Buying & Selling Rights in Literary Works:
A practical guide for publishers in Central and Eastern
Europe and the former Soviet Union
Lynette Owen
Rights & Contracts Director, Addison Wesley Longman Ltd
Center for Publishing Development
Open Society Institute - Budapest
1998
© Lynette Owen
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Contents
Chapter 1: Introduction: Copyright as the background to rights trading
Chapter 2: How to obtain information about foreign books
Chapter 3: How to obtain information about foreign books
Chapter 4: Negotiating terms
Chapter 5: Sample contracts for the purchase of rights
Chapter 6: Ordering film and remitting payments abroad
Chapter 7: Selling rights to foreign publishers
Chapter 8: Sample contract for the sale of rights
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CHAPTER 1
INTRODUCTION: COPYRIGHT AS THE BACKGROUND TO RIGHTS
TRADING
My aim in this electronic handbook is twofold: to provide a brief introduction to the
concept of copyright as the framework behind the licensing of rights in literary works
and to provide a short practical guide for publishers in Central and Eastern Europe
and the former Soviet Union seeking to buy rights from abroad or to sell rights in
selected publications of their own to foreign publishers.
Historical differences in political circumstances and commercial practice
It is important to remember that whereas publishers in the capitalist countries have
long traded with each other through the medium of rights sales against a background
of very similar concepts of domestic copyright, publishers in those countries which
existed for many years under communist rule operated under a very different
philosophy of copyright, although all countries in Central and Eastern Europe (with
the exception of Albania) and the then Soviet Union had joined one or both of the two
international copyright conventions. They also operated under a completely different
publishing system; publishing houses were all owned and heavily regulated by the
state, in terms of what they published and how they were able to contract with and pay
domestic authors. This method of payment was also applied in adapted form when
rights were acquired from abroad, and in most countries in the region, rights dealings
were channeled through state copyright agencies.
That situation has now altered radically in all countries in the region; since the early
1990s a large number of privately-owned publishing houses in many of these
countries, some of which have survived and prospered whilst others have simply
disappeared overnight or collapsed leaving substantial debts. Some state-owned
publishing houses have been privatised through a variety of means - staff buy-outs,
the attraction of money from domestic investors, or in some cases partial or majority
ownership by foreign investors. Other publishing houses continue in state ownership,
although many of these are suffering from financial problems.
It is hardly surprising under these circumstances that the overall picture of the
publishing industry in the region has been volatile, with spectacular successes and
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failures, over enthusiastic publishing in a market which changed rapidly from
monopolies to bitter competition, and the rise of piracy which has damaged not only
the interests of foreign authors and publishers but also those of legitimate local
publishers. The dedicated core of the industry has struggled to survive in a world
where almost simultaneously the doors opened to provide access to a flood of western
publications while at the same time the removal of state subsidies on paper,
production costs and book pricing led to rapidly escalating costs and the central state
book distribution channels collapsed.
Given what has happened in the last few years, it is perhaps inevitable that dealing
with foreign publishers, in particular those unfamiliar with markets in the region, may
pose problems in terms of different procedures, terminology or contractual practice. It
is therefore vital that both sides seek to understand and adjust to each other's
circumstances.
Very few western publishers of literary of popular fiction or popular non-fiction
visited the region regularly (if at all) during the communist period; however, a number
of educational and academic publishers (particularly those specialising in high-level
scientific, technical and medical publications as well as language teaching courses
and dictionaries) visited regularly from the 1960s onwards, in particular attending the
Warsaw and Moscow book fairs which then represented the most important
showcases of western publications for eastern bloc publishers and importers. Such
publishers may have a deeper understanding of the difficulties posed by changes in
the region, but they are also perhaps less likely to be dealing with the plethora of
small private publishing, publishing houses which have appeared in recent years. This
is because private publishers have understandably tended to concentrate on publishing
translations of western mass market fiction and non-fiction which will sell quickly in
markets which are hungry for such material.
This resulted in an anomaly in that the western publishers and literary agents who
control the rights in mass market works were often those with the least understanding
of the upheaval in the markets concerned (at least in the early years) and this
undoubtedly led to a variety of problems generated by both sides. In many cases,
unrealistically high sums were demanded for rights by the western owner, often
boosted by playing off several potential licensees against each other; a practice
common in the west but often disastrous in less experienced and less affluent markets.
On the other hand, overoptimistic buying by local licensees, sometimes leading to
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large debts of licence fees or payment for condition copies printed by foreign
publishers (in some cases leading to the collapse of the local publishing house); in
other cases, unauthorised overprinting of locally-printed editions with failure to
account for the additional copies to the foreign rights holder; and more blatantly,
completely unauthorised translations of foreign bestsellers by publishers who
disappeared as quickly as they had appeared, often damaging the interests of local
publishers who had acquired rights in the same title legitimately.
There are still therefore a number of obstacles to be overcome and experience to be
gained on both sides in the field of rights trading before the comfortable "common
ground" which prevails as a background to licensing between western publishers will
be achieved.
COPYRIGHT: A BRIEF OVERVIEW
1) Concepts of copyright
a) The western view
Two basic philosophies of copyright underlie the domestic legislation prevalent in the
west - firstly, the Anglo-Saxon or common law concept of copyright as a property
right which allows the first owner (normally the author) to freely negotiate with
would-be users of the work as he or she chooses, including full assignment of
ownership of the copyright to a user such as a publishing house. Full assignment of
ownership in this way is particularly common amongst educational and academic
publishers. This concept of copyright also recognises the independent right of users,
allowing them for example to take legal action against any infringement of the rights
granted to them. This system of copyright law underpins the legislation of both the
United Kingdom and the United States. In some countries there is also a quite
independent right (the "publisher's right") in the typographical layout of a work, and
separate; egal action can be taken against any infringement of this right.
The other western concept of copyright is that of the droit d’auteur commonly
employed in the legislation of continental Europe; this is much more heavily weighted
towards the rights of the author as creator and includes the concept of the moral rights
of the author (sometimes also referred to as the personal rights of the author). These
consist of the right of paternity (the right to be recognised as the author of the work)
and the right of integrity (the right not to have the work subjected to derogatory
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treatment). The exact regulation of such rights varies from country to country (for
example, in some countries they are perpetual and inalienable whereas under UK
legislation they can be waived; UK law also provides for them to expire at the same
time as the duration of copyright protection). Moral rights do not yet exist in
American copyright legislation.
b.) The communist view
During the time of communist rule, copyright legislation in the various countries in
the region viewed the author as the owner of the rights and restricted the grant of
rights to publishing houses, often specifying that they could acquire a right to publish
the work for a very limited period of time (perhaps as short as two years) or for a
specified print run. Additional rights such as the right to license translation rights
abroad were not normally granted to the local publishing house but controlled by a
central state literary agency in each country which handled all rights transactions to
and from foreign countries. Legislation in the region also provided for a wide range of
circumstances in which an author's work could be used either without permission or
payment, or without permission but wit payment made according to a regulated scale
of fees. Local authors were paid according to the type of work in question and for a
designated print run rather than the actual number of copies sold, and the legislation
included specific directions on what should be included in contracts signed between
authors and publishers. Moral rights were included in domestic legislation but were
normally inalienable and perpetual, based on the assumption that the state (in the form
of a central literary agency) would administer such rights if the author's heirs were
eventually unable to do so.
2) Duration of copyright
The period of copyright protection varies according to the domestic legislation of each
country; discrepancies can lead to a situation where a work is still protected in on
country but has passed into the public domain or "gone out of copyright" in another.
In the capitalist countries of the west, the period of protection was for many years the
lifetime of the author plus fifty years, but from July 1st 1995 this period was
harmonised in the countries of the European Union to the lifetime of the author plus
seventy years. This change means that once again copyright in the United Kingdom is
out of harmony with that of the United States; the USA still retains the fifty-year
period, although an extension to this period is now under discussion.
3) Copyright recognition between countries
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Recognition of copyright obligations between countries is achieved through common
membership of one or both of the international copyright conventions: the Berne
Convention (established in 1886) and the Universal Copyright Convention
(established in 1952); alternatively, through membership of a bilateral copyright
convention or trade treaty which includes provisions on copyright.
Each convention imposes basic requirements which must be complied with through
the medium of the domestic copyright legislation of each member state. The basic
requirements of Berne are a minimum period of copyright protection of the lifetime of
the author plus fifty years, and no formal copyright registration procedure. UCC
requires a minimum protection period of the lifetime of the author plus twenty five
years, a requirement for a copyright notice with the copyright symbol © to appear on
literary works; it does allow for a formal copyright registration procedure. Most
western countries belong to both conventions. Unfortunately membership of one or
both of the conventions does not guarantee observance of copyright; piracy of
intellectual property is rife in many countries in the region, and in particular in
Poland, Russia and many other former Republics of the Soviet Union.
At the time of writing, Armenia, Azerbaijan, Kyrgyzstan, Turkmenistan and
Uzbekistan do not belong to either convention.
Since the fall of communism, almost all countries in the region have introduced new
domestic copyright legislation with the aim of introducing laws more appropriate for
countries moving from a command to a market economy. The new laws have
undoubtedly improved legal standards for the protection of intellectual property but
the provisions for enforcement have on the whole proved less than adequate to date.
Education of authorities such as the police and customs officers is crucial. A number
of countries (e.g. Russia) have had to introduce supplementary legislation providing
criminal penalties in an attempt to control the problem.
Those countries seeking to become members of the European Union have either
already introduced a term of protection of seventy years post mortem auctoris or are
seeking to do so.
4.) Copyright as a framework for rights trading
A publisher in any country subscribing to the philosophy of copyright through a
domestic copyright law is under a legal obligation to operate in accordance with the
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provisions of that law. If that publisher wishes to acquire rights from countries which
belong to a common international copyright convention, there is a clear obligation to
seek proper authorisation from the rights holder of the work in question. If a licence is
granted, the foreign rights holder must recognise that the work will receive protection
to the extent afforded by the domestic copyright legislation of the country of the
licensee. Thus, a British work translated into Russian will currently be protected for a
period of fifty years from the death of the author, even if the work is now protected
for a period of seventy years in the UK itself. A Russian work translated into English
in the UK would be entitled to a term of protection of the life of the author plus
seventy years.
In addition to the question of the copyright in the underlying foreign work, there will
of course be a separate copyright in the translated text which will run for the lifetime
of the translator plus the term provided for in the domestic legislation in the country
of the licensee. In Central and Eastern Europe, The first owner of the copyright in the
translated text will normally be the translator, and publishers would be well advised
either to seek an assignment of copyright if their local legislation allows, or at least an
exclusive licence for the use of the translated text.
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CHAPTER 2
HOW TO OBTAIN INFORMATION ON FOREIGN BOOKS
One of the most problematic areas for many publishers in Central and Eastern Europe
has been how to obtain regular and up-to-date information on foreign books which
might be of interest to them for local publication.
In the years under communism, all publishers in the region were owned by the state
and many tended to have a monopoly in publishing in a particular subject area, e.g. a
single state medical publisher, a single state publisher for agriculture and so on. This
greatly simplified matters for a foreign publisher actively seeking to place rights in the
region since there was usually only one potential licensee in each country. Those
western publishers active in the region usually sent catalogues regularly to appropriate
state houses. From the perspective of publishers in the region, however, the situation
in the capitalist countries was confusing since many different publishers in each
western country published competing books in the same subject areas. In addition,
British and American publishers both published in the English language and in some
subject areas (in particular high level scientific and medical books) publishers in
Germany and the Netherlands also published original books in English. This can still
pose considerable problems for publishers in Central and Eastern Europe seeking to
sell rights in their own books abroad.
Publisher's catalogues
Since 1990. thousands of new private publishing houses have been established in the
countries of Central and Eastern Europe and the newly independent countries which
once formed part of the Soviet Union, and a number of existing state houses have now
been privatised. All have been forced to diversify in order to survive; some may have
commenced with a special publishing area in mind but may have been forced to
change direction due to fierce competition in the marketplace, a factor which did not
exist when publishing houses were state monopolies. Although the relaxation of state
control of the publishing houses combined with the fact that they change addresses,
staff and subject areas so frequently (and indeed may go out of business within a short
period whether by design or through bad luck) has made it extremely difficult for
many western publishers and literary agents to know that they exist or (once contact
has been established) to keep track of the changes. This can make the regular supply
of appropriate catalogues to appropriate recipients difficult. Obtaining catalogues
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from western publishers (and literary agents) is however the best way to obtain
regular and detailed information on their specialist subject areas and range of authors,
and to obtain a "feel" for the type and style of books which they publish.
Book fairs
Book fairs provide an ideal opportunity to obtain catalogues from western publishers
and also to see at first-hand what they are producing. The size and scope of book fairs
vary enormously; the Frankfurt Book Fair, held annually in October, is by far the
largest; in 1997, over 5500 publishing houses attended from all over the world,
exhibiting books in all subject areas at all levels. Other significant annual fairs in the
west are London (held in March; most major British publishers exhibit); Bologna
(held in April; an international fair for children's and educational books) and
BookExpo America (formerly the American Booksellers Association Convention)
held in June; most major American houses exhibit. Within Central and Eastern
Europe there are now many different fairs; Warsaw, Prague, Budapest, Bucharest,
Moscow, Sofia and most recently the Baltic Book Fair, which rotates between the
three Baltic States. The Moscow Book Fair, now held annually, is much diminished in
size. Western attendance at these events (with the exception of Warsaw) has tended to
diminish; this is because of the cost and increasing number of these events, which
now tend to provide access only to domestic publishers rather than to a range of
publishers from different countries in the region. More publishers from Central and
Eastern Europe can now be found at western book fairs; Frankfurt in particular
remains the key event in the book industry calendar. Local fairs may however include
national exhibits of, British, America, French and German books organised by the
British Council, the USA, France Edition and the Börsenverein which give an
overview of new publications.
Most established western publishers employ specialist rights staff who are responsible
for promoting and negotiating the sale of rights and it is these staff who should be
contacted, either in person at book fairs or by mail when applying for rights.
Publishing directories
A major source of general information on the international publishing industry is that
of publishing directories. The two most important directories are Literary Marketplace
(covering American and Canadian publishers) and International Literary Marketplace
(covering publishers in the rest of the world). Both are published annually by R. R.
Bowker (an imprint of the Reed publishing group) and can be ordered from Bowker at
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Maypole Road, East Grinstead RH19 1HH, United Kingdom. These directories
contain a country-by-country listing of all major publishers together with their
addresses, telephone and fax numbers, names of key staff and their areas of
publishing interest. In most cases the entry also lists the date the company was
founded and the number of titles published in the previous year. They provide an
excellent starting point for identifying suitable foreign publishers but unfortunately
they are expensive (UK prices 155 pounds sterling and 165 pounds sterling
respectively for the 1998 editions).
Although the information on western publishers is generally excellent, the changing
situation in the publishing industries in Central and Eastern Europe means that the
coverage of publishers in those countries can be incomplete and out of date, making
the directories less useful for western publishers actively seeking contacts in the
market. Publishers can include details of their houses in these directories free of
charge and entries can then be updated annually. To submit details for International
Literary Marketplace, contact the Marketing Department at Reed Reference
Publishing, 121 Chanlon Road, New Providence, NJ 07974, USA. UK and
Commonwealth publishers are also covered in Cassell's Directory of Publishing
published annually by Cassel PLC (Wellington House, 125 Strand, London WC2R
OBB, United Kingdom; price of 1998 edition 60 pounds sterling). Cassell also
produce a directory of European publishers from time to time.
Trade journals
Another source of information on new publications is through the medium of national
trade magazines and journals. In the UK the two main journals, both published
weekly, are The Bookseller (details of overseas subscription rates from J.Whitaker, 12
Dyott Street, London WC1A 1DF) and Publishing News (43 Museum Street, London
WC1A 1LY). In the United States the weekly journal is Publishers Weekly (249 West
17th Street, New York, NY 10011, USA); in Germany, the Börsenblatt (Grosser
Hirschgraben 17-21, Postfach 100442, 60311 Frankfurt am Main, Germany). Trade
journals usually include advertisements for major new titles placed by the publishers
themselves, regular editorial features on publishing areas such as children's books,
religious books etc.; weekly charts of bestselling titles, news features on the book
trade and (depending on the journal) individual book reviews.
Educational, academic and literary journals
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In addition to the trade press, there are a number of other publications which provide
lengthy reviews of selected titles; in the UK, three special Times publication, the
Times Literary Supplement (coverage of up market fiction and non fiction titles plus
some academic titles); The Higher (higher education titles) and the Times Educational
Supplement (school books and educational equipment). In addition there is the
London Review of Books which covers a range of serious literature. In the US there is
the New York Review of Books.
How can publishers in Central and Eastern Europe obtain access to these directories,
trade journals and other publications, particularly if the prices are high? It may well be
worth checking whether the national publishers's association or the local offices of the
British Council or the Soros Foundation either have them already or might be
prepared to purchase them for their libraries.
Another source of information may be lists of foreign publications drawn up by
specialist advisors to bodies such as the Soros Foundation, in particular for
educational and academic books in specific subject areas. Such lists are often used as
the basis of book selection for subsidised translation programmes.
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CHAPTER 3
HOW TO APPLY FOR RIGHTS
Who controls the rights?
The question of who owns or controls the rights in foreign titles can often be
problematic for publishers in the region. In the case of educational and academic
titles, the situation is usually fairly straightforward in that it is normally the publishing
house which controls the rights, either through a full assignment of copyright
ownership from the author or because the author has granted the publishing house
control of a wide range of rights in addition to basic publishing rights in the original
language. Relatively few authors in these categories are represented by literary agents.
Complete ownership of copyright by the publishing house will be indicated by a
copyright line in the book itself.
In the field of fiction and popular non-fiction, the situation may be far more complex;
ownership of copyright is normally retained by the author, but few authors wish to
deal with the sale of rights themselves. In some cases, control of translation rights
may still have been delegated to the original publisher, but in other cases these rights
may have been retained by a literary agent representing the author. Many western
publishers who publish titles whose rights are controlled elsewhere include in their
catalogues a "rights list" insert giving details of who controls the rights in each title;
others print this information alongside the catalogue entry for each title. Translation
rights in a British novel may be controlled by the author's agent. A novel by an
American author listed in the catalogue of a British publisher could have been
acquired under licence from an American publisher; in such cases, translation rights
may be held by the American publisher or perhaps by the American author's literary
agent, and it is these details which will be printed in the catalogue.
There may however be a further complication if British or American publishers or the
literary agents representing authors in their catalogues have chosen to further delegate
control of translation rights in particular territories to subagents; such agents issue
lists of titles themselves. If there is no clear referral address in a publisher's catalogue,
an enquiry to the Rights Department of the publishing house should establish whether
rights are controlled by the publisher or whether applications should be addressed
elsewhere.
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The situation on control of rights can be complex and it is understandably frustrating
if a would-be licensee writes to a western publishing house only to be referred to the
author's agent, then in turn to a local sub-agent. A number of publishers in the region
have urged western publishers and literary agents to deal direct rather than through a
chain of intermediaries, and more western publishers and literary agents representing
authors of books for the general market have now taken the step of visiting some of
the markets concerned. It must however be remembered that much of the income
generated by such publishers and agents on behalf of their authors comes from very
substantial rights deals between affluent capitalist markets, and there is thus a
temptation to subcontract the handling of rights sales in less lucrative markets to
"specialists", particularly when such markets are still perceived as volatile and risky.
How to apply
Let us assume that the publisher will be the first port of call in order to establish who
owns the rights. Application letters should be addressed to the Rights Manager; if
copies of Literary Marketplace or International Literary Marketplace are available, the
names of rights staff are normally listed in each publisher entry together with the
address and fax number of the publishing house.
It may be that a title has been identified from a review, or perhaps from a copy
available to the applicant in a library, but that the full address of the publishing house
is not available. The local offices of the British Council, the Soros Foundation or the
Commercial Department of the embassy of the appropriate country may be able to
assist in providing the address of the publishing house or at least the address of the
trade association of publishers in the country concerned who can forward on any
application. This last method is however a rather slow way in which to make an
application.
If the rights applicant has not yet had a chance to assess the book in question, the
initial application letter should ask if the rights are available and request a reading
copy; publishers normally supply these free of charge. It is helpful to specify clearly
what type of rights may be required: translation rights, reprint rights in the original
language or perhaps a bilingual edition if material in the local language is to be added
to, say, an English language course or a dictionary. If contact is being made with a
western publisher for the first time, it will be helpful to provide some information
about your company; how long it has been in existence, how many books have been
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published, your areas of interest; it is also helpful to provide brief details of any
licences you have acquired from other publishers in the same country.
If the rights are still available and controlled by the publisher, they will usually send a
reading copy and confirm an option on the relevant rights, often for a period of three
months. If an option is granted in this way, it can be assumed that the option holder
has an exclusive period of time in which to assess the book and its prospects in the
localmarket before it is offered to another publisher there. If the title in question is
already on option with another publisher in the country of the applicant, a second
option may reserved, or the publisher may simply not interest and contact the
applicant if the rights become available.
Some publishers specialising in language teaching materials or dictionaries may be
reluctant to grant local reprint licences; this may be because they are seeking to set up
direct selling or local agency arrangements for their own editions in the market. There
is also a (justifiable) fear that a licensed low-cost edition could leak into other markets
and affect sales there.
If the book in question is either extremely topical or perhaps a new book by an author
with an international reputation, some publishers or agents may decide not to grant
sequential options but to offer the books to several publishers in the same country
simultaneously and to invite the best offer. This is termed a "multiple submission"; if
deadlines and minimum offers for the rights are specified, this is an "auction", a
technique frequently employed in western publishing for major authors or key
projects and much favoured by agents. If either of these techniques is employed, each
publisher must be told that they are competing for the book and the terms of the
competition.
If the applicant has already had an opportunity to study a book before approaching the
rights holder (e.g. a library copy) it will save considerable time if as many details as
possible are included in the initial application letter, for example the intended first
print run and the expected price in tenge. As it is now extremely difficult to predict a
fixed retail price for a book in most countries in the region given factors such as
inflation, devaluation of currency and the diversity of distribution channels, it is
important to clarify to the rights holder what price is being quoted. In most cases,
licensees prefer to work on the price that they themselves will receive from
distributors, which in practice will be around 30% lower than the price at which the
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same book will be sold in a bookshop or on a street bookstall. The western publisher
or agent needs to be very clear on this since royalties for licences between publishers
in capitalist countries tend to be based on the retail (or the recommended retail) rather
than on the distribution price, with royalty percentages calculated accordingly.
What about subsidies?
It may sometimes be possible to obtain rights in western titles via a subsidised
translation or local reprint scheme. Some western countries run subsidy programmes
to encourage translations of their books in countries where publishers might not
otherwise be able to undertake such editions. The organisation of each scheme varies
from country to country, as does the type of book eligible for a subsidy.
The USIS programme administered by the USIA (United States Information Agency)
assists with the acquisition of translation and low-cost English language reprint rights
in a range of American titles designed to foster cultural understanding of the United
States; support is offered to titles in subjects such as philosophy, politics, sociology,
history and media studies. Information can be obtained from the Public Affairs
Officer at any American Embassy or direct from the Book Programs Division, USIA,
Washington, D.C. 20547, USA. The USIA often acts as an intermediary with the
rights holder to arrange the licence.
The French government runs a subsidy scheme for licences for French books via the
Ministère de la Culture et de la Francophonie, Direction du livre et de la lecture,
Bureau de la promotion du livre francais, 53 rue Verneuil, 75007 Paris, France. For
this scheme it is normally the Frenc publisher who will send in the application on
behalf of the licensee.
In Germany, a translation subsidy scheme is run by Internationes, Kennedyallee
91-103, D-5300 Bonn 2, Germany. German fiction, quality non-fiction, books for
young people and scientific books are eligible, with application normally to be
submitted via the German publisher.
For a long time, no formal British licence subsidy scheme was available; the British
government Know-How Fund has provided aid funding to the publishing industries of
Central and Eastern Europe in the form of specialist training in the countries
concerned and through training attachments with British publishing houses. The
British Council is sometimes prepared to assist with the purchase of duplicate film, in
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particular when this is required for a local reprint licence for an English language
course.
The Know-How Fund also sponsored the Low-Priced British Books Scheme (LPBB)
which enabled British publishers to sell selected titles in the fields of business and
economics in English at special low prices in Central and Eastern Europe. However, it
was a condition of the scheme that English books subsidised in this way could not
then be licensed for translation in the region. In early 1998, the British Books for
Managers translation subsidy scheme was launched; details can be obtained from
Education for Change, United House, North Road, London N7 9DP, United
Kingdom.
In addition to this, the Soros Fundation has been prepared to assist with the translation
of key titles in the humanities and social sciences.
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CHAPTER 4
NEGOTIATIONG TERMS
If the financial terms of a licence agreement are to be negotiated directly with a
foreign publisher rather than via a subsidy programme, the publisher or agent
controlling the rights will require basic details, i.e. the intended initial print run and
the estimated local price with confirmation whether this will be the price received by
the localpublisher from their distributors rather than the end price to the customer in
the bookshop.
External copyright material
It will be important for the potential licensee to clarify whether the terms then quoted
by the foreign publisher are fully inclusive: for example, if the book in question
contains extensive amounts of text quoted from previously published sources (e.g. an
anthology of poetry or short stories, or a work of literary criticism containing many
quotations) or if it is heavily illustrated, do the terms include the reuse of that
material? It is often the case that the original publisher has had to obtain permission
and pay fees for the use of such material in his own edition and the permission
requested (or the permission actually granted) may have been restricted by the outside
copyright owners. For example, a British educational publisher producing a history
textbook for secondary school use may well have cleared permission for the use of
external copyright material from museums and commercial picture agencies only for
his own English language edition, and perhaps for the restricted geographical territory
of the United Kingdom and Commonwealth, or the world excluding the United
States. Many external copyright holders specify that reclearance is required for reuse
of the material in another language or under an imprint other than that of the original
applicant.
Partial clearance of this kind is often logical since the English language edition is
unlikely to sell outside those markets; to clear permission for world rights including
the right to sublicense in any language world-wide will probably more than double the
cost of permissions clearance. If restricted permission of this kind has been obtained,
the British publisher will not have the right to grant licences including the reuse of
this materially; it will be necessary to reclear permission and pay any additional fees
required by the external copyright holders. A warning sign here is a long list of
acknowledgements to external copyright holders printed in the book itself.
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The cost of such reclearance both in terms of administrative time and fees can be
considerable and can sometimes make a translation licence unciable. If a licence is to
proceed, it will be necessary to decide whether the original publisher will undertake
the reclearance work on behalf of the licensee and then recharge the total cost of
reclearance, including a small administrative charge (perhaps 10-15% of the total fees
charged); alternatively, whether they will provide the licensee with a list of the names
and addresses of the relevant copyright holders to enable the licensee to undertake the
reclearance work. A sympathetic western publisher may undertake the work and will
try to negotiate lower fees than those charged for the original clearance, since the
overall income from a licence may be modest; however, since many of the copyright
holders may be museums and commercial picture agencies, this cannot always be
guaranteed.
For illustrated books of general interest, it may be that the western publisher has
commissioned photographs or illustrations especially for the book in question; in such
cases, they may well own the full copyright. This is very often so in the case of
publishers producing full colour books designed for coeditions, such as Dorling
Kindersley. Even if the publisher does not own the copyright, a publisher expecting to
license many foreign language editions may well have invested from the start in
clearing world rights in all languages with the external copyright holders. This
removes the need to undertake reclearance every time a foreign edition is licensed, but
the publisher may well recharge a proportion of the permission fees to each licensee.
All this demonstrates that the rights situation for any book which clearly contains
material drawn from outside sources MUST be carefully checked with the foreign
publisher. If in doubt, ask "Do the financial terms you have quoted cover the right All
this demonstrates that the rights situation for any book which clearly contains material
drawn from outside sources MUST be carefully checked with the foreign publisher. If
in doubt, ask "Do the financial terms you have quoted cover the right to include all
textual and illustrative material drawn from outside sources in my licensed edition, or
are further fees payable? Who will be responsible for reclearing any permission
needed and paying any fees?"
Printing film
Another key factor which may affect whether agreement can be reached on terms may
be the price of duplicate film if this is required, either for an illustrated book or
20
perhaps for a whole book such as a dictionary or language course which is to be
reprinted under licence in the original language. Film will almost certainly be needed
in the case of books containing colour illustrations; it may not be necessary for books
containing only black and white line drawings but may still be needed for books
containing black and white photographs if a highs quality of reproduction is required
(e.g. medical books containing radiographs). In all such cases, the question of film
should be discussed at the earliest stage of negotiations; if the film is unavailable or
prohibitively expensive it may not be possible to finalise the deal. The licensee will be
required to provide the exact technical specifications required so that the foreign
publisher can obtain an accurate quotation from the printer; the foreign publisher
should specify clearly how long the price quoted will be valid.
Many western publishers are not prepared to lend their own original film to licensees
in case of loss or damage while it is in transit or in the possession of the licensee;
there may also be a problem if the film is unavailable if the original publisher needs to
reprint his own edition. Some may be prepared to lend original film in return for a
hire fee and will almost certainly require that the film is insured whilst in transit and
in the possession of the licensee. The majority of publishers prefer to manufacture
duplicate film for licensees; the cost of this can be substantial in the case of
full-colour books and some publishers may require full or partial prepayment before
ordering the film, especially if they are dealing with a licensee for the first time.
The question of whether film will be bought must be clarified at an early stage of the
negotiations. If the price quoted is beyond the means of the licensee, they may wish to
reproduce the illustrations directly from the original edition of the book. Some
western publishers may refuse to agree to this if they feel that the resulting
reproduction quality will not be sufficiently high; some may require to see some
sample illustrations reproduced in this way before deciding whether to authorise
reproduction by this method.
LICENCE TERMS
Geographical market
Much depends on the language rights required and the licensee's ability to distribute.
For example, if the book is to be translated into Russian the question of the sales
territory must be carefully discussed.
21
Western publishers may be reluctant to grant world Russian rights or rights for all the
former Soviet Republics unless they are sure that the licensee can realistically service
these markets. For translation rights in smaller geographical markets, foreign
publishers may be preparated to grant world rights.
Financial terms
The question of the level of financial terms for a licence and the payment structure
can be complex, particulary if the foreign publisher or literary agent from whom
rights are sought is not familiar with publishing circumstances in the region. In the
west the customary method of payment (for domestic authors and for most licences to
publishers in other western countries) is an advance payment made on signature of the
contract, followed by a royalty calculated as a percentage of either the full retail (or
recommended retail) price of the book or perhaps as a higher percentage of the sum
received by the publisher after granting discount to distributors or retailers. In either
case, the royalties are calculated on the actual number of copies so in a given period
of time, rather than on the number of copies printed; sales are normally calculated
either once or twice a year. This system has been in use for many years in capitalist
countries and assumes that publishers can track actual sales very accurately, including
any adjustments which may have to be made if copies are returned to the publisher's
warehouse unsold. It assumes that the majority of publishers warehouse their own
books, have access to a stable distribution system and have computerised stock
control systems.
The whole question of stockholding and distribution has of course altered radically in
the countries of Central and Eastern Europe and the former Soviet Union in recent
years. Publishers no longer print quantities to order and deliver them immediately into
a state-controlled distribution system without holding stock themselves. A small
number of publishers in some countries have now been able to introduce
computerised stock control systems; they can then implement the "western" system of
an advance against periodic royalty accounting on actual sales. At the time of writing
they are however in the minority. It is also understandable that some western
publishers and literary agents (in particular those who have experienced problems
with some publishers in the region failing to pay, or printing more than the contracted
quantity and failing to account for the additional copies) have been nervous of
accepting a deferred payment system, preferring instead to negotiate a lump sum to
cover a specified print run, perhaps payable entirely on signature of the licence
contract or in two or more instalments. A common arrangement would be for half of
22
the lump sum to be paid on signature of the contract and the balance on publication or
by an agreed "latest date"; alternatively, 25% on signature of the contract, 25% on
publication, 25% six months after publication and the balance twelve months after
publication. The more meticulous publishers and agents will tie each instalment to an
actual calendar date. The lump sum will normally be calculated on the basis of a
royalty percentage calculated on the estimated wholesale price provided by the
would-be licensee.
Many translation licences negotiated between western publishers are based on a
royalty calculated on the full retail price paid by the end user (less any tax element),
and the initial level of royalty here could vary from as low as 5% (for some children's
books) up to 7½% for a novel or academic title. If calculations are to be made on a
wholesale rather than a retail price, the royalty percentage will normally be higher to
allow for the discrepancy of around 25-40! between the price received by the
publisher and the price at which the book will be bought by the end purchaser. The
lup sum payment might therefore be calculated on the basis of a royalty of 9-10% of
the wholesale price. Some publishers will include in their contracts an inflation-proof
clause to allow for a pro-rata top-up fee payable on publication if the final wholesale
price is higher than the price estimated when terms were negotiated. This is
understandable when dealing with countries where inflation is escalating.
The financial terms of a licence are open to negotiation between the parties; it may be
that initial deals with a new licensee impose quite stringent terms but that more
generous terms can be negotiated for later deals once the licensee has demonstrated
that they are a reliable partner. Some western publishers and literary agents have
unrealistic expectations of the market and may refuse to deal if they consider the
amounts too small; however, those unfamiliar with the market may need to recognise
that local publishers are often working in difficult circumstances and that licence fees
which seem low by western standards may represent a considerable investment for the
licensee. Some publishers may find it difficult to pay an advance because of cash flow
problems; they may seek to offer a higher royalty rate to compensate for this. From
the western publisher's perspective, an advance payment (even a modest one) is a
token of good faith that the deal will go ahead; most licensee fails to fulfil the
contract, as some compensation for the author and the western publisher. A higher
royalty may sound attractive but is of little use if the book never appears. Many
western publishers will refuse a licence without at least a token advance payment to
"seal the deal".
23
Inclusion of additional rights
If the licensee requires any rights other than the basic right of publication in his own
language, this should be raised at the negotiation stage; most translation licence
contracts provided by publishers or agents familiar with the region will be restricted
to volume publication rights. This would mean that the right to sublicense rights
elsewhere (e.g. extracts from the translation in a magazine or newspaper, or perhaps
the inclusion of a translated poem or story from a collection in an anthology published
by another local publisher) are not automatically included. If the licensee requires
such rights and intends to derive revenue from exploiting them, a share of the
proceeds will have to be passed on to the licenser; that share could range from 50% to
as high as 90%.
A number of book club operations are now being launched in the countries of Central
and Eastern Europe; the giant German publishing group Bertelsmann has operations
in Poland, Hungary and the Czech Republic. If the local publisher acquires exclusive
volume publication rights from a western licensor, it should not be possible for the
licensor to make separate arrangements for a bookclub edition. If the book in question
is a likely candidate for book club use (bookclubs usually offer popular fiction and
non-fiction to their members) the licensee publisher should ask for bookclub rights to
be included in the contract to enable them to deal direct with any bookclub operation
in their country. The licensee would then be able to supply printed copies of the
translated edition to the book club; if these are supplied at a royalty-inclusive price to
the book club, an agreed royalty on the sum received should be paid to the western
licensor; if the book club pays a separate royalty to the local publisher, an agreed
proportion of that royalty should be passed on to the western licensor (usually from
50-80%).
Duration of licence
The duration of the licence is subject to negotiation. The contract may be for an
agreed number of copies, and it may then be possible to cover any additional copies
by an addendum to the original contract. If however the western licensor is prepared
to work on the basis of an advance against royalties on actual sales, paid once or twice
a year, the contract should contain a clear definition of the duration of the contract.
Few western publishers or agents are now prepared to agree to a licence for the full
term of copyright, even if there are clauses allowing for the reversion of rights in the
translation is allowed to go out of print or if the licensee breaches the contract. It is
24
more common that the contract will be for an agreed number of years and there may
then be provision for renewal, subject to a renegotiation of the financial terms. A
minimum period of five years from the date of the contract would seem reasonable.
Currency
In the west, the licensor will normally specify payment in his own currency, e.g.
sterling for British publishers, dollars for US publishers, deutschmarks for German
publishers and so on. However, as the US dollar is normally the preferred hard
currency in Central and Eastern Europe, it may be easier to specify contract payments
in that currency. This should always be checked at negotiation stage if the licensor is
not a US publisher.
Publishers in most countries in the region may either hold hard currency accounts or
may use their local currency account to purchase hard currency for remittance abroad.
If an invoice is required for each payment as well as the licence contract itself, the
licensor should be alerted to this at negotiation stage so that they can provide suitable
documentation, bank account details etc.
Special points for same-language reprint licences
There may be occasions when a publisher wishes to acquire the right to reprint a book
exactly as it appeared in the original language, e.g. a language course or a dictionary.
The aim would be to make a well-known "branded" product such as an Oxford
University Press dictionary or a Longman language course available in the market at a
lower price than that of the original publiser's edition.
The advantage to the original foreign publisher may be to gain access to a market
where perhaps they do not have direct distribution facilities, either to the book trade
or perhaps to state schools where courses may require approval from the local
Ministry of Education. Not all western publishers of this type of material are now
prepared to grant these licences, particulary if they are seeking to undertake direct
distribution of their own editions either through an exclusive local distribution
arrangement or perhaps through a local representative of their own. There may also be
a fear of "leakage" into other markets, even if the locally-licensed edition carries a
market restriction notice; this is the down-side of freedom of movement across
borders after the collapse of communist rule. Western publishers, even if they are
prepared to grant licences, may be reluctant to do so for a wider market than the
country of the applicant. There are also problems in that reprint applications are
25
almost always for the "star" titles in the list and there may be ill-feeling if a local
reprint licence is granted and then withdrawn when the western publisher wishes to
set up distribution arrangements for his own edition.
There is therefore no guarantee that all such licencer applications will be granted. The
potential of English language teaching material in the countries of Central and Eastern
Europe and the former Soviet Union is huge and (copy for copy) western publishers
make more from selling their own editions than from granting licences, provided they
can access the market.
If rights are granted, royalty rates are always likely to be higher than the rates for
translation licences, on the grounds that the book will simply be reproduced without
the licensee incurring any editorial or translation costs. If the financial terms are to be
based on a royalty on the distribution rather than the end retail price, the royalty level
is likely to be between 10-15%. If the local licensee wishes to publish under a joint
imprint or to use a "branded" name such as Oxford, Cambridge, Longman etc., this
must always be agreed with the foreign publisher and some publishers do charge a
separate fee for the use of their name.
Terms for coeditions
The question of negotiating financial terms for coeditions (where the foreign
publisher arranges to print copies of the translated edition on the basis of film
provided by the licensee) can be complex as policies vary from company to company.
Likely candidates will be illustrated children's storybooks and popular non-fiction
titles for both children and adults, heavily illustrated in colour. Topics could range
from art to cookery, gardening, do-it-yourself, popular health, craftwork, travel guides
and "how-it-works" titles.
A number of western publishers producing books of this kind have based their entire
businesses on coordinating the printing of many foreign language editions
simultaneously, thus producing very large print runs and reducing the unit printing
cost to each participant in the coedition. Publishers of this kind produce elaborate
advance sales material, usually in the form of a "dummy" book containing sample
pages and it is on the basis of this that they aim to presell rights in order to coordinate
as many editions as possible together with their own first printing. Other foreign
editions and recorders may be undertaken as subsequent printings. The origination of
26
books of this kind necessitates many editions worldwide in order to defray the very
high costs of commissioning complex artwork or lavish photography.
Such publishers are therefore understandably reluctant to agree to foreign publishers
purchasing film and manufacturing their own editions, since this reduces the overall
size of a potential coedition. However, publishers unfamiliar with the region may not
be aware that - even on the basis of large combined printings - they may not be able to
offer a unit cost appropriate for markets where book prices are still substantially lower
than those in the west. In such cases it will make little sense for the western publisher
to insist on an unacceptable price. These publishers have an understandable desire to
control the print run, particularly when some of them have had experience of
publishers in the region who purchased film and then printed many more copies than
were specified in the licence contract.
If a coedition is likely to be viable, the foreign publisher will need to know how many
copies are required, on the basis of the licensee providing film of the translated text to
the specifications of the foreign publisher and laid out to fit round the illustrations as
they appear on each page (for this purpose, the foreign publisher will either supply
working copies of the original edition if this has already been published, or a grid
layout for each page.
The foreign publisher will quote a unit price for the required quantity; it is important
that it is clear whether this price includes elements such as the royalty, packing,
insurance and transport of the books to an agreed destination. Some publishers may
allow for an additional percentage of free copies for promotional purposes. Transport
is a particularly important element; the quotation could be ex-works (the unit price
per copy at the printers, without packing or transport); FOB (free on board) a port in
the country where the printer is located (this price will include packing and transport
to the docks, with the foreign publisher's responsibility ending when the consignment
is half-way over the rail of the ship and the licensee responsible for onward transport,
and insurance). The price most commonly quoted is CIF (cost, insurance and freight)
to a port in the country of the licensee, or to a port in the nearest country if the country
of the licensee is landlocked. This last price includes packing, insurance and transport
to the designated port, leaving the licensee responsible for unloading and customs
clearance charges and onward transport to a warehouse. Relatively few publishers are
prepared to quote a price delivered into the licensee's warehouse, since they may be
unfamiliar with local import arrangements and transport facilities, particularly if the
27
consignment has to pass through several different countries. Publishers are also
unlikely to quote for transport by airfreight, since this can be extremely expensive.
Shipment of books to landlocked countries may therefore be problematic.
The inclusion of the royalty element in the coedition price can be administratively
convenient for both sides, since the books are then purchased outright. The
disadvantage to the purchaser is that they have to pay the royalty in advance even if
the book does not sell successfully. For higher priced books, some publishers may be
prepared to specify the royalty element separately from the unit price of the book
itself, as an advance against royalties based on actual sales of the translation, but this
type of arrangement does presume that the licensee has adequate facilities to track
sales accurately. Some foreign publishers may be reluctant to agree to separate royalty
accounting in markets which they consider volatile or with untried local partners.
As with straightforward licence agreements, it is important to establish at an early
stage of the negotiations in what currency prices will be specified. Many coedition
publishers undertake printing in countries other than their own; for example, many
British publishers print in Hong Kong and Singapore, whilst some publishers of art
books print in Italy. Many publishers are able to quote prices which include an
element to guard against possible currency fluctuations. If the licensee requires prices
to be quoted in US dollars, this should be discussed at an early stage with
non-American publishers. The publisher should always state clearly how long any
price quoted will remain valid.
The question of when payment should be made for coeditions is very important and
should be discussed at the earliest stage of the negotiations. Many publishers
specialising in this type of book may require that at least a proportion of the total
amount is paid at the point the coedition order is first placed. This not only represents
some security that the deal will go ahead, but also recognises the fact that the original
publisher will be investing a considerable amount of money in origination, paper and
printing on behalf of the various coedition partners. The exact timing of payments
may vary according to the policy of the western publisher; some may require half of
the total when the order is placed and the balance on shipment of the books or by an
agreed number of days after that date. Others may agree to accept one third of the
total when the order is confirmed, one third on commencement of the printing and the
balance an agreed number of days after shipment. Some publishers may require that
payment is guaranteed against an irrevocable letter of credit drawn on a major bank in
28
their own country. This may seem to indicate a lack of trust on the part of the foreign
publisher, but the sums they are investing are substantial and they may understandably
be cautions when dealing with a new market and an untried licensee.
The question of timing is crucial to any coedition deal since the foreign publisher will
be coordinating orders for several overseas publishers. They will therefore impose
very tight schedules on each licensee for the supply of film of the translated text,
checking of proofs, provision of shipping instructions etc. as each stage of the
coedition progresses; if one coedition partner fails to meet a deadline, the entire
schedule for the printing could be delayed. Some coedition publishers include
expensive penalty clauses in their contracts to avoid delays.
29
CHAPTER FIVE
SAMPLE CONTRACTS FOR THE PURCHASE OF RIGHTS
i) Translation licence: lump sum agreement
This contract covers a straightforward purchase of translation rights from a foreign
publisher, with manufacture to be undertaken by the licensee. Payment is on the basis
of a lump sum to cover an agreed print run.
MEMORANDUM OF AGREEMENT made this
19
Between:
day of
(name und address of licensee)
(hereinafter termed the Publishers)
of the one part, and
(name and address of foreign publisher)
(hereinafter termed the Proprietors) of the other part,
WHEREAS the Proprietors are the proprietors of a work by
(hereinafter termed the Author) entitled:
(name of author)
(title of book)
(number) Edition
(hereinafter termed the Work),
NOW IT IS HEREBY MUTUALLY AGREED AS FOLLOWS: 1. Subject to the terms detailed in this Agreement, the Proprietors hereby grant to the
Publishers the exclusive licence to translate, produce and publish a printing of
(number)
copies only of the Work in hardback/paperback volume form in the
language under the Publisher's imprint (hereinafter termed the Translation) for sale in
(country of licensee) only/throughout the world. This Agreement does not grant any
rights with respect to subsequent editions of the Work.
30
2. For the right to produce the aforesaid
x
copies of the Translation,
the Publishers shall pay to the Proprietors in accordance with the provisions of Clause
18 hereof a lump sum equivalent to a royalty of
x
per cent
calculated on the retail/wholesale price per copy received by the Publishers, which
sum shall be paid in the following manner, namely:
(a) The sum of
x
pounds sterling/USD shall be paid to the Proprietors on
signature of this Agreement.
(b) The sum of
x
pounds sterling/USD shall be paid to the Proprietors on
publication of the Translation or by
(date)
whichever is earlier.
The said payments are not recoverable in the event of any default by the Publishers in
carrying out the terms of this Agreement.
Should the Translation be issued at a price higher than the estimated
publication/wholesale price of
x
(currency of licensee) the payment due
under Clause 2 (b) hereof shall be increased on publication by a percentage equivalent
to the increase in the publication/distribution price of the Translation.
3. This Agreement shall not come into effect until the Proprietors have received the
payment detailed in Clause 2 (a) hereof.
4. The Publishers shall arrange for the translation of the Work to be made faithfully
and accurately by a qualified and competent translator, whose name and qualifications
shall be sent to the Proprietors. Abbreviations, alterations and/or additions shall only
be made with the prior written consent of the Proprietors. The Proprietors reserve the
right to request the Publishers to submit the manuscript of the Translation to the
Proprietors for their approval before commencing the production of the Translation.
5. The Publishers shall be responsible for obtaining, wherever necessary, permission
for the use in the Translation of copyright material from the Work controlled by third
parties. The Publishers shall also be responsible for paying any fees required for such
permissions and for ensuring that appropriate acknowledgement is made in the
Translation. The Proprietors reserve the right not to supply the Publishers with
duplicate production material for any illustrations contained in the Work until the
31
Proprietors have received written confirmation from the Publishers that such
permission has been obtained.
6. The Publishers undertake to ensure that, wherever possible, the printing, paper and
binding of the Translation shall be of the highest quality.
7. The name of the Author shall appear with due prominence on the cover, jacket (if
any) and title page of every copy of the Translation issued and on the reverse of the
title page shall appear the following copyright notice: "© (copyright details from
original edition)" together with the following acknowledgement: "This translation of
(title)
is published by arrangement with
(name of foreign publisher)."
8.
x
free copies of the Translation shall be sent to the Proprietors on
publication together with a note of the actual date of publication and the wholesale
price of the Translation.
9. In the event of the Publishers failing to issue the Translation within
x
months from the date of this Agreement all rights granted under this Agreement shall
revert to the Proprietors without prejudice to any monies paid or due to the
Proprietors.
10. The Publishers shall not dispose of any subsidiary rights in the Translation
without first obtaining the written consent of the Proprietors.
11. Should any of the payments detailed in this Agreement be three months overdue
the licence herein granted shall forthwith lapse and all rights conveyed by it shall,
without further notice, revert to the Proprietors.
12. The Proprietors hereby warrant to the Publishers that they have the right and
power to make this Agreement and that according to English law the Work will in no
way whatever give rise to a violation of any existing copyright, or a breach of any
existing agreement and that nothing in the Work is likely to give rise to a criminal
prosecution or to a civil action for damages or any other remedy and the Proprietors
will indemnify the Publishers against any loss, injury or expense arising out of any
breach or alleged breach of this warranty.
32
13. The Licence hereby granted to the Publishers shall not be transferred to or
extended to include any other party, nor shall the Translation appear under any
imprint other than that of the Publishers, except with the prior written consent of the
Proprietors.
14. All rights in the Work other than those specifically granted to the Publishers under
this Agreement are reserved by the Proprietors.
15. The Publishers shall inform the Proprietors when the Translation goes out of print
and off the market, whereupon all rights shall revert to the Proprietors, but the
Publishers shall have the first option of producing and publishing a further printing of
the Translation on terms to be agreed between the parties hereto and shall not proceed
with the publication of such further printing until written permission has been
obtained from the Proprietors and terms agreed.
16. In the event of the Publishers going bankrupt or should they fail to comply with
any of the provisions of this Agreement and not rectify such failure within one month
of having received notice from the Proprietors to do so by a registered letter sent to
the Publishers at their address given at the commencement of this Agreement, then in
either event this Agreement automatically becomes null and void and the licence
granted to the Publishers herein shall revert to the Proprietors without prejudice to any
monies paid or due to the Proprietors.
17. If any difference shall arise between the Publishers and the Proprietors touching
the meaning of this Agreement or the rights and liabilities of the parties hereto, the
same shall be referred to the arbitration of two persons (one to be named by each
party) or their umpire, in accordance with the provisions of the Arbitration Act, 1979
or any subsisting statutory modification or re-enactment thereof, provided that any
dispute between the parties hereto no resolved by arbitration or agreement shall be
submitted to the jurisdiction of the English courts.
18. All sums which may become due to the Proprietors under this Agreement shall be
paid by the Publishers in sterling/US dollars at the official exchange rate in force on
the day of transfer without any deduction in respect of exchange or commission.
Should the Publishers be required by law to deduct tax they shall send a declaration to
this effect with the relevant statement of account showing the amount deducted.
33
19. This Agreement shall be governed by and interpreted and construed in accordance
with the laws of England.
20. The Publishers agree to take any necessary steps to register the title of the Work in
the Author's/Proprietors' name under local copyright laws at the sole expense of the
Publishers. The Publishers also agree to protect such copyright and to prosecute at
their own expense any person who infringes such copyright.
Signed .................................................
For and on behalf of the Publishers
Signed ..................................................
For and on behalf of the Proprietors
Notes to contract
Preamble
This gives the names and addresses of the parties to the contract and details of the
work which is to be translated. For a non-fiction work which may subsequently be
revised, it is common for western publishers to restrict the licence contract to the
current edition only.
Clause 1
This outlines the exclusive rights which are being granted in terms of language,
geographical territory and an agreed print run; volume rights cover the right to publish
the work as a whole, and this would technically preclude the foreign publisher from
making any separate arrangements for a book club edition in the country of the
licensee. If rights are restricted to publication either in hardback or paperback volume
form, this could leave the Proprietors free to license rights to another publisher for the
alternative form of binding, although this would mean that the other publisher would
face the problem of the use of the translated text. If the market might warrant
publication of both editions, it would be preferable for the prime licensee to acquire
volume translation rights and require the right to sublicense rights in the alternative
binding to another local publisher via a modification to Clause 10.
Clause 2
34
This covers the financial arrangements; a lump sum to cover an agreed printing,
equivalent to an agreed royalty percentage based either on the retail price (i. e the
average price paid by the end purchaser in the bookshop) or on the price received by
the licensee from distributors. Royalty percentages based on the latter price are likely
to be higher to allow for the 25-40% discount between two prices.
In this example payment is to be made in two instalments, the first on signature of the
agreement and the second on publication or by an agreed "latest date". The date to be
inserted here would normally be the estimated publication date of the translation, with
payment due on that date even if publication has not yet taken place; this is intended
as an incentive to prompt publication.
The timing and proportion of payment is of course negotiable, as is the currency
specified (see also Clause 18). If the licensee will find it easier to remit payment if all
figures are given in US dollars, this must be agreed with the foreign publisher if
dollars are not their native currency.
The payments are forfeited if the licensee fails to comply with the contract. There is
also provision for a pro-rata increase in the lump sum if the final price is higher than
the price estimated at the time terms are negotiated; this is an important factor if
inflation is escalating.
Clause 3
The contract is not legally binding until the initial payment has been made.
Clause 4
This clause is intended to ensure that the translation is made accurately and by a
competent translator. No changes may be made without permission; this is to enable
the foreign publisher to check that the author has no objection to the omission or
addition of material to make to book more suitable for the licensee's market. Changes
of this kind should be raised at the earliest possible stage in licence negotiations.
There is a provision for the foreign publisher to request a copy of the manuscript for
approval.
Clause 5
35
Many western books may contain illustrations or quoted text derived from external
sources. The licensee should check carefully with the foreign publisher whether the
reuse of this material is automatically included under the overall terms of the licence
or whether permission for reuse must be secured and further fees paid. It is important
that this reclearance is undertaken prior to the supply of any duplicate film to comply
with contractual arrangements with external copyright owners such as commercial
picture agencies, museums etc.
As it stands, this clause puts the onus for reclearance and payment of fees on the
licensee, in which case the foreign publisher must supply a clear list of the names and
addresses of the external copyright owners and the material they control; they will not
however be able to provide exact details of the fees for reclearance for the licensed
edition since these will be set by the individual copyright holders. Some foreign
publishers may be prepared to undertake the reclearance work on behalf of licensees,
but may then recharge the cost of any fees incurred together with a handling charge.
In such cases this clause might be reworded to read:
"The Proprietors shall be responsible for obtaining, wherever necessary, permission
for the use in the Translation of copyright material from the Work controlled by their
parties. The cost of any fees required for such permissions will be recharged to the
Publishers whit an additional administrative charge and details of this arrangement
will be agreed separately between the parties. The Proprietors reserve the right not to
supply the Publishers with duplicate production material for the illustrations
contained in the Work until such permission has been obtained."
Clause 6
This requires that the production quality of the Translation will be to the highest
standard possible allowing for local circumstances.
Clause 7
The name of the original author must be properly credited; copyright details of the
original edition must be printed on the title verso together with an acknowledgement
to the original publisher. This is necessary since the copyright line may be in the name
of the author. Because of the current requirement under UK law for the author to
assert his or her moral rights, some UK publishers may require their licensees to
include a statement to this effect which will probably read: "
x
(the
author) hereby asserts his/her moral rights in accordance with the Copyright, Designs
36
and Patents Act 1988." The licensee will also need to include a copyright notice
relating to ownership of the translated text.
Clause 8
This specifies the number of free copies which must be supplied on publication
together with details of the publication date and final publication or distribution price;
this is necessary in case a rise in price necessitates a supplementary royalty payment
(see Clause 2)
Clause 9
A realistic publication time limit should be inserted here. In practice, if there are
genuine reasons for a delay, most publishers will consider an extension if they are
given due warning.
Clause 10
Clause 1 has limited the rights granted to publication in volume form; sublicensing of
the translated edition is not automatically included. If additional rights such as
paperback rights or bookclub rights are to be granted here, they must be discussed at
the earliest stage of the negotiations and the percentages of any rights revenue to be
passed on to the foreign publisher must be agreed.
Clause 11
The contract can be cancelled in the event of overdue payments. Some western
publishers and literary agents may seek to impose penalties for late payment in the
form of interest on the overdue sums.
Clause 12
This clause provides a warranty and indemnity to the licensee. The warranty is
provided in this example under English law since a British publisher could not be
expected to know the details of legislation in the country of the licensee. The wording
on legislation would have to adjusted for a licence acquired from another country
such as the United States, Germany etc.
Clause 13
The licence cannot be transferred without prior permission from the foreign publisher.
Clause 14
37
The licence is restricted to the rights outlined in Clause 1 .
Clause 15
Because the licence is restricted to a specific number of copies, provision is made
here for a renewal of the licence on terms to be agreed.
Clause 16
This covers cancellation of the contract in the case of bankruptcy or breach of contract
by the licensee. Few western publisher automatically offer a reciprocal clause
covering cancellation in case of bankruptcy or breach of contract by themselves, but
this can be requested.
Clause 17
This clause provides for arbitration in the vase of a dispute between the parties. The
wording refers to British arbitration regulations and would have to be adjusted if the
licence is acquired from another country. A compromise may be to specify that
arbitration is in a neutral territory such as Stockholm.
Clause 18
This clause covers the practical arrangements for remitting payments; the currency
should be agreed with the foreign publisher. Some publishers may wish to insert here
the exact department to which payment should be remitted; large publishing houses
have specialist royalty departments which may be located at a different address from
that of the main office. If rights are being acquired and payment made via a literary
agent, it will be necessary to insert here details with the name and address of the agent
and the fact that agency commission is being deducted. Bank documents detailing any
tax deductions are required as the foreign publisher may be able to reclaim the
deduction in their own country against corporation tax. The question of whether any
tax should be deducted on royalty remittances will depend on what taxation treaties
are in place (if any) between the countries of the licensor and the licensee. The UK
Inland Revenue office has stated that it considers that the 1986 double taxation treaty
between the United Kingdom and the Soviet Union still applies to the former
Republics of the Soviet Union until such time as new treaties are signed; this would
mean that no tax should be deducted from remittances to the United Kingdom.
Clause 19
38
In this sample, this clause specifies that the contract is operable under English law; it
is customary that the law of the country of the seller prevails. The wording would
have to be adjusted for a licence acquired form another country; e.g. an American
publisher might specify that the contract was operable under the law of the state of
New York. A compromise would be to specify that the contract is operable under the
law of the country of the summoned party.
Clause 20
This clause requires the licensee to comply with any local procedures necessary to
protect copyright in the title and to take action against any infringement.
ii) Same-language reprint licence: lump sum payment
If the licensee is seeking to acquire rights to reprint a book as it stands in the original
language (e.g. an English language dictionary) the contract will be very similar to the
translation contract given above. Some modifications will be required as follows:
a) the term "the Translation" should be altered throughout to read "the Licensed
Edition".
b) Clause 1 should be amended to read:
"Subject to the terms detailed in this Agreement, the Proprietors hereby grant to the
Publishers the exclusive licence to produce and publish a printing of
(number)
copies only of the Work in hardback/paperback volume form in the
(language,
e.g. English) under the Publishers' imprint/under the joint imprint of the Proprietors
and the Publishers, for sale in (country of licensee) only and this restricted
circulation is to be clearly indicated on the outside of the cover and on the reverse of
the title page of the Licensed Edition by the following words: ‘Licensed for sale in
(country of licensee) only; not for export’. This Agreement does not grant any
rights with respect to subsequent editions of the Work."
The question of publication under a joint imprint must be agreed in advance with the
foreign publisher and some publishers have been known to charge a fee for the use of
their name. The market restriction notice is vital in the case of a local reprint to deter
leakage into other markets.
c) Clause 4 should be amended to read:
39
"The Publishers shall not abridge, expand or otherwise alter the Work without the
prior written consent of the Proprietors."
d). It may be that some publishers may wish to limit a contract of this kind by time as
well as by limitation of the print run. This is perhaps understandable in markets where
circumstances can change quite rapidly and foreign publishers may wish to review
their policy on licensing periodically. In such cases, a clause might be added along the
following lines:
"Subject to Clauses 9, 11, and 16 hereof, the licence herein granted shall continue for
a period
x
years from the date of this Agreement and may thereafter be
subject to renewal by mutual agreement between the parties hereto. Should the
Proprietors give notice of termination under this Clause, then the Publishers shall be
entitled for twelve months from the date of receipt of such notice of termination to
dispose of their remaining stock through the normal trade channels."
iii) Translation contract: advance and royalties
This contract covers the purchase of translation rights from a foreign publisher, with
payment based on the western model: an advance payment on signature of the
contract, followed by regular royalty accounting based on accurate sales figures.
There is no limitation on the print run.
MEMORANDUM OF AGREEMENT made this
Between:
day of
19
(name and address of licensee)
(hereinafter termed the Publishers) of the one part, and
(name and
address of foreign publisher)
(hereinafter termed the Proprietors) of the
other part,
WHEREAS the Proprietors are the proprietors of a work by
(hereinafter termed the Author), entitled:
(title of book)
(name of author)
40
(number of) Edition
(hereinafter termed the Work),
NOW IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:1. Subject to the terms detailed in this Agreement, the Proprietors hereby grant to the
Publishers the exclusive licence to translate, produce and publish the Work in
hardback/paperback volume form in the
language under the
Publishers' imprint (hereinafter termed the Translation) for sale in (country of
licensee/throughout the world. This Agreement does not grant any rights with respect
to subsequent editions of the Work.
2. The Publishers shall make the following payments to the Proprietors, in accordance
with the provisions of Clause 18 hereof, namely: (a) The sum of
x
pounds sterling/USD payable on signature of this
Agreement in advance and on account of any sums which may become due to the
Proprietors under this Agreement.
The said payment in advance is not recoverable in the event of any default by the
Publishers in carrying out the terms of this Agreement.
(b) On the
(language)
Publishers, wherever sold:
(i) A Royalty of
x
retail/wholesale price of all copies sold by the
per cent on the first
(ii) A Royalty of
x
x
thousand and
(iii) A Royalty of
thousand.
x
x
thousand copies sold.
per cent on all copies sold between
x
thousand.
per cent on all copies sold beyond the first
x
(c) On remainder copies of the Translation sold be the Publishers at or below cost
no royalty shall be payable to the Proprietors but no such remainder copies shall
41
be sold within a period of two years from the date of first publication of the
Translation.
3. This Agreement shall not come into effect until the Proprietors have received the
advance payment detailed in Clause 2 (a) hereof.
4. The Publishers shall arrange for the translation of the Work to be made faithfully
and accurately by a qualified and competent translator, whose name and qualifications
shall be sent to the Proprietors. Abbreviations, alterations and/or additions shall only
be made with the prior written consent of the Proprietors. The Proprietors reserve the
right to request the Publishers to submit the manuscript of the Translation to the
Proprietors for their approval before commencing the production of the Translation.
5. The Publishers shall be responsible for obtaining, wherever necessary, permission
for the use in the Translation of copyright material from the Work controlled by third
parties. The Publishers shall also be responsible for paying any fees required for such
permissions and for ensuring that appropriate acknowledgement is made ins the
Translation. The Proprietors reserve the right not to supply the Publishers with
duplicate production material for the illustrations contained in the Work until the
Proprietors have received written confirmation from the Publishers that such
permission has been obtained.
6. The Publishers undertake to ensure that, wherever possible, the printing, paper and
binding of the Translation shall be of the highest quality.
7. The name of the Author shall appear with due prominence on the cover, jacket (if
any) and the title page of every copy of the Translation issued and on the reverse of
the title page shall appear the following copyright notice: "© (copyright details from
original edition) " together with the following acknowledgement: "This
translation of (title) is published by arrangement with (name of foreign publisher)
."
8.
x
free copies of the Translation shall be sent to the Proprietors on
publications, together with a note of the actual date of publication and the
publication/wholesale price of the Translation.
42
9. (a) In the event of the Publishers failing to issue the Translation within
x
months from the date of this Agreement all rights granted under this Agreement
shall revert to the Proprietors without prejudice to any monies paid or due to the
Proprietors.
(b) In the event of the Translation going out of print or off the market the
Proprietors shall be at liberty to terminate this Agreement on gibing to the
Publishers six months* notice in writing to reprint the Translation and on the
expiration of such period of six months should such reprint not have been made
all rights granted under this Agreement shall revert to the Proprietors without
prejudice to any monies paid or due to the Proprietors.
10. The Publishers shall not dispose of any subsidiary rights in the Translation
without obtaining the prior written consent of the Proprietors.
11. Accounts for the Translation shall be made up twice annually/annually by the
Publishers to
(date/s)
and the account rendered together with any sums payable
under this Agreement within
x
months of the accounting date/s. Accounts
will show:
(a) The number of copies in stock if any, at the beginning of the accounting
period.
(b) The number of copies if any, printed during the accounting period.
(c) The number of copies sold during the accounting period.
(d) The number of copies presented during the accounting period, and
(e) The number of copies remaining in stock
and accounts and royalties shall be paid in accordance with the provisions of Clause
18 hereof. Should any of the payments detailed in this Agreement be three months
overdue the licence herein granted shall fortwith lapse and all rights conveyed by it
shall, without further notice, revert to the Proprietors.
43
12. The Publishers undertake not to reprint the Translation without first informing the
Proprietors and obtaining their consent in writing.
13. The Proprietors hereby warrant to the Publishers that they have the right and
power to make this Agreement and that according to English law the Work will in no
way whatever give rise to a violation of any existing copyright, or a breach of any
existing agreement and that nothing in the Work is liable to give rise to a criminal
prosecution or to a civil action for damages or any other remedy and the Proprietors
will indemnify the Publishers against any loss, injury or expense arising out of any
breach or alleged breach of this warranty.
14. The Licence hereby granted to the Publishers shall not be transferred to or
extended to include any other party, nor shall the Translation appear under any
imprint other than that of the Publishers, except with the prior written consent of the
Proprietors.
15. All rights in the Work, other than those specifically granted to the Publishers
under this Agreement, are reserved by the Proprietors.
16. In the event of the Publishers being declared bankrupt or should they fail to
comply with any of the provisions of this Agreement and not rectify such failure
within one month of having received notice from the Proprietors to do so by a
registered letter sent to the Publishers at their address given at the commencement of
this Agreement, then in either event this Agreement automatically becomes null and
void and the licence granted to the Publishers herein shall revert to the Proprietors
without prejudice to any monies paid or due to the Proprietors.
17. If any difference shall arise between the Publishers and the Proprietors touching
the meaning of this Agreement or the rights and liabilities of the parties hereto, the
same shall be referred to the arbitration of two persons (one to be named by each
party) or their umpire, in accordance with the provisions of the Arbitration Act, 1979
or any subsisting statutory modification or re-enactment thereof, provided that any
dispute between the parties hereto not resolved by arbitration or agreement shall be
submitted to the jurisdiction of the English courts.
18. All sums which may become due to the Proprietors under this Agreement shall be
paid by the Publishers in (currency to be agreed) at the official exchange rate in force
44
on the day of transfer without any deduction in respect of exchange or commission to
(name and address of foreign publisher)
. Should the Publishers be required by
law to deduct tax they shall send a declaration to this effect with the relevant
statement of account showing the amount deducted.
19. This Agreement shall be governed by and interpreted and construed in accordance
with the laws of England.
20. The Publishers agree to take any necessary steps to register the title of the Work in
the name of the Author/Proprietors under local copyright laws at the sole expense of
the Publishers. The Publishers also agree to protect such copyright and to prosecute at
their own expense any person who infringes such copyright.
Signed .......................................
For and on behalf of the Publishers
Signed .......................................
For and on behalf of the Proprietors
Notes to contract
NB Notes are provided only for those clauses which differ from clauses in model
contract (i) - translation licence (lump sum agreement).
Clause 1
This outlines the exclusive rights which are being granted in terms of language and
geographical territory. There is no limitation on the print run since the licensee will be
paying royalties on actual sales; Clause 9 (b) provides for cancellation of the contract
if the translation is allowed to go out of print. The model contract shown here is
restricted in duration to the current edition of the original work and Clause 1 states
clearly that the contract does not apply to any revision of that work. This type of
limitation is appropriate for non-fiction titles, but for a fiction title it would be more
appropriate to omit the number of the edition after the title of the work (a novel is
hardly likely to be revised!) and to add a time period in Clause 1. This can be done by
replacing the words "This Agreement does not grant any rights with respect to
subsequent editions of the Work" by the words "This licence shall run for a period of
45
x
years from the date of this Agreement and any extensions to the licence period
shall be the subject of a separate agreement between the parties."
Volume rights cover the right to publish the work as a whole, and this would
technically preclude the foreign publisher from making any separate arrangements for
book club rights in the country of the licensee. If rights are restricted to publication
either in hardback or paperback volume form, this could leave the Proprietors free to
license rights to another publisher for the alternative form of binding, although this
would mean that the other publisher would face the problem of the use of the
translated text. If the market might warrant publication of both editions, it would be
preferable for the prime licensee to acquire volume rights and require the right to
sublicense rights in the alternative binding to another local publisher via a
modification to Clause 10.
Clause 2
This covers the financial arrangements; an advance payment on signature of the
contract against royalties calculated either on the retail price (i.e. the average price
paid by the en purchaser in the bookshop) or on the price received by the licensee
from distributors. Royalty percentages based on the latter price are likely to be higher
to allow for the 25-40% discount between the two prices.
The timing and proportion of the advance payment is negotiable; much may depend
on the type of book and the status of the author. For an academic title, it is common
for the advance to represent between one-third and one-half of the expected total
royalties on the licensee's anticipated initial print run. Advances for well-established
international authors may bear less relation to expected sales; for a large advance, it
may be possible to negotiate payment in instalments, e.g. half when the contract is
signed and half on publication of the translation or by an agreed "latest date". Most
western publishers will specify that the advance payable on signature of the contract is
forfeit if the licensee fails to publish; some contracts will specify that instalments of
advances due by an agreed date will be payable even if publication fails to take place.
It is normal western practice for the royalty percentage to escalate after an agreed
number of copies have been sold, on the grounds that continuing sales indicate a
successful title. The point at which the royalty rate escalates and the umber of
escalation points are negotiable; for a book with a long life expectancy in translation
(e.g. a new novel by a foreign author already well-know in the country of the licensee)
46
royalties may escalate several times; for an academic title, the number of escalation
points may be lower on the grounds that the book will probably be revised in the
original language and a new translation licence contract would then be needed to
cover the new edition.
The currency in which the advance and royalties will be paid should be agreed (see
also Clause 18). If the licensee will find it easier to remit payment if all figures are
given in US dollars, this must be agreed with the foreign publisher if dollars are not
their native currency.
Clause 8
This specifies the number of free copies which must be supplied on publication
together with details of the publication date and final publication or distribution price.
Clause 9 (b)
Because this contract is not restricted to a specific print run, this sub-clause provides
for cancellation of the contract if the licenseeallows the translation to go out of print
and fails to put it back into print following notice to do so from the foreign publisher.
Clause 11
Because this is a royalty-based contract, the foreign publisher will require regular
accounting for actual sales of the translation together with detailed information to
enable them to assess the licensee's performance with the book, e.g. rising or falling
sales, reprints undertaken during the accounting period etc.
The frequency and timing of royalty payments is a matter for negotiation between the
parties; for titles with relatively modest sales (e.g. an academic title) annual
accounting may be acceptable, whereas accounting for a book by a bestselling western
author may be required twice yearly. For annual accounting, the foreign publisher may
specify that sales are calculated up to a date corresponding with the end of their own
financial year, e.g. December 31st; if the annual accounting date of the licensee
differs from this, it may be necessary to try and negotiate an alternative date. For
twice yearly accounting the dates could be June 30th and December 31st. Payment of
royalties would then be made an agreed number of months following each accounting
date; few western publishers are likely to accept a time lag of more than three months.
47
The contract can be cancelled in the even of overdue payments. Some western
publishers and literary agents may seek to impose penalties for late payment in the
form of interest on overdue sums.
Clause 12
Although the licence is not limited by print run, some western publishers do require
that their licensees alert them in advance to any proposed reprints; authorisation can
then be provided swiftly by fax. This is intended as a safeguard in case an earlier
printing of the translation has proved unsatisfactory in terms of translation or
production quality.
Clause 13
See notes to Clause 12 for lump sum translation contract.
Clause 14
See notes to Clause 13 for lump sum translation contract.
Clause 15
See notes to Clause 14 for lump sum translation contract.
iv) Same-language reprint licence: advance and royalties
If the licensee is seeking to acquire rights to reprint a book as it stands in the original
language (e.g. an English language dictionary) a royalty-based reprint contract can be
closely modelled on the royalty-based translation contract (iii) provided above. As for
the lump sum reprint contract, some modifications will be required:
a) the term "the Translation" should be altered throughout to read "the Licensed
Edition".
b) Clause 1 should be amended to read:
"Subject to the terms detailed in this Agreement, the Proprietors hereby grant to the
Publishers the exclusive licence to produce and publish the Work in
hardback/paperback volume form in the
(language, e.g. English) under the
Publishers’ imprint/under the joint imprint of the Proprietors and the Publishers, for
sale in K (country of licensee) only and this restricted circulation is to be clearly
indicated on the outside of the cover and on the reverse of the title page of the
48
Licensed Edition by the following words: ‘Licensed for sale in (country of licensee)
only; not for export’. This Agreement does not grant any rights with respect to
subsequent editions of the Work."
The question of publication under a joint imprint must be agreed in advance with the
foreign publisher and some publishers have been known to charge a fee for the use of
their name. The market restriction notice is vital in the case of a local reprint to deter
leakage into other markets.
c) Clause 4 should be amended to read:
"The Publishers shall not abridge, expand or otherwise later the Work without the
prior written consent of the Proprietors."
d) If the licence is not to be restricted by print run, it may be that some publishers may
wish to limit a contract of this kind by time. This is perhaps understandable in
markets where circumstances can change quite rapidly and foreign publishers may
wish to review their policy on licensing periodically. In such cases, a clause might be
added along the following lines:
"Subject to Clauses 9, 11, and 16 hereof, the licence herein granted shall continue for
a period of
x
years from the date of this Agreement and may thereafter be
subject to renewal by mutual agreement between the parties hereto. Should the
Proprietors give notice of termination under this Clause, then the Publishers shall be
entitled for twelve months from the date of receipt of such notice of termination to
dispose of their remaining stock through the normal trade channels."
NB None of the four types of contracts given above specially covers details of the
supply of duplicate film to the licensee. This is because specific details of the type and
price of film may not have been finalised at the point the licence contract is signed. It
is however strongly recommended that would-be licensees raise the question of any
external permissions fees and the cost approximate cost of film at the earliest stages
of the negotiations is case the cost of either affects the final decision on whether the
licence will go ahead.
v) Coedition licence
49
This contract covers the sale of translation rights with manufacture undertaken by the
original foreign publisher on behalf of the licensee.
MEMORANDUM OF AGREEMENT made this
BETWEEN
(name and address of licensee)
day of
19
(hereinafter termed the Publishers) of
the
one part and
(name and address of foreign publisher)
hereinafter termed the Proprietors) of the other part,
WHEREAS the Proprietors are the Proprietors of a work by
(name of author)
(hereinafter termed the Author) entitled:
(title of book)
(number) Edition)
(hereinafter termed the Work),
NOW IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1. Subject to the terms detailed in this Agreement, the Proprietors hereby grant to the
Publishers the exclusive licence to translate and publish the Work in
hardback/paperback volume form in the language under the Publishers* imprint
(hereinafter termed the Translation) for sale throughout (country of licensee) only/the
world. This Agreement does no grant any rights with respect to subsequent editions of
the Work
2. The Publishers shall supply the Proprietors with a set of (specification - e.g.
positive, right reading, emulsion side down) film of the
(language)
text in
page film form, imposed to the layout of the Work together with (specification) film
for the cover/jacket of the Translation.
3. The Proprietors undertake to supply to the Publishers
(quantity) jacketed
hardbound/paperbound copies of the Translation with the Publishers* imprint at a
price of
(price)
per copy (terms of supply - e.g. CIF (destination),
50
inclusive of royalty and export packing). The Proprietors also undertake to supply the
Publishers with (quantity) additional copies of the Translation free of charge. The
production specifications for the Translation shall be as specified on the attached
Schedule.
4. The Proprietors undertake to deliver the said copies of the Translation to their
chosen shipper on or around
(date)
provided that the Publishers supply
imposed film of the text and cover/jacket of the Translation together with full
instructions for packing and shipping no later than
(date).
5. Payment for the said copies amounting to
x
is payable by the Publishers
(example) in two equal parts: the first half on signature of this Agreement and the
second half sixty days from the date of the Proprietors* shipment invoice for the
aforesaid copies.
6. Should the Publishers have any complaints regarding the quality of the said copies
of the Translation, such complaints must be made in writing within one month of
receipt of the said shipment. In the absence of any notification within this period the
Proprietors have the right to assume that the Publishers have accepted full delivery of
the shipment to their satisfaction.
7. Should the Publishers require further copies of the Translation the Proprietors agree
to supply such copies at a price to be mutually agreed between the parties. Such
re-orders shall be for not less than
(minimum viable quantity)
copies. If the parties hereto are unable to agree on the said price or delivery date for
printed copies of the Translation, the Proprietors may agree to supply the Publishers
with a quotation for a set of duplicate film of the Work.
8. This Agreement shall not come into effect until the Proprietors have received the
first payment detailed in Clause 5 hereof.
9. The Publishers shall arrange for the translation of the Work to be made faitfully
and accurately by a qualified and competent translator, whose name and qualifications
shall be sent to the Proprietors.
Abbreviations, alterations and/or additions shall only be made with the prior written
consent of the Proprietors.
51
10. The Publishers shall be responsible for obtaining, wherever necessary, permission
for the use in the Translation of copyright material from the Work controlled by third
parties. The Publishers shall also be responsible for paying any fees required for such
permissions and for ensuring that appropriate acknowledgement is made in the
Translation.
11. The name of the Author shall appear with due prominence on the cover, jacket (if
any) and title page of every copy of the Translation issued and on the reverse of the
title page shall appear the following copyright notice: "© (copyright notice in original
edition) "
together with the following acknowledgement: "This translation of (title
and number of edition) is published by arrangement with
(name of
Proprietors)
."
12. The Publishers shall inform the Proprietors of the actual date of publication and
the publication/distribution price of the Translation.
13. (a) In the event of the Publishers failing to issue the Translation within
(number)
months from the date of this Agreement all rights granted under this
Agreement shall revert to the Proprietors without prejudice to any monies paid or
due to the Proprietors.
(b) In the event of the Translation going out of print or off the market at any time
during the period of this licence the Proprietors shall be at liberty to terminate this
Agreement on giving to the Publishers six months' notice in writing to reorder
copies of the Translation or purchase a set of duplicate film of the Work as
provided for in Clause 7 hereof. If on the expiration of such period of six months
no such arrangements have been made all rights granted under this Agreement
shall revert to the Proprietors without prejudice to any monies paid or due to the
Proprietors.
14. The Publishers shall not dispose of any subsidiary rights in the Translation
without obtaining the prior written consent of the Proprietors.
15. A sales statement for the Translation shall be made up annually by the Publishers
to
(date)
and will show:
52
(a) The number of copies in stock if any at the beginning of the accounting period
(b) The number of copies sold during the sales period
(c) The number of copies presented free of charge during the accounting period
(d) The number of copies remaining in stock at the end of the sales period
Should any of the payments detailed in this Agreement be three months overdue the
licence herein granted shall forthwith lapse and all rights conveyed by it shall, without
further notice, revert to the Proprietors.
16. The Proprietors hereby warrant to the Publishers that they have the right and
power to make this Agreement and that according to English law the Work will in no
way whatever give rise to a violation of any existing copyright, or a breach of any
existing agreement and that nothing in the Work is liable to give rise to a criminal
prosecution or to a civil action for damages or any other remedy and the Proprietors
will indemnify the Publishers against any loss, injury or expense arising out of any
breach or alleged breach of this warranty.
17. All rights in the Work other than those specifically granted to the Publishers under
this Agreement are reserved by the Proprietors.
18. In the event of the Publishers being declared bankrupt or should they fail to
comply with any of the provisions of this Agreement and not rectify such failure
within one month of having received notice from the Proprietors to do so by a
registered letter sent to the Publishers at their address given at the commencement of
this Agreement, then in either event this Agreement automatically becomes null and
void and the licence granted to the Publishers herein shall revert to the Proprietors
without prejudice to any monies paid or due to the Proprietors.
19. If any difference shall arise between the Publishers and the Proprietors touching
the meaning of this Agreement or the rights and liabilities of the parties hereto, the
same shall be referred to the arbitration of two persons (one to be named by each
party) or their umpire, in accordance with the provisions of the Arbitration Act, 1979
53
or any subsisting statutory modification or re-enactment thereof, provided that any
dispute between the parties hereto not resolved by arbitration or agreement shall be
submitted to the jurisdiction of the English courts.
20. All sums which may become due to the Proprietors under this Agreement shall be
paid by the Publishers in
(currency to be agreed) at the official exchange rate in
force on the day transfer without any deduction in respect of tax, exchange or
commission.
21. This Agreement shall be governed by and interpreted and construed in accordance
with the laws of England.
22. The Publishers agree to take any necessary steps to register the title of the Work in
the Author's/Proprietors' name under local copyright laws at the sole expense of the
Publishers. The Publishers also agree to protect such copyright and to prosecute at
their own expense any person who infringes such copyright.
Signed ......................................
For and on behalf of the Publishers
Signed ......................................
For and on behalf of the Propriators
SCHEDULE (sample)
Name of author/title of book Peter Johnson/Growing your own vegetables (First
edition)
Quantity to be supplied: 3000 copies plus 50 free overs
Number of pages: 332 plus xii pages of prelims
Format: 234 x 156 mm
Paper: 80gsm wood-free machine finished (sample attached)
54
Binding: Section sewn, cased, artificial cloth, blocked on spine with loose jacket
Packing specifications: Binder's parcels with 10 copies per parcel, stacked on pallets
and crated
Notes to contract
Many of the clauses in this contract are identical to clauses in model contract (i)
covering a standard translation arrangement. The following notes therefore refer only
to clauses specific to the coedition deal.
Clause 2
This clause specifies that the licensee will supply the foreign publisher with imposed
film of the translated text to required specifications.
Clause 3
This clause outlines the coedition deal; the number of copies to be printed for the
licensee, the price per copy and what that price includes in terms of royalty, packing
and transport. The method of transport and the end destination to which the foreign
publisher is prepared to deliver should be carefully discussed and agreed in advance,
especially if the country of the licensee is landlocked.
Some publishers are prepared to supply a small number of extra copies free of charge
for promotional purposes. Detailed production specifications are contained on a
schedule attached to the contract.
Clause 4
This provides a schedule for shipment which is dependent on the licenseemeeting
required deadlines for the supply of film and shipping instructions. Some western
publishers may impost penalties for the late delivery of film, e. g. a higher unit price
or exclusion from the current printing and payment of any additional costs incurred as
a result by the other coedition partners.
Clause 5
This clause specifies when the licensee will make payment for the coedition copies.
Some western publishers may impose interest on late payments.
55
Clause 6
The foreign publisher will need to know very promptly if there are any problems with
the printed copies; this will enable him to take up the question of problems of
production quality with his printer, or any problems of damage in transit with the
shipper.
Clause 7
This clause covers arrangements for any reorders required by the licensee. The supply
of duplicate film can be discussed if agreement cannot be reached on price or timing;
some foreign publishers may be reluctant to include this provision since it removes
the licenseefrom the coedition partnership. If the licensee does subsequently purchase
film, they must also arrange for the return of the film of the translated text, which
belongs to the licensee.
Clause 10
As for a straightforward translation contract, the licensee should take care to check in
advance who will be responsible for any necessary external permissions clearance and
fees. In this sample the onus is on the licensee, but some foreign publishers may be
prepared to undertake the work and either recharge any fees to the licensee as a
separate item or include them in the unit cost per copy quoted for the coedition.
Clause 13 (a)
Since the licensee will be receiving finished copies from the foreign publisher, the
publication time limit here may be shorter than for a standard translation arrangement.
Clause 13 (b)
This subclause makes provision for continuation of the contract if the licensee places
a reorder for further copies or acquires a set of duplicate film from the foreign
publisher. The foreign publisher should alert all coedition partners each time a further
printing is planned.
Clause 15
Although many coedition prices are quoted royalty inclusive, some foreign publishers
may still require a clause of this kind to assess sales of the licensed edition. Much will
depend on whether the licensee has the facilities to provide this information
accurately.
56
Clause 20
The foreign publisher will expect to receive payment in full for printed copies,
without any deduction of tax.
Schedule
This provides more detailed production specifications for the coedition.
57
CHAPTER 6
ORDERING FILM AND MAKING PAYMENTS
ORDERING DUPLICATE FILM
If duplicate film is required for production of the licensed edition, it is vital that the
technical specifications are vary clear. The licensee should first check with his
intended printer what type of film is required and the details should then be passed to
the foreign publisher so that an accurate price quotation can be obtained.
Specifications should be very clear: positive or negative film, right or wrong reading,
emulsion side up or down. If there is any doubt, a small sample of the required type of
film should be supplied to the foreign publisher.
If the book in question contains different types of illustration (e.g. colour
photographs, black and whit photographs and line drawings) the licensee should
specify clearly whether he requires film of them all. Another point to check if the
book in question includes illustrations which include lettering or labelling in the
original language is whether these appear on a separate black film. Publishers
specialising in colour coeditions usually hold film in this form, but books which were
not specifically designed with foreign editions in mind may have the original text
incorporated on a single black film. The cost of removing the lettering may be higher
if undertaken by the foreign publisher. If the book contains illustrations scattered
throughout the text it is often cheaper for the foreign publisher to supply duplicate
film of the whole book complete with the original text, rather than ask the printer to
single out those pages containing illustrations.
An efficient foreign publisher should be able to check with his printer whether the
type of film specified by the licensee will give adequate results; much may depend on
the type of film held for the original edition. If there is likely to be a significant loss of
production quality, the foreign publisher may recommend an alternative film
specification which will then have to be checked with the licensee's printer.
Once the specification has been agreed, the foreign publisher should be able to supply
an accurate price. It is likely that the figure will include an administrative charge and
in some cases it may also include a mark-up (profit) element which represents the fact
that the licensee is benefitting from the investment in origination made by the foreign
58
publisher. Most western publishers familiar with publishing conditions in Central and
Eastern Europe add only a modest charge to the actual cost of the film.
It is important that when the price is quoted it is clear how long the price will remain
valid, i. e. the deadline by which a firm order must be placed before the cost may rise.
It should also be clear whether any other costs are included such as packing and
transport, whether by post, courier or air freight. Most western publishers charge extra
for these costs, especially if the film is bulky and heavy; also, the method of transport
may not have been decided at the point when the film quotation is first requested.
Unreliable postal services in the region often make courier or air freight a better
method of transport.
The question of the currency in which film charges should be quoted requires some
thought. Americal publishers will almost certainly quote and bill in dollars; British
publishers will probably be inclined to quote and bill in sterling even if the film is
actually duplicated elsewhere (e.g. in Hong Kong). If sterling invoices are likely to
pose a problem for the licensee, they should alert the British publisher to this so that
the film quotation and invoices can be concerted into dollars.
All these questions should be clarified before the final order for film is placed, as well
as how long production of the film will take and also when and how payment is to be
made. A number of publishers who are either unfamiliar with the region (or who have
had bad experiences there) may require full or partial prepayment is made before they
place an order with their printer; if the film is expensive, some may require payment
to be made against an irrevocable letter of credit drawn on a major bank in their own
country. As film for some books heavily illustrated in colour can cost several
thousand pounds sterling, this is perhaps understandable. Other publishers may
require that payment is remitted in full immediately on receipt of their invoice for the
material.
In addition to clear technical specifications for the film itself, it is vital that the
licensee provides the foreign publisher with very clear instructions on how the film is
to be invoiced, declared for customs purposes and despatched. If, for example, there is
likely to be a customs problem if the film is declared as such and at its true value, the
foreign publisher may be prepared to declare it is "book material" or "illustration
material" and to declare it at a nominal value on a dummy invoice; if this s done,
however, it will not be possible to insure the film for its true value. If the film is then
59
lost, damaged or impounded in transit, the foreign publisher cannot then be expected
to supply a set of replacement film free of charge.
MAKING PAYMENTS
i) Payment of licence royalties
These may be formulated as a lump sum to cover an agreed number of copies of the
licensed edition; that payment may be remitted entirely on signature of the licence
contract or perhaps in two or more instalment. If the licensee requires an invoice as
well as the licence contract in order to remit payment, they should inform the foreign
publisher of this at the earliest stage of negotiations together with details of any
required wording for the invoice. A single lump sum payment invoice might read as
follows:
Lump sum royalty payment to cover 3000 copies of (language) edition of (name
of author and title of book)
xxxx
--------xxxx
Alternatively, if payment is to be made in two instalments, the initial invoice might
read as follows:
50% of lump sum royalty payment to cover 3000 copies of (language) edition of
(name of author and title of book)
xxxx
--------xxxx
A similar second invoice would then be needed when the second payment falls due.
60
If the licensee has contracted on the basis of a western-style advance payment against
regular royalty payments calculated on actual sales, he should send details of the
number of copies sold and the royalty payment due to the foreign publisher to enable
an invoice for the appropriate amount to be raised.
The licensee should inform the foreign publisher if local bank regulations require the
invoices to be stamped and signed on behalf of the licensor. The question of whether
or not any tax will be deducted from licence payments remitted abroad will depend on
whether there is a double taxation exemption treaty in place between the countries of
the licensee and the licensor.
ii) Payment for duplicate film
Some foreign publishers may require partial or full prepayment before they will order
duplicate film on behalf of the licensee. The foreign publisher should be instructed on
whether any advance invoice or the invoice accompanying the film itself should give
the full technical specification or whether it is preferable to refer to it as "book
material" or "illustration material". If the former is possible the invoice might read:
One set duplicate positive film, right-reading emulsion side down, for (name of
author and title of book)
xxxx
Packing
xxxx
Courier charges
xxxx
--------xxxx
An alternative might read:
Book illustration material for (name of author and title of book)
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xxxx
Packing
xxxx
Courier charges
xxxx
--------xxxx
If a dummy invoice giving only a nominal value for the film accompanies the film, a
true invoice will have to be sent separately.
There should be no deduction of tax on payment remitted for film.
iii) Payment for coedition copies
Invoicing here will depend on the schedule of payment agreed. If part payment is to
be made in advance of the shipment, perhaps when the order is confirmed, the invoice
might read as follows:
50% of cost of 2000 copies (language) edition of (name of author
and title of book) at (price per copy) royalty inclusive and CIF
(destination)
xxxx
--------xxxx
A similar second invoice would then be issued when the balance of payment falls due.
Most publishers in the region may hold hard currency accounts or use their local
currency accounts to purchase hard currency for remittance abroad. It is important to
62
remember that many foreign publishers will not necessarily be familiar with the exact
procedures required for a licensee to remit hard currency payments abroad,
particularly of those procedures are subject to periodic changes. It is therefore up to
the licensee to establish exactly what documentation is needed and to advise the
foreign publisher accordingly, together with a likely time-scale for remittance of
payment.
Most foreign publishers accept payment by either of two methods - by a bank draft
sent by post, or by a direct bank transfer into their own bank account. If the latter
method is chosen, the foreign publisher should provide details of the name and
address of the bank and the account number. The licensee should provide hi own bank
with clear identification of what the payment is for, quoting any invoice number and
the name of the author and the title of the book in question.
Foreign publishers with substantial licensing business may receive many hundreds of
direct bank payments into their account every year and need to be able to identify
quickly when payment has been received.
Letters of credit
If the foreign publisher requires payment either for film or for coedition copies against
a letter of credit, details will have to be discussed at the earliest stage of the
negotiations. A British publisher might require that payment is made against an
irrevocable letter of credit drawn on a designated major London bank, and the Kazakh
publisher will then have to check whether his own bank can arrange for this. A letter
of credit provides a guarantee of payment to the foreign publisher on an agreed date,
but this type of arrangement involves an additional cost to the licensee.
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CHAPTER 7
SELLING RIGHTS TO FOREIGN PUBLISHERS
Publishers in Central and Eastern Europe and the former Soviet Union will
undoubtedly wish to offer translation rights in some of their own books to foreign
publishers; the following aims to provide a briefs guide to what is involved. It is
however vital that amy publisher planning to offer a book has clear contractual rights
from the author to handle such arrangements on his or her behalf and agreement on
the division of any financial proceeds.
SELECTING TITLES
The first and most vital point to remember is that not every title has translation
potential, and that this fact applies also to many western books. For a book to "travel"
it must have genuine international appeal, either because of its subject matter or
because of the talent and/or fame of its author. It may be difficult to sell rights in the
work of even a talented creative writer - for example, a novelist - if that writer does
no yet have an established reputation outside his or her native country.
The initial task for any publisher wishing to sell rights is therefore to apply an
objective and realistic eye to their existing and future publication programme with the
aim of identifying those titles which may have true international potential. That
potential may vary from market to market, with translation possibilities perhaps more
likely in neighbouring countries in Central and Eastern Europe or the former
Republics of the Soviet Union rather than further west. It is important to recognise
that although there has been a far greater general interest in the region over the last
five years, books on specifically local topics such as tourism and cuisine may have
limited potential. This may seem curious: it might seem that a guidebook on a country
or a city in the region written by a native author would be the most authoritative, but
it is often the case that western tourists (to any country!) prefer to buy guidebooks
written by their own countrymen who have visited the region and view it from a
western perspective. Similarly, although the publishing industries in many western
countries abound with books on foreign cuisine, all too often they are written by
domestic authors rather than by writes from the countries whose cuisine is being
covered.
64
In areas such as fiction and poetry, many authors who are well-known in their own
country may still be little known abroad. Here the task will be to identify those
foreign publishers who specialise in the translation of foreign literature and in
particular those with an interest in writers from the region. It is a sad fact that - with a
few very honourable exceptions, British publishers generally publish very little
translated literature by comparison with publishers in continental Europe and indeed
in the United States.
All this may sound disheartening, particularly to new young publishers who do not
wish to be reliant on buying translation rights in western publications. But it is
important to be realistic and to recognise that it may take time and hard effort to build
up contact and to sell rights.
HOW TO START
Of prime importance is the fact that publishing houses in the capitalist countries have
always been privately owned. Some of the larger publishing groups are quoted on the
stock markets and their shares can be bought. Their main aim is to publish profitably even the university presses are nowadays required to subsidise publication of their
more specialised titles with other more popular books. Each publishing house will
formulate its publishing policy within areas which have been established for a variety
of reasons - the personal taste of the founders when the house was small, areas in
which the publisher has had proven success over the years and so on. There may be
shifts in direction, expansion or reduction from time to time to take account of
changing market trend, but it is rare for a western publishing house to alter its
character radically, for example to change from publishing academic textbooks to
publishing mass market fiction. This contrasts strongly with the diversification which
many state of former state-owned publishing houses in Central and Eastern Europe
have had to undertake in order to survive.
In all western countries there are many different publishers competing to publish in
the same fields - school textbooks, university textbooks, business and computer
handbooks, literary fiction, children's books, popular fiction and non-fiction etc. In the
case of English language books, British and American publishers compete against
each other in some subject areas and in many overseas markets, particularly in the
area of academic books. Their taste in mass market titles tends to differ reflecting
differences in cultural taste, although there may be collaboration across the Atlantic
65
through rights deals. In the area of high level scientific, technical and medical
publishing, German and Dutch publishers compete with British and American houses,
publishing original books in English. Increasingly, many large publishing houses are
part of multinationals with subsidiary companies throughout the world.
All this makes if confusing for publishers entering the rights arena to know where to
start. For example, is it better to try and sell English language rights in a novel
separately to a British and an American publisher, or to choose a publisher on one
side of the Atlantic and grant them world English language rights? Which French or
German publisher might be the most suitable for a novel, a collection of poetry or a
photographic book?
IDENTIFYING SUITABLE PUBLISHERS
The first task is to start getting to know which publishers are strong inparticular
fields. This is a large, daunting and ongoing task not only for publishers from central
an eastern Europe but for any publisher wishing to sell rights.
Information is available form a variety of sources. The two major international
publishing directories are produced by Bowker: Literary Marketplace (the United
States and Canade) and International Literary Marketplace (the rest of the world), and
there are national directories such as the British Cassell's Directory of Publishing. If
these are available in the libraries of the British Council or the Soros Foundation then
initial research can be undertaken. The catalogues of the various major international
bookfairs are also invaluable in providing details of the subject interests of foreign
publishers; the annual Frankfurt catalogue is particularly helpful and can be used
throughout the year as a reference tool. The Frankfurt Book Fair also produces each
year a Who's Who which lists individual staff who have registered to attend the fair,
although this is rather expensive (DM 50 in 1997).
PROMOTION BY MAIL
Whereas publishers wishing to buy rights from a foreign publisher should write to the
Rights Manager, publishers wishing to sell rights to a foreign publisher should write
to the Editorial Director if they are unable to identify a specific contact name from a
directory. Alternatively, if they are offering a specific project, they could target their
letter more precisely to "the Travel Guide Editor" or to "the Children's Book Editor";
66
this can be helpful if the foreign publishing house in question is very large with many
different specialist editorial departments.
The best initial approach is not to try and promote a whole catalogue of titles, but
rather to select on title (two three at most) which seems to have genuine potential
abroad. It is always preferable to send brief, clear information on the book, rather than
an unsolicited copy of the book itself. If the information is clearly presented, this
should be sufficient for the foreign editor to judge whether they are interested in
seeing more material. Many foreign publishers produce (in addition to a catalogue of
new publications produced twice annually or a range of different subject catalogues)
individual advance information sheets. These should include:
The name and address of the publishing house
The title of the book
Details of the author: status, previous publications etc.
Bibliographical details: format, binding, length, type and
Number of any illustrations
Brief description of book
Intended readership
Publication date
All this can usually be covered on one side of a single sheet of paper. If the book is
heavily dependent on illustrations, it may be helpful to attach some photocopies to
show the style of these.
In what language should this information be provided? If the publisher offering the
book has facilities to prepare the same information in English, German, French etc.
and intends to target all those markets, well and good. If this is not possible,
information prepared in English will make it accessible not only to British and
American publishers but also to most continental European, Latin American and
Japanese publishers as well.
A covering letter should accompany any information sheet sent by mail. This might
read as follows:
"I see from the catalogue of the last Frankfurt Book Fair that your publishing house
specialises in contemporary fiction. I wonder if you would be interested in
67
considering for translation the latest novel by (name of author), a writer now well
established in (name of publisher’s own country). I am enclosing brief information
now and would be happy to send you a reading copy if you are interested. A sample
chapter/draft translation of the book can be provided in English if required.
I look forward to hearing from you."
It is always a great advantage if the publisher offering the project can provide a
sample translation in the language of the target publisher - unfortunately, the ability of
overseas publishers to read the languages of the region is somewhat limited! If a full
draft translation can be supplied which can then be copy-edited by the purchaser, this
would normally be the subject of a financial arrangement in addition to any licence
contract itself.
If the book in question has already been licensed for translation other languages, it is
always helpful to mention this in the promotional letter.
PROMOTION AT BOOK FAIRS
Book fairs are enormously important marketplaces for the sale and purchase of rights.
The major fairs attended by western publishers are London (primarily British
publishers), BookExpo America (mainly Americans), Bologna and Frankfurt (both
international). In addition to these, some western publishers attend some book fairs in
Central and Eastern Europe but attendance has probably fallen since the number of
events and the cost of attendance has increased and more publishers from the region
are now able to attend Frankfurt.
Preparing for the fair
Any publisher wishing to sell rights at a book fair needs to make careful preparations
well in advance of the event. Essential tools will be a good supply of business cards,
multiple copies of brief information sheets on titles selected for international potential
(prepared if possible in English and any other suitable languages). It is unlikely that
foreign publishers will be prepared to read through a manuscript (even a draft
prepared in their own language) during a book fair itself. If a book is heavily
illustrated with photographs or drawings, a finished copy or a sample mock-up to
show the style of the book may be helpful. However, do not part with your only copy
68
or mock-up at the fair itself - material can be sent after the fair is a publisher is
genuinely interested.
Book fairs provide an ideal opportunity for meeting existing contacts, looking for new
potential partners and for simply studying what other publishers are doing. Some can
be daunting events on a first visit - Frankfurt can be particularly frightening because
of its sheer size. It is therefore best to try and arrive with some kind of plan and - if
possible - with some appointments already arranged by post with existing contacts or
publishers identified from market research. You will need to establish if the person
you want to see is planning to attend the fair; some foreign publishers tend to send
staff to sell rights in their own books but do not send all their editors. This will almost
certainly be the case of any book fair held in Central and Eastern Europe where the
people manning the stands of western publishing houses will probably be sales or
rights sales staff.
If you are starting out without any previous contacts, the best plan is to write to the
appropriate editor six to eight weeks before the fair; for large fairs, publishers start to
arrange their schedules then.
Enclose some information on the project you would like to discuss and ask if an
appointment will be possible; simply to ask for an appointment without any indication
of your purpose will almost certainly produce a negative response or no response at
all! At this stage it is probably best not to suggest a date or time until you know that
the publisher is interested in meeting you.
If this is the first approach from your publishing house, and if the project you wish to
discuss is not immediately attractive, you may receive no response to your letter. Do
not be disheartened by this as the same thing often happens to western publishers
seeking to marke contact for the first time, particularly if they represent a new or very
small publishing house. Add the name of the publishing house to a list of stands to
visit at the fair. If you receive a negative response to your letter, it is probably
pointless to try and pursue and appointment at the fair. If you receive a positive
response and the foreign publisher does not suggest a suitable date and time for an
appointment, do so yourself. Although it is traditional for rights sellers to hold
appointments at their own stand, for a first contact it is more courteous to offer to visit
the foreign publisher’s stand; it will also give you the opportunity to see the range of
books they publish. Assume that no more than half an hour will be available for each
appointment and suggest an appointment during the early days of the fair - many
69
editors return home before the end, leaving sales and rights staff to man the stand
until the end of the event.
At the fair
Visiting other stands rather than working from your own stand means that you will
spend much of your time walking and carrying everything you need with you. Space
appointments to allow for moving around (Frankfurt is huge); wear sensible shoes and
return periodically to your own stand to rest, collect replacement materials and check
your schedules and any messages.
Approaching a foreign publisher’s stand for the first time at a book fair can seem a
daunting task. The best plan is to ask if the editor for the appropriate area is present at
the fair and if an appointment will be possible. The larger publishing houses have
reception desks which maintain schedules for all staff present, although some
publishers may ask more about the purpose of your visit before committing to an
appointment. If the relevant editor is not present at the fair, try to obtain their name so
that you can contact them by mail after the fair. A word of warning: it is a sad fact
that no every publisher will give you a polite response, particularly at fairs such as
Frankfurt where many of them are working under extreme pressure and have full
schedules!
If an appointment is arranged, the purpose will be ongoing discussion with existing
contacts or to introduce yourself and your publishing programme if contact is being
made for the first time. Always obtain the business card of each person you meet and
attach it to notes of your conservation in preparation for you follow-up work after the
fair. Try not to show too many of your books (overkill is always off putting) but be
prepared to be flexible; for example, if you are talking to a children’s editor and are
told that illustrated books for young children are not of interest, ask if they are
interested in novels for teenagers instead. Even with existing contacts, it is always
wise to ask if they are looking for a particular topic or if they have expanded or
altered their publishing programme in a particular direction. If interest is shown in a
project and the rights are free for that language, confirm what material you will be
sending. For English language publishers, always check what geographical territory
they require; if they request world rights, ask how they market their books on the
other side of the Atlantic. Many multinational companies have good facilities
woldwide; smaller publishers may need to set up sublicensing deals with British or
American partners.
70
If language is likely to be a problem for assessing a project, state if a draft translation
is available in a suitable language. If the book is heavily illustrated, the foreign
publisher may wish to know if duplicate film will be available; it is probably better to
ask what technical specifications would be required, and then obtain accurate prices
after the fair, adding a percentage to cover administrative costs.
If the contact seems promising, ask to be added to their regular mailing list for
catalogues and advance information. This will give you a continuous picture of how
their list is developing.
Do not underestimate just how tiring a book fair can be, particularly huge events such
as Frankfurt. Pace yourself each day and sit and rest periodically. Guard your
notebook with your life as if you lose it you will not be able to reconstruct the detail
of your conversations or a list of publishers whose stands seemed promising.
After the fair
Write to each person you met as soon as possible after the fair. Even if the contact
was not immediately productive, thank them for taking the time to see you. If the
contact was promising, you will need to send advance information, reading copies or
sample material on the projects which were discussed; if material is not yet available
for a forthcoming project, provide a schedule for when it will be ready. It is customary
when sending a reading copy to grant the foreign publisher an exclusive option on the
rights for the language in question, usually for three months (see Chapter 2). If by
some chance you have several publishers keenly interested in the same project for the
same language, you can submit material to each simultaneously instead, but you must
then inform each publisher that you are doing so as each will be expending time,
effort and money to assess the project; they need to know if they are in a competitive
situation. Add each promising contact to a mailing list so that you can send them
regular information of future projects which they might find of interest.
The first visit to any major international book fair is often overwhelming; everyone
else seems to know exactly where they are going and what to do and most of them
seem to have fully booked schedules whereas your own timetable may seem
worryingly blank. Do not be discouraged; view each visit as a learning experience
where you will have an ideal opportunity to undertake market research. It is valuable
not only to add possible contacts to your list, but also to eliminate those publishers
71
whom it will not be worthwhile to pursue. Your will be better prepared for next year's
fair and in the intervening year you should be able to build up further contact by mail.
NEGOTIATING TERMS
What financial terms will you be able to negotiate if a foreign publisher expresses
firm interest in one of your books, either in response to information sent by mail or as
a result of a meeting at a book fair?
The first information you will need from them is their intended first print run and
their estimated local selling price. In many western countries, this will mean the price
at which the book is sold to the end customer in the book shop (less any tax applied to
books), rather than the price which they themselves receive from the bookshop or
distributor.
It is important to remember that in most capitalist countries publishers account for
their books on the basis of an advance payment set against royalties calculated on the
actual number of copies sold during a given period of time, rather than on the number
of copies printed. This stems from the fact that publishing in these markets has always
been a high-risk activity; competition in the market means that print runs have always
been set on the basis of highly-educated guesswork and never on the basis of fixed
print runs supplied to a state distributor as was common in the socialist countries. The
fact that capitalist publishers have always had easy access to paper and printing
facilities means that if they underestimate demand for a book, it can be swiftly
reprinted; a far worse problem is to overestimate the print run and be left with too
many copies. Naturally they do not wish to prepay royalties for copies which may take
several years to sell out, or which may never be sold. Computerised accounting
facilities mean that publishers can track accurately how many copies leave their
warehouse (and also any copies which are returned to them from bookshops unsold!)
Let us consider a theoretical example: a British publisher who estimates that he will
produce an initial print run of 3000 copies of a book to be sold at 10.95 pounds
sterling. For the translation rights, he may be prepared to pay an initial royalty of 7%
on that retail price, which would result in a royalty of 77 pence per copy. The total
royalty for the printing of 3000 copies would thus total 2310 pounds sterling but since
there is no guarantee that the full 3000 copies will be sold, the publisher will offer an
advance payment which represents a proportion of the total, perhaps 750 pounds
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sterling. This could be paid completely on signature of the translation licence
agreement or perhaps half (375 pounds sterling) on signature and half (375 pounds
sterling) on publication of the English edition. The advance payment represents a
token of good faith that the deal will go ahead and whatever is paid on signature of
the contract would normally be forfeited if the publisher failed to fulfil that
obligation.
In countries which do not have a fixed retail price system for books (now including
the United Kingdom since the demise of the UK Net Book Agreement) publishers
may wish the royalties to be calculated on the sum they actually receive after giving
discount to booksellers and wholesalers, rather than on the recommended retail price.
In such cases a higher licence royalty percentage will need to be negotiated to
compensate for the discount given - discount could range from between 25% to 45%
for hardback editions and more than 50% for paperback editions.
After the advance, royalty statements for actual sales will be submitted regularly
(usually twice a year in the case of publishers of books for the general reader, and
once a year in the case of academic publishers). Royalties for the initial sales will be
set against the advance payment until it has been earned off, after which further
payments will be made according to the number of sales made. This is of course a
very different system from that which originally operated in the socialist countries,
but it takes into account the different factory in the market. The countries of Central
and Eastern Europe are of course moving much closer to that model in a variety of
ways: having to deal with competition in the market, estimating realistic print runs,
monitoring cash flow etc. Your may then wonder why many western publishers are
still reluctant to agree to an advance and royalty-based system when licensing their
books to the region, preferring to work on a lump sum basis related to print run (see
Chapter 4). The main reason is that they still perceive the region as being in a state of
flux with unreliable distribution systems in many countries and with licensees unable
to track sales accurately. As the markets stabilise, it is likely that there will be a move
towards the "pay as your earn" western system of accounting.
An important consideration for foreign publishers wishing to buy rights will be the
geographical territory they are granted. This may be comparatively simple for some
languages: for example, granting an Italian publisher work Italian rights will cover the
required territory; the prime market will be in the home country but the publisher will
be able to supply any expatriate orders. However, for other languages which may be
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spoken in several different geographical markets, the licensee should be asked what
territories they regulire and how they intend to service them. For example, should a
publisher in mainland Spain be granted world Spanish rights or should a separate
licence be granted to a publisher in Latin America? Does a French publisher require
the French Canadian market? It is normally viable to split markets in this way only for
books with mass market potential. The question of English language rights is perhaps
the most difficult of all: is it better to license to a British and an American publisher
separately or to a single publisher? Much will depend on the size and resources of the
publisher, and they should be asked about their plans before the market territory is
agreed.
Another important point to discuss when negotiating terms will be the duration of the
licence contract. Academic publishers may require the licence to last for the full term
of copyright, with an option to publish any revised editions of the book. Publishers of
books for the general market may be prepared to accept a shorter licence term, but
few would be prepared to accept less than then years from the date of first publication
of their edition.
Another important question is that of subsidiary rights. Whilst and academic publisher
may be happy to accept simple volume publication rights for an agreed geographical
market, publishers of books for the general reader may well wish to have a range of
other rights included in the translation licence which would enable them to exploit the
book in other ways within the agreed territory. These rights might include the right to
license a paperback publishing house such as Penguin to produce a mass market
edition at an agreed interval after the initial hardback edition has appeared (British
and American publishers inparticular operate this "two-tier" system of publishing).
Other rights might include the right to supply copies of the book to a mail-order book
club, which offers books at reduced prices to its members; the right to sublicense the
book to a publisher on the other side of the Atlantic if the licensee does not have its
own facilities to distribute the book there; the right to allow newspapers and
magazines to print pre- or postpublication extracts from the book (first and second
serial rights) and so on.
Many western publishers will refuse to acquire licences unless rights of this kind are
included in the contract. since they all represent ways of generating additional revenue
from the book, it would make little sense to withhold them, although the foreign
publisher should be asked what plans he has to exploit them. A share of the proceeds
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from any sublicences of this kind should be passed on to the original publisher. The
share of payments may vary according to the category of rights granted and could
range from 50% to as high as 90% for first serial rights (pre-publication extracts to
newspapers and magazines).
These additional rights are not normally included in the grant of rights to publishers in
Central and Eastern Europe and the former Soviet Union since at the moment few of
these methods of exploitation exist; indeed, provisions of local copyright legislation
such as the freedom to quote extensively from copyright works would actually
prevent the exploitation of serial rights. The question of book club rights may
however arise as foreign book club operators (such as the German publishing group
Bertelsmann) start to enter these markets.
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CHAPTER 8
SAMPLE CONTRACT FOR THE SALE OF RIGHTS
This contract covers the sale of translation rights to a foreign publisher with
manufacture to be undertaken by the licensee. It is of course essential that the
publisher offering the rights is contractually entitled to handle such rights on behalf of
the author.
MEMORANDUM OF AGREEMENT made this day of 19
BETWEEN
(name and address of foreign publisher)
(hereinafter termed the Publishers) on behalf of themselves, their successors in
business and assigns, of the one part and
(name and address of original
publisher)
(hereinafter termed the Proprietors) of the other part
WHEREAS the Proprietors are the proprietors of a work by
(name of author) (hereinafter termed the author), entitled:
(title of book)
(number) Edition
(hereinafter termed the Work,
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. Subject to the terms detailed in this Agreement, the Proprietors hereby grant to the
Publishers the exclusive licence to translate, produce and publish the Work in the x
language (hereinafter termed the Translation) for sale in (territory) only/throughout
the world.
2. The Publishers shall make the following payments to the Proprietors in accordance
with the terms of Clause 14 hereof:
a) The sum of x in advance and on account of all sums which may become due
to the Proprietors under this Agreement, which sum shall be payable as follows:
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(i) The sum of x shall be payable to the Proprietors on signature of this
Agreement, and payment of such sum shall be a condition of this agreement
coming into effect.
(ii) The sum of x shall be payable to the Proprietors on publication of the
Translation or by (date) whichever is the earlier.
The said payments are not recoverable in the event of any default by the
Publishers in carrying out the terms of this Agreement.
b) On the x published price of any hardback edition of the Translation issued
by the Publishers:
(i) A Royalty of per cent on the first thousand copies sold
(ii) A Royalty of per cent on all copies sold after the first thousand
c) On the x published price of any paperback edition of the Translation issued
by the Publishers:
(i) A Royalty of per cent on the first thousand copies sold
(ii) A Royalty of per cent on all copies sold after the first thousand
d) Should it be desirable in the opinion of the Publishers to sell copies of the
Translation at a discount of x per cent or more of the x published price, the
current royalties on such sales shall be calculated on the sum received by the
Publishers from such sales, instead of on the
x
published price of the
Translation.
e) Where a separate agreement is made for publication of the Translation overseas
under which copies are to be supplied bound or in sheet form on a royalty
inclusive basis, the current royalties on such sales shall be calculated on the sum
received by the Publishers.
f) No royalties shall be payable on copies presented free of charge for review or
promotion purposes or on any copies sold at or below cost.
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3. The Publishers shall arrange for the Translation of the Work to be made faithfully
and accurately by a qualified and competent translator, whose name and qualifications
shall be sent to the Proprietors. No abbreviations, alterations and/or additions shall be
made without the prior written consent of the Proprietors.
4. The Publishers shall be responsible for obtaining, wherever necessary, permission
for the use is the Translation of copyright material from the Work controlled by third
parties. The Publishers shall also be responsible for paying any fees required for such
permissions and for ensuring that appropriate acknowledgement is made in the
Translation.
5. The Publishers, undertake to ensure that, wherever possible, the printing, paper and
binding of the Translation shall be of the highest quality.
6. The name of the Author shall appear with due prominence on the cover, jacket (if
any) and title page of every copy of the Translation issued and on the reverse of the
title page shall appear the following copyright notice: "© (copyright details from
original edition) 19 "together with the following acknowledgement: "This edition of
(title) is published by arrangement with (name of original publisher)".
7. (Number) free copies of the Translation shall be sent to the Proprietors on
publication, together with a note of the actual date of publication and the
x
published price of the Translation.
8. In the event of the Publishers failing to issue the Translation within (number)
months of the date of this Agreement all rights granted thereunder shall revert to the
Proprietors without prejudice to any monies due to the Proprietors.
9. (a) The licence herein granted shall continue for the full legal term of copyright/for
a period of (number) years from the date of this Agreement/from the date of first
publication of the Translation and thereafter shall be subject to renewal by mutual
agreement between the parties hereto. Should the Proprietors give notice of
termination under this Clause, then the Publishers shall be entitled for twelve
months from the date of receipt of such notice of termination to dispose of their
remaining stock of the Translation, accounting, to the Proprietors for such sales
under the terms of this Agreement.
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b) If any time the Publishers allow the Translation to go out of print or if it is
unavailable in any edition, format or medium, and the Publishers shall fail to put
in hand a reprint within nine months of having received a written request to do so
from the Proprietors, then in such case all rights herein granted shall revert to the
Proprietor forthwith but without prejudice to all rights of the Publishers and third
parties in respect of any agreements or negotiations properly entered into by the
Publishers with any third party prior to the date of such termination and without
prejudice to any monies paid or due to the Proprietors.
10. In consideration of the payment by the Publishers to the Proprietors of the
following percentages of all monies received by them in respect of the under
mentioned x language rights the Proprietors hereby grant the said rights to the
Publishers for the territories specified in Clause 1 hereof:
(a) mass market paperback editions licensed to another publisher: per cent
(b) reprint rights licensed to a third party: per cent
(c) quotation rights: per cent
(d) anthology rights: per cent
(e) digest rights: per cent
(f) digest book condensation rights: per cent
(g) mechanical reproduction rights: per cent
(h) electronic publishing rights: per cent
(i) one-shot periodical rights: per cent
(j) sound broadcasting reading rights: per cent
(k) television regarding rights: per cent
(l) dramatisation and documentary rights: per cent
(m) merchandising rights: per cent
(n) first serial rights: per cent
(o) second and subsequent serial rights: per cent
(p) non-commercial rights for the disabled: per cent
11. The licence hereby granted to the Publishers shall not be transferred or extended
to include any other party other than authorised sublicensees under the terms of
Clause 10 hereof, nor shall the Translation appear under any imprint other than that of
the Publishers except with the prior written consent of the Proprietors.
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12. All rights in the Work other than those specifically granted to the Publishers under
this Agreement are reserved by the Proprietors.
13. Accounts for the sale of the Translation shall be made up annually/twice annually
by the Publishers to (date/s) and the accountrendered together with any sums payable
under this Agreement within three months of the accounting date/s. Accounts will
show:
(a) The number of copies in stock if any at the beginning of the accounting period
(b) The number of copies printed if any during the accounting period
(c) The number of copies sold during the accounting period
(d) The number of copies presented free of charge if any during the accounting
period.
Should any of the payments detailed in this Agreement be tree months overdue the
licence herein granted shall forthwith lapse and all rights conveyed by it shall without
further notice revert to the Proprietors.
14. All sums which may become due to the Proprietors under this Agreement shall be
paid to the Proprietors in (currency to be specified at the official rate of exchange
prevailing on the day of transfer and shall be paid without any deduction in respect of
exchange or commission. Should the Publishers be required by law to deduct tax they
shall send a declaration to this effect with the relevant statement of account showing
the amount deducted.
15. The Proprietors guarantee that they are for the purpose of this Agreement the sole
proprietors of the right to translate the Work into the x language and they have the
right to receive all sums due under this Agreement on behalf of the Author. The
Proprietors hereby warrant that the Work is an original work and that it is in no way a
violation or an infringement of any existing copyright or licence, that it contains
nothing libellous and that all statements contained therein purporting to be facts are
true. The Proprietors undertake to indemnify the Publishers against any loss injury or
damage sustained by the Publishers arising out of any breach of such warranties.
16. The Proprietors hereby agree to grant the Publishers the first option to acquire the
x language rights in any subsequent edition of the Work on terms to be agreed
80
between the parties The Publishers agree to decide whether to exercise such option
within ninety days of receiving suitable material for assessment from the Proprietors.
17. In the event of the Publishers being declared bankrupt or should they fail to
comply with any of the provisions of this Agreement and not rectify such failure
within one month of having received written notice from the Proprietors to do so by a
registered letter sent to the Publishers at their address given at the commencement of
this Agreement, then in either event this Agreement automatically becomes null and
void and the licence herein granted to the Publishers shall revert to the Proprietors
without prejudice to any monies paid or due to the Proprietors.
18. If any difference shall arise between the Publishers and the Proprietors touching
the meaning of this Agreement or the rights and liabilities of the parties hereto, the
same shall be referred to the arbitration of two persons (one to be named by each
party) or their mutually agreed umpire, provided that any dispute between the parties
not resolved by arbitration or agreement shall be subject to the jurisdiction of the x
courts.
19. This Agreement shall be governed by any interpreted and construed in accordance
with the laws of x .
20. The Publishers agree to take any necessary steps to register the title of the Work in
the Author's/Proprietors' name under local copyright laws at the sole expense of the
Publishers. The Publishers also agree to protect such copyright and to prosecute at
their own expense any person who infringes such copyright.
Signed .......................
For and on behalf of the Publishers
Signed ........................
For and on behalf of the Proprietors
Notes to contract
Preamble
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This gives the names and addresses of the parties to the contract and details of the
work which is to be translated. For a non-fiction work which may subsequently be
revised, it is common to restrict the licence to the current edition, but many western
publishers may require at least the first option to publish the next edition (see Clause
16).
Most western publishers now require that the contract is automatically applicable to
their successors and assigns i business since publishing houses are often the subject of
purchase in the west.
Clause 1
This outlines the exclusive rights which are being granted in terms of language and
geographical territory; the latter should be negotiated between the parties. For
languages spoken in more than one geographical region (e.g. English, Spanish or
Portuguese) it will be necessary to decide whether to grant world rights in the
language concerned or a restricted territory. the licence is not restricted to volume
rights, since a range of subsidiaries rights are included in Clause 10.
Clause 2
This covers the financial arrangements; an advance payment against royalties on
actual sales. In this model the advance is divided into two parts, payable on signature
of the contract and on publication of the translation, but the number of instalments is
negotiable. The advance payment is forfeited if the licensee fails to fulfil the contract.
Clause 2 (b) and 2 (c) cover the possibility of the licensee publishing both a hardback
and a lower-cost paperback edition of their own, since many publishers (in particular
in the United Kingdom and the United States) have the facilities to produce and
market both. Clause 10 also provides for the possibility of the licensee sublicensing
paperback rights to a specialist paperback publisher.
In this model the royalty rates for standard sales are calculated on the full published
price of the translation (e.g. "on the British published price); the number of escalation
steps in the royalty percentages are open to negotiation. Some western publishers may
require that all royalties are calculated o the sums they themselves receive from
distributors or retailers, in which case a higher royalty percentage should be
calculated.
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Clause 2 (d) provides for sales made at high discount to be calculated on the sum
received by the licensee rather than on the full published price; this is to make bulk
special sales to distributors or to book clubs viable. Clause 2 (e) also allows for
royalties on the sum received if a coedition sublicence is undertaken within the agreed
geographical territory; an example would be if world English language rights have
been granted in Clause 1 and British licensee then prints coedition copies for an
American sublicensee or vice versa. The royalty percentages in both these clauses
would be the same as those specified in 2 (b) and 2(c). It is traditional for copies
given away free of charge or sold at or below manufacturing cost to be royalty-free
(clause 2 (f)).
Clause 3
This clause is intended to ensure that the translation is made accurately and by a
competent translator. No changes may be made without permission.
Clause 4
This clause puts the onus on the licensee to reclear and pay for permission to reuse
any third party copyright material. If they agree to do this, they will need clear and
accurate information on the relevant copyright holders. However, many western
publishers would expect such clearance to be implicit in the contract. It is important
to discuss this point, particularly as copyright legislation in Central and Eastern
Europe and the former Soviet Union allows for very free use of material from outside
sources without permission or payment. If the Kazakh title contains text or
illustrations drawn from western sources, the licensee must be alerted to this.
Clause 5
This clause requires production quality to be of the highest possible standard.
Clause 6
The name of the original author must be properly credited; the copyright line from the
original edition must be reproduced together with credit to the original publisher.
Clause 7
This clause specifies the number of free copies which must be supplied on publication
together with details of the publication date and published price.
Clause 8
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A realistic publication time limit should be agreed here. If the licensee is planning to
publish a paperback edition as well as a hardback, the paperback edition could appear
up to a year later than the hardback.
Clause 9 (a)
Because this licence is not restricted to a specific number of copies, it is essential to
specify how long the contract will last. Some foreign publishers may request a licence
for the full term of copyright as the contract contains provision for termination earlier
if the translation goes out of print. Some may be prepared to agree to a shorter term;
however, it would be unreasonable to grant a term of less than ten years from first
publication of the translation as this would restrict the possibility of sublicences under
the terms of Clause 10 (a mass market paperback publisher would normally require a
licence of at least eight years). This clause allows for a "period of grace" after
termination to allow the licensee to dispose of stock.
Clause 9 (b)
This provides for reversion of rights if all editions of the translation are out of print,
i.e. if the licensee is no longer involved in active exploitation of the title. However, if
any sublicences granted under the terms of Clause 10 are still running, the licence
would still be valid. An example would be if the licensee's hardback edition of the
translation was out of print but a licensed mass market paperback edition was still
available and hence earning money for the licensee and the original publisher.
Clause 10
This clause contains a list of subsidiary rights relating to the language and territory
covered in Clause 1. If the title in question is a specialisted academic work, it may be
that not all these rights would be required; they should be discussed and negotiated.
Any western publisher acquiring rights in a popular fiction or non-fiction title will
certainly require the majority of rights listed since they represent an additional source
of revenue which will then be divided with the original publisher. The share payable
may range from 50% (for categories such as quotation and anthology rights) up to
80% or 90% for first serial rights (prepublication extracts to magazines or
newspapers) and reprint rights licensed to a third party.
Clause 11
The licence cannot be transferred without prior permission, except as a result of
authorised sublicences as outlined in Clause 10.
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Clause 12
The licence is restricted to those granted in Clause 1 and Clause 10.
Clause 13
Accounts will be paid on the western model, i.e. royalties based on actual sales. It is
common for academic publishers to account once a year (often calculating sales up to
December 31) whilst publishers of popular books are more likely to account twice a
year (perhaps accounting to June 30 and December 31). However, accounting periods
and the timing of payment may vary from company to company; the example given
requires payment to be remitted within three months of the accounting date. This
model specifies the information which should be supplied to the original publisher;
most western publishers have computerised accounting facilities and should be able to
provide these details.
Any subsidiary rights income earned during each accounting period should be paid at
the same time as royalties on the licensee's own edition/s.
Clause 14
Most foreign licensees would expect to account in their own domestic currency e.g.
sterling, dollars, deutschmarks etc. The question of whether tax should be deducted
from royalty remittances to the country of the original publisher will depend on any
tax treaties currently in force between the two countries concerned.
Clause 15
This clause provides a warranty and indemnity to the licensee. Some publishers may
require more elaborate warranties, including protection against obscenity; American
publishers in particular require very strong protection against legal action.
Clause 16
For a non-fiction title, many publishers may require the first option to acquire rights
in any revision. For fiction or some other titles, some licensees may require an option
on the next book by the same author if this will be controlled by the same original
publisher. In neither case should there be a prior commitment on financial terms since
much will depend on the status of the book and the author and the circumstances at
the time.
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Clause 17
This covers cancellation of the contract in the case of bankruptcy or breach of contract
by the licensee. Again, a reciprocal clause covering bankruptcy or breach of contract
by the original publisher may be requested.
Clause 18
This provides for arbitration in the case of dispute between the parties. Publishers in
some countries (in particular the United States) may be unwilling to accept arbitration
in a country other than their own. A compromise may be to specify that arbitration is
in a neutral territory such as Stockholm.
Clause 19
Although it is technically traditional for a licence contract to be operable under the
legislation of the country of the licensor, some western publishers may not be
prepared to agree to this, particularly if they are unfamiliar with the legislation in that
country. Many American publishers of general books insist that all contracts whether for the purchase or sale of rights - are operable under the law of the US state
in which they are located. A compromise may be to specify that the contract is
operable under the law of the country of the summoned party. Rights deals can often
founder unless agreement can be reached on this point.
Clause 20
This clause requires the foreign publisher to comply with any local procedures
necessary to protect copyright in the title and to take action against any infringement.