First-time and novice textbook authors may ask themselves throughout the publishing process – “can my publisher really do that?” And the answer is “yes”. And “no”. And “it depends”. Your answer will be determined by the initial negotiation of contract terms and your willingness to invest time in marketing the work after it’s published. TAA’s newest e-book is full of advice on both.
During her 2019 Textbook & Academic Authoring Conference presentation, “Publishing in 2019: Charting new waters”, intellectual property attorney, Brenda Ulrich identified some of the legal aspects facing authors who are publishing in 2019 and beyond.
Whether working with a traditional publisher, self-publishing, or exploring open access options, contracts and copyright laws are still important. And as Ulrich notes, in many cases, “the more things change, the more they stay the same”. Below are some of the aspects for consideration as you continue your publishing journey.
Q: Writing professors’ rights: Can the university claim the rights to your publication/royalties based on your employment at the time of writing the manuscript?”
A: Brenda Ulrich, Partner, Archstone Law Group PC:
“It’s an interesting issue. Under standard employment law the employer owns anything created by the employee in the scope of their employment. And certainly writing and publishing scholarly work is considered to be in the scope of a professor’s job duties. However, within academia there is what is often called the “academic tradition,” namely, that professors and academics own their own scholarship.
College level textbooks and their publishers have been in the news a lot lately, with all of the major higher education publishers emphasizing a shift to a digital first market strategy. The vast majority of publishing agreements for established textbooks were written in a world where print books were the dominating market offering. As the world shifts, there are certain contractual provisions to be mindful of when evaluating one’s royalty statements and in negotiations over amendments.
In reality, print sales still dominate, but publishers are trying to move away from the model, and the future of higher education materials is uncertain.
As many of us return to campus for the fall semester, it may be time for both textbook and academic authors to take a look at what our institutions are doing regarding textbook purchases and costs. Is your campus offering Cengage Unlimited or signing up for Pearson’s Inclusive Access? With Pearson’s recent announcement this past July that it will also be “moving from ownership to subscription based access models”, several of the major publishers have now committed to digitally transforming their businesses into something more akin to Netflix than what authors have been used to (DVD purchases).
On August 12, 2019 the law firm of Susman Godfrey LLC filed a class action lawsuit against Cengage Learning on behalf of Douglas Bernstein and four other authors. Three days later, a similar suit was filed by Slarskey LLC on behalf of Grafton H. Hull.
Both cases reflect elements of a 2018 lawsuit against Cengage Learning by authors David Knox and Caroline Schacht, which was handled by Slarskey’s firm. At issue in all of these cases are Cengage’s emerging publishing practices and royalty calculations associated with its digital MindTap platform and the Cengage Unlimited subscription service.