently been briefed by the RNIB on their campaign to increase the number of titles available in different formats to blind and partially sighted people (the percentage currently stands at five per cent), I found the section on the opportunities that digitisation may provide for publication in new formats particularly timely and indeed prescient.

My only small criticism is of the packagers' precedent which seems overly favourable to the packager and, amongst other things, lacks the detail that publishers need to track and approve the creation of a title at all stages, including choice of illustrations, page layouts and, most importantly, the jacket. I suspect this is because this template originates from the Packagers' Association rather than a publisher's model. But this is a minor quibble over what is otherwise an impressive achievement by an expert team.

As the introduction to the electronic precedents concludes, the development of digital repositories and the necessary licensing and contractual framework for exploiting them are likely to be big challenges for publishers in the next five years. A copy of Clark's Seventh Edition close at hand will at least make the contractual side of dealing with these and many other issues a little less thorny.

Margaret Bluman, Publishing News, 18th May 2007

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