Common Commercial Publishing Rules

From E-Learning Faculty Modules

Contents

Module Summary

In academia, for both faculty and students, the line between academic and commercial work can be a thin one. Many faculty and students are practitioners in the field. They may compete in commercial contests. They may submit work for publication in proprietary (commercial) publications. They may create slideshows and digital learning objects (DLOs) for use by publishers on their websites. In that light, it is critical for those in academia to review how the rules of commercial publishing differ from academic publishing. This module provides a light overview of some of the differences. All who may wish to engage in commercial use of their work need to consult with their supervisors and possibly the university’s legal counsel, as their circumstances may dictate.

Takeaways

Learners will...

  • Consider when their work becomes commercial
  • Review how the rules of commercial publishing differ from those of “fair use” rules under academia
  • Consider why commercial rules differ from academic rules of publishing
  • Review methods for retrofitting a work for commercial use
  • Review some typical standards and terms of commercial publishing


Module Pretest

1. When does faculty work become “commercial”? When does student work become “commercial”?

2. How do rules of commercial publishing differ from the “fair use” rules under academia?

3. Why do commercial rules of publishing differ from academic rules of publishing?

4. What are some typical standards and terms in commercial publishing?

5. How can a faculty member retrofit a work for commercial use? How can a student retrofit a work for commercial use?

Main Contents

Creating original work, writing, and publishing are common aspects of academic work.

1. When Written Works Become Commercial

In the course of typical academic work, faculty and students engage in plenty of content creation. Faculty members create lectures and slideshows for teaching and professional presentations. They write journal articles and book chapters. They write and edit books. With the popularity of websites linked to publications, they may well work to create study guides and slideshows linked to their texts. They collaborate with colleagues. They may have ideas that have commercial value, and the university may pursue patents on their and the university’s behalf. Their research may result in insights and practices that are “monetizable.”

Learners, too, create contents in their course of their studies. They write papers and analyses. They create (often original) designs and art. They collate plenty of their work in portfolios. For a majority of students, they may not go commercial. For some, though, their works are often exemplary and have a place in the public (and often commercial) sphere.

In other words, it can be fairly easy to transition from pure academic “publishing” to commercial work. One simple way of considering this is that anytime a faculty member or learner moves out from under the auspices of the accredited, non-profit, academic institution and publishes for pay, he or she is now in the commercial zone.

2. Differences between Commercial and Academic Publishing

Commercial publishers are those which publish works in a variety of forms (online, print, e-book; journal) in order to earn a profit (or at least break even). There are a variety of distribution channels for such publications: brand-name journals; book imprints; book series; stand-alone texts, and others. Most publishers have subject areas in which they specialize. Most books are professionally edited or peer-edited.

In academia, there are a number of commercial publishers. They often elicit texts for a set readership of learners and require a guaranteed user base before they proceed with signing contracts for book projects. Many Open-Access works require authors to pay publication fees which may range in the thousands of dollars for one publication. This “author pays” route enables publishers to cover the costs of the editing and publishing and then making the contents available for free and broad access, instead of going with the “reader pays” model. Open-access publications often retain all copyright.

Further, there are open-source publications which make works available through copyright releases which “give away” certain aspects of rights. For example, open-source works may be released under any number of Creative Commons licenses that define how others may use the copyrighted works. Most Creative Commons releases require giving credit to the original author. Others release a work to be revised and edited as long as the works are also open-source. Still other more liberal licenses enable copyrighted works to be used for free even for commercial purposes and without acknowledging the original author (rare). A CC release does not mean an originator of works (an author) loses all rights. The author retains copyright but shares some rights. Some authors put works out wholly into the public domain, which means the works are under no copyright and may be used in any way others choose.

Under Fair use, those faculty and researchers working in academia have a right to publish small parts of other works with the proper source citations (crediting) in order to pursue their research work. Under U.S. Copyright law, there are four factors to consider whether “fair use” may apply:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work.

There are a number of caveats and complexities, so it may help to consult an attorney before making high-risk moves. Generally, it’s safest to query the actual copyright owners for permissions to use a work.

The default assumption is that all works are copyrighted. Just because works are easy to access and copy online does not mean that they do not have copyright protections.

As a side note, most universities have intellectual property (IP) policies. Universities have an interest and some ownership over research. However, most books and papers are thought to reside in the ownership of the faculty and staff.

3. Why Do Commercial and Academic Rules Differ?

Commercial rules differ from academic ones because commerce is not seen as needing special copyright exemptions to achieve their work.

Copyright was ultimately created as a tool to encourage people to innovate and benefit from their innovations financially, but copyright involves the ultimate release of works into the public domain over time. The http://www.copyright.gov/help/faq/faq-duration.html term of copyright protection] depends on various factors, but the assumption generally is that works created after January 1, 1978, lasts for the life of the author plus 70 years.

4. Typical Standards and Terms in Commercial Publishing

What are some of the basic commercial rules of publishing?

All text and imagery in a manuscript should be provably original to the author. Copyrighted works may be referred to in a sparing way. Most contracts limit quotes from another text to 50 words, and those words have to be quoted verbatim in quotation marks and cited. (Anything longer than 50 words will require documented permission from the other source.) Images and diagrams have to be fully original, or they have to be provably in the public domain, or they have to come accompanied by a full and legal release by the owner of that image (unless there is a blanket legal release on the site from which an image was taken). (This goes even for screenshots of web pages.)

Most publishers buy all rights to a manuscript. Many buy all rights to a manuscript in a certain geographic region or market (like North American publishing rights). Authors need to review their respective contracts closely before signing because they may well be giving away plenty of rights when they sign. Some have been known to have to get permissions from publishers to use their own writing in class. A common clause in a publishing contract is the author’s indemnification of the publisher; in other words, the authors have to guarantee that the works are wholly original, and that if the publisher is sued for copyright infringement, the author will be a defendant in the suit and will be liable for damages.

Common mass media rules apply, such as the need to avoid libel or defamation, such as the need to respect the privacy rights of those described in a text.

5. Retrofitting an Academic Work for Commercial Use

Some works created under “fair use” may be retrofitted for commercial use. Essentially, this means that the faculty member, staff, or learners must go through and scrub the works of anything that is copyrighted (or even assumed to be copyrighted).

This means that if copyright permissions are requested, then it has to be done with a proper representation of how the works will be used (commercially). This means that any media releases used for videography, photography, and / or audio recording will have to be re-attained under the auspices of commercial use. One cannot use a media release signed under one set of understandings for another context.

Simply re-scanning or re-drawing an image does not make it the property of the author. Actual rights releases have to be attained from the copyright owner.

If rights cannot be acquired for a certain work, then the author cannot use that work.

Those transitioning to commercial use of a work may start fresh and create contents with full legality and documentation from the beginning.

Examples

(There are various complexities to copyright depending on the unique situations of the various faculty, staff, and learners. It would be a good idea to have individuals pursue expertise on and off campus for actual advisement. This module is for information only.)

There are online sources with access to a variety of real-world cases: Stanford University Libraries “Copyright & Fair Use”

How To

You may wish to sample the University of Minnesota Libraries Fair Use Evaluator.

Possible Pitfalls

Publishing entails risk. It is in the interests of any who would pursue publishing to know what the environment is, what the rules are, and how to proceed in the optimal way possible.

Module Post-Test

1. When does faculty work become “commercial”? When does student work become “commercial”?

2. How do rules of commercial publishing differ from the “fair use” rules under academia?

3. Why do commercial rules of publishing differ from academic rules of publishing?

4. What are some typical standards and terms in commercial publishing?

5. How can a faculty member retrofit a work for commercial use? How can a student retrofit a work for commercial use?

References

U.S. Copyright Office

Copyright Basics (courtesy of the Office of Academic Personnel at K-State)

Extra Resources

Please see Academic Writing and Publishing.