Guidelines for Publishers in their dealings with Authors
Copyright of the Publishers Association. Reproduced by kind permission of the Publishers Association, 1 Kingsway, London WC2B 6XF
The Code of Practice was first issued in 1982 and was revised and reissued by the P.A. in 1997. The later amendments are marked by square brackets, +/- and italicised notes.
A constructive and co-operative relationship between authors (and the agents and representatives acting for them) and their publishers is vital to successful publishing.
[Following three paragraphs deleted: In the great majority of cases this relationship undoubtedly exists. Nevertheless, there can be dissatisfaction, perhaps because a title is not the success the author and publisher hoped for but also because of misunderstandings of the publishing contract, uncertainties and poor drafting, and "customs of the trade" unappreciated by the author.
The Council of the Publishers Association believes that everything possible should be done to ensure a satisfactory relationship and avoid disputes. It has therefore prepared the Code of Practice for book publishers set out below, which it recommends to members in their dealings with authors. This code gives guidance only. It cannot deal with every variation. In general, however, failure to accept the guidance included in the Code without good reason is clearly likely to damage the standing of individual publishers and of publishing generally.
Book publishing is so varied in its scope that contracts are likely to contain many variations between, for example, different types of book with different markets, different degrees of editorial involvement by the publisher, and established or relatively new authors. Total uniformity of contract or practice is therefore impracticable. In particular, some academic, educational, reference books and works based on a variety of contributions may be subject to special considerations, though the necessity to follow the general principles of this Code remains.]
[Replacement paragraph: In order to eliminate the causes of any dissatisfaction which may arise, however, perhaps because a title is not the success the author and publisher hoped for or because of misunderstandings of the publishing contract, this Code of Practice attempts to address some of the areas which may lead to avoidable conflict.]
[1. numbering now omitted] The publishing contract must be clear, unambiguous and comprehensive, and must be honoured in both the letter and the spirit.
Matters which particularly need to be defined in the contract include:-
[i] a title which identifies the work or (for incomplete works) the nature and agreed length and scope of the work;
[ii] the nature of the rights conferred - the ownership of the copyright (an assignment or an exclusive licence) whether all volume rights (or part of the volume rights or more than volume rights) and the territories and languages covered;
[iii] the timescale for delivery of the manuscript and for publication;
[iv] the payments, royalties and advances (if any) to be paid, what they are in respect of and when they are due;
[v] the provisions for sub-licensing;
[vi] the responsibility for preparing the supporting materials (e.g. indexes, illustrations, etc.) in which the author holds the copyright and for obtaining permissions and paying for the supporting materials in which the copyright is held by third parties;
[vii] the termination and reversion provisions of the contract.
Should the parties subsequently agree changes to the contract, these should be recorded in writing between them.
[2.] The author should retain ownership of the copyright, unless there are good reasons otherwise.
An exclusive licence should be sufficient to enable the publisher to exploit and protect most works effectively. In particular fields of publishing (e.g. encyclopaedic and reference works, certain types of academic works, publishers' compilations edited from many outside contributions, some translations and works particularly vulnerable to copyright infringement because of their extensive international sale) it may be appropriate for the copyright to be vested in the publisher.
[3.] The publisher should ensure that an author who is not professionally represented has a proper opportunity for explanation of the terms of the contract and the reasons for each provision.
[4.] The contract must set out reasonable and precise terms for the reversion of rights.
When a publisher has invested in the development of an author's work on the market, and the work is a contribution to the store of literature and knowledge, and the publisher expects to market the work actively for many years, it is reasonable to acquire volume rights for the full term of the copyright, on condition that there are safeguards providing for reversion in appropriate circumstances.
The circumstances under which the grant of rights acquired by the publisher will revert to the author (e.g. fundamental breach of contract by the publisher, or when a title has been out of print or has not been available on the market for a stipulated time) should form part of the formal contract. In addition, a reversion of particular rights that either have never been successfully exploited by the publisher, or which are not subject to any current (or immediately anticipated) licence or edition, may, after a reasonable period from their first acquisition and after proper notice, be returned on request to the author, provided that such partial reversions do not adversely affect other retained rights (e.g. the absence of an English language edition should not affect the licensing publisher's interest in a translated edition still in print) and provided that payments made by the publisher to or on behalf of the author have been earned.
[5.] The publisher must give the author a proper opportunity to share in the success of the work.
In general, the publishing contract should seek to achieve a fair [fait - sic] balance of reward for author and publisher. On occasion it may be appropriate, when the publisher is taking an exceptional risk in publishing a work, or the origination costs are unusually high, for the author to assist the publication of the work by accepting initially a low royalty return. In such cases, it is also appropriate for the publisher to agree that the author should share in success by, for example, agreeing that royalty rates should increase to reflect that success.
If under the contract the author receives an outright or single payment, but retains ownership of the copyright, the publisher should be prepared to share with the author any income derived from a use of the work not within the reasonable contemplation of the parties at the time of the contract.
[6.] The publisher must handle manuscripts promptly, and keep the author informed of progress.
All manuscripts and synopses received by the publisher, whether solicited or unsolicited, should be acknowledged as soon as received. The author may be told at that time when to expect to hear further, but in the absence of any such indication at least a progress report should be sent by the publisher to the author within six weeks of receipt. A longer time may be required in the case of certain works - e.g. those requiring a [- fully] detailed assessment, particularly in cases where the opinion of specialist readers may not be readily available, and in planned co-editions - but the author should be informed of a likely date when a report may be expected.
Note: It is important [+ however,] for the publisher to know if the manuscript or synopsis is being simultaneously submitted to any other publisher.
[7.] The publisher must not cancel a contract without good and proper reason.
It is not easy to define objectively what constitutes unsuitability for publication of a commissioned manuscript or proper cause for the cancellation of a contract, since these may depend on a variety of circumstances. In any such case, however, the publisher must give the author sufficiently detailed reasons for rejection.
When the publisher requires changes in a commissioned manuscript as a condition of publication, these should be clearly set out in writing.
Note: In the case of unsolicited manuscripts or synopses, the publisher is under no obligation to give reasons for rejection, and is entitled to ask the author for return postage.
Time
If an author fails to deliver a completed manuscript according to the contract or within the contracted period, the publisher may be entitled (inter alia) to a refund of monies advanced on account. However, it is commonly accepted that (except where time is of the essence) monies advanced are not reclaimable until the publisher has given proper notice of intent to cancel the contract within a reasonable period from the date of such notice. Where the advance is not reclaimed after the period of notice has expired, it is reasonable for the publisher to retain an option to publish the work.
Standard and Quality
If an author has produced the work in good faith and with proper care, in accordance with the terms of the contract, but the publisher decides not to publish on the grounds of quality, the publisher should not expect to reclaim on cancellation that part of any advance that has already been paid to the author. If, by contrast, the work has not been produced in good faith and with proper care, or the work does not conform to what has been commissioned, the publisher may be able to reclaim the advance.
Defamation and Illegality
The publisher is under no obligation to publish a work that there is reason to believe is defamatory or otherwise illegal.
Change of Circumstance
A change in the publisher's circumstances or policies is not a sufficient reason for declining to publish a commissioned work without compensation.
Compensation
Depending on the grounds for rejection,
[i] the publisher may be liable for further advances due and an additional sum may be agreed to compensate the author, or
[ii] the author may be liable to repay the advances received.
In the former case, the agreement for compensation may include an obligation on the author to return advances and compensation paid (or part of them) if the work is subsequently placed elsewhere.
Resolution of Disputes
Ideally, terms will be agreed privately between the parties, but in cases of dispute the matter should be put to a mutually agreed informal procedure [+ such as that available from the Publishers Association], or if this cannot be agreed, to arbitration or normal legal procedures.
[8.] The contract must set out the anticipated timetable for publication.
The formal contract must make clear the timescale within which the author undertakes to deliver the complete manuscript, and within which the publisher undertakes to publish it. It should be recognised that in particular cases there may be valid reasons for diverging from these stated times, or for not determining strict timescales, and each party should be willing to submit detailed reasons for the agreement of the other party, if these should occur.
[9.] The publisher should be willing to share precautions against legal risks not arising from carelessness by the author.
For example: libel. While it remains the primary responsibility of the author to ensure that the work is not libellous - and particularly that it cannot be arraigned as a malicious libel - the publisher may also be liable. Libel therefore demands the closest co-operation between authors and publishers, in particular in sharing the costs of reading for libel and of any insurance considered to be desirable by the parties.
[10.] The publisher should consider assisting the author by funding additional costs involved in preparing the work for publication.
If under the contract the author is liable to pay for supporting materials, e.g. for permissions to use other copyright material, for the making and use of illustrations and maps, for costs of indexing, etc., the publisher may be willing to fund such expenses, to an agreed ceiling, that could reasonably be recovered against any such monies as may subsequently become due to the author.
[11.] The publisher must ensure that the author receives a regular and clear account of sales made and monies due.
The period during which sales are to be accounted for should be defined in the contract and should be followed, after a period also to be laid down in the contract, by a royalty statement and a remittance of monies due. Publishers should always observe these dates and obligations scrupulously. Accounts should be rendered at least annually, [added: more commonly, twice yearly.]
[deleted: and in the first year of publication the author may reasonably expect an intermediate statement and settlement. The initial pattern of sales of some educational books, however, may make such intermediate payment impracticable.
The current model royalty statement (1979) issued by the Association of Authors' Agents, the Publishers Association, the Society of Authors and the Writers' Guild, or the information suggested by it, should be used as a guide, and the details of the statement should be adequately explained.]
The publisher should pay the author on request the appropriate share of any substantial advances received from major sub-licensing agreements by the end of the month following the month of receipt (providing monies already advanced have been earned, and proper allowance made for returned stock; allowance may also need to be made if very substantial advances have been outstanding for an extended period of time).
The publisher should be prepared, on request, to disclose details of the number of copies printed, on condition that that the author (and the agent) agree not to disclose the information to any other party.
Publishers should be prepared to give authors indications of sales to date, which must be realistic bearing in mind either unsold stock which may be returned by booksellers or stock supplied on consignment.
[12.] The publisher must ensure that the author can clearly ascertain how any payments due from sub-licensed agreements will be calculated.
Agreements under which the calculation of the author's share of any earnings is dependent on the publisher's allocation of direct costs and overheads can result in dissatisfaction unless the system of accounting is clearly defined.
[13.] The publisher should keep the author informed of important design, promotion, marketing and sub-licensing decisions.
Under the contract, final responsibility for decisions on the design, promotion and marketing of a book is normally vested in the publisher. Nevertheless, the fullest reasonable consultation with the author on such matters is generally desirable, both as a courtesy and in the interests of the success of the book itself. In particular the author should, if interested and available, be consulted about the proposed jacket, jacket copy and major promotional and review activities, be informed in advance of publication date, and receive advance copies by that date. When time permits, the publisher should consult the author about the disposition of major sub-leases, and let the author have a copy of the agreement on request.
[14.] The integrity of the author's work should always be protected.
The author is entitled to ensure that the editorial integrity of the work is maintained. No significant alterations to the work (i.e. alterations other than those which could not reasonably be objected to) should be made without the author's consent, particularly where the author has retained the copyright.
The author who has retained ownership of the copyright is entitled also to be credited with the authorship of the work, and to retain the ownership of the manuscript.
[15.] The publisher should inform the author clearly about opportunities for amendment of the work in the course of production.
The economics of printing make the incorporation of authors' textual revisions after the book has been set extremely expensive. Publishers should always make it clear to authors, before a manuscript is put in hand, whether proofs are to be provided or not, on whom the responsibility for reading them rests and what scale of author's revisions would be acceptable to the publisher. If proofs are not being provided, the author should have the right to make final corrections to the copy-edited typescript, and the publisher should take responsibility for accurately reproducing this corrected text in type.
[16.] It is essential that both the publisher and the author have a clear common understanding of the significance attaching to the option clause in a publishing contract.
The option on an author's work can be of great importance to both parties. Options should be carefully negotiated, and the obligations that they impose should be clearly stated and understood on both sides. Option clauses covering more than one work may be undesirable, and should only be entered into with particular care.
[17.] The publisher should recognise that the remaindering of stock may effectively end the author's expectation of earnings.
Before a title is remaindered, the publisher should inform the author and offer all or part of the stock to the author on the terms expected from the remainder dealer. Whether any royalty, related to the price received on such sales, should be paid is a matter to be determined by the publisher and the author at the time of the contract.
[18.] The publisher should endeavour to keep the author informed of changes in the ownership of the publishing rights and of any changes in the imprint under which the work appears.
Most publishers will expect to sign their contracts on behalf of their successors and assigns, just as most authors will sign on behalf of their executors, administrators and assigns. But if changes in rights ownership or of publishing imprint subsequently occur, a publisher should certainly inform and, if at all possible, accommodate an author in these new circumstances.
[19.] The publisher should be willing to help the author and the author's estate in the administration of literary affairs.
For example, the publisher should agree to act as an expert witness in questions relating to the valuation of a literary estate.
[20.] Above all, the publisher must recognise the importance of co-operation with the author in an enterprise in which both are essential. This relationship can be fulfilled only in an atmosphere of confidence, in which authors get the fullest possible credit for their work and achievements.
[added note: This Code of Practice applies only to agreements whereby an author assigns or licenses an interest in the copyright of a work to a publisher, and does not apply to agreements whereby an author invests money in the publication of a work.]
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