Limitation of nonexclusive electronic rights

[elratliff]

Hi all,

On Sept 1st, the SFWA released a new model magazine contract (https://www.sfwa.org/2015/09/sfwa-relea ... -contract/), and I've been trying to wrap my mind around the rights they advocate for short story authors. There's a clause in the contract on the limitation on nonexclusive electronic rights that seems rather nice. It states:

The grant of nonexclusive electronic rights to the Publisher is subject, however, to the following limitation: after three (3) years from the date of initial publication, Author may terminate the grant of non-exclusive electronic rights and ask the Publisher to remove the Work from the magazine's web site, archives, electronic back issues, bundles, or any other electronic format, and the Publisher agrees that it will comply within 30 days of such request.

I was curious, though, whether any of the pro magazines actually include this type of limitation in their standard contracts or if it's a clause a writer has to proactively request. My impression from browsing magazine websites (e.g. Clarkesworld, Lightspeed, Beneath Ceaseless Skies, IGMS, Tor.com) is that once a story appears on the website, it stays on the website forever. I'd love to hear of any counterexamples.

[s_c_baker]

The key words there are:

Author may terminate the grant of non-exclusive electronic rights and ask the Publisher to remove the Work

There's not really much benefit to taking the story down except for reprints--and even then, there are places that will do reprints even if your story is still available online elsewhere.

That said:

Lightspeed has its own "model contract"which is generally considered to be author-friendly, and it has unlimited nonexclusive archiving built in for "as long as the Publisher maintains the Lightspeed Magazine website."

BCS doesn't have its actual contract up, but they "hope that [authors] will let us keep the story in our online archives after 180 days" so it sounds like it's optional there.

IGMS likewise buys "nonexclusive online/electronic rights in perpetuity for all editions of the magazine"

So it seems that generally speaking, the trend is not to limit the non-exclusive (archiving) rights. I imagine in most cases you could ask the publisher to change that line of the contract, though, if you thought it was important to you.

[elratliff]

Thanks, Stewart! Good to know that BCS is amenable to a 180-day limit. Reprints are exactly the reason I asked about the clause. I've been fascinated with the idea of them ever since I heard of Mike Resnick's "No Heavy Lifting Sales," so I'm trying to keep an eye out for magazines that won't limit reprint possibilities.

[s_c_baker]

Generally speaking, reprint markets don't pay as much as the high-profile (free to read) places like ClarkesWorld and Lightspeed. So while there's definitely something to be said for submitting with an eye to reprints, I'd avoid doing that to the extent where you cut yourself off from top-tier magazines in the first place. :)

[elratliff]

I agree with your sound advice. And I wasn't intending to rule out the top tier magazines. =) Tor.com pays well enough that it's probably worth giving up a lifetime of reprints. Assuming the reprint rate is 1 cent/word, I'd have to reprint a story 19 times after an initial pub with BCS to match the single sale to Tor.com. Now, Mr. Resnick has resold a few stories over 20 times, but we can't all be Mr. Resnick.

BCS + 2 reprints would earn the equivalent of Lightspeed. I'm hoping Lightspeed is amenable to negotiation on their generally author-friendly contract. Otherwise, BCS seems the better deal.

[s_c_baker]

BCS is pretty amazing too--even if they're not quite Lightspeed! I'd be more than happy to be published in either.

[orbivillein]

A consideration of why nonexclusive electronic rights time limitations matter is for subsequent limited exclusive electronic and print rights, for reprints that want a season of exclusive access, especially to highlight a writer's body of work in a collection, which is best some previously published and acknowledged content and new content not priorly published. Persistent electronic rights time limitations are otherwise pointless and are counterproductive for marketing purposes.

Writer So-and-so publishes several stories off Broadway, and several more on Broadway, and a collection comes to mind, or an anthology wants several for sequential publications. So-and-so's career is ascendant and a novel is in the pipeline. So-and-so's web site links to previous publication, the anthology publisher accesses the works there, and so does the novel publisher considering acquisition, plus, secondary and tertiary discourse, reviewer and lifestyle, publications. Not to mention, readers who are eager to sample So-and-so's previous work in anticipation of a pending new release and afterward.

What? The links are broken, even on So-and-so's web site, because of a nonexclusive electronic rights time limitation, or worse, online publishers phase out backlist matter. How's a publisher and consumer prospector going to conveniently sample So-and-so's work? Instead of insistence upon a time limitation ceiling, for marketing purposes, insist upon a time limitation floor, or insist upon both: Not less than and not more than, say, one year and five years, respectively. Or three years and ten years. Also, insist upon notice of other works included in prefatory content. And for geekus crow's sake, keep the everloving links current.

Back in the day, about pre-World Wide Web, actually, collection, anthology, and novel front matter included reference to other works and where they were available. The era of publishers' default writer promotion and product access through these methods has declined appreciably since then. Novels still include reference to books published by a writer, though only books published by the publisher. Back issue magazine access has declined most. Insist upon acknowledgment of all pertinent works, regardless of publisher and form.

Anyway, negotiate favorable though harmless terms regardless, and terms that promote, advertise, publicize, and package a writer's works and the writer: the four corners of effective marketing. Not to mention, the work res ipsa loquitor -- speaks for itself. The works' merits market, or not, themselves, the productive marketing feature of substance. Access is one side of the phenomenon; merit appeals is the other side.

[elratliff]

Hi orbivillein,

I agree with you on the importance of marketing and the benefit to having work available for free online. I'm curious what you think of a writer self-publishing a work after terminating the grant of non-exclusive electronic rights for the work. The way I see it, the writer then has the power to provide an up-to-date link to the work (avoiding the problem you'd mentioned) and also the power to set its price level (which could be set at free) and also keep the option open to resell the work to another publisher. That seems like a win-win-win to me. But maybe I'm missing something.

[orbivillein]

Nonexclusive rights means any publisher with reprint rights, even a self-publisher, could reprint a work electronically, print, or both, at any time after an exclusive rights time limitation term expires. I don't see any reason for a writer to remove a work from "print" if the work is under a nonexclusive rights contract, except if a publisher has allowed a work to lapse in print -- digital or paper. Full rights reversion at a time a work goes out of print should be a contract term. Then a floor and ceiling time limitation satisfies terms for first-use publisher and writer and any subsequent reprint publishers.

However, reprint publishers who want a term of exclusive rights might desire a nonexclusive rights publication be removed from access, for which the ante should be upped. Uncommon, but some reprinters do. That, to me, is an error of cutting off a nose to spite the face.

Also, many digest publishers acquire an exclusive first-use rights season of several months to a year, which proscribes reprint during that season, after which the work becomes nonexclusive. That exclusive contract term best be honored, needless to say, and the exclusive rights season clearly defined in a contract.

One consideration then is acknowledging previous publication, which may be a contract requirement and is a responsibility anyway, if not a further marketing feature.

I'd advise, though, if self-publishing a reprint to add additional and new content, like a substantive revision, possibly reversion to an unedited-by-publisher version, maybe commentary about the work, perhaps the inspiration source, intent, and philosophical meaning, and certainly respectfully acknowledge previous publication. That way, the work is partly fresh and captures fans again.