I have pieced together a draft response.
I am not at all sure I have appreciated the finer comments relating to all aspects of clause 3, so any amendments required would be appreciated
Dear XXX
I have now read through the proposed publishing agreement and taken informal appropriate advice. Following this advise, I consider it appropriate to raise some issues that have been highlighted and that I understand it is possible that we can negotiate.
Following review of the agreement, which is of a I appreciate that this is a standard formatagreement but, I am keen to address avert any possible concerns and avert excessive / limitations on my rights in the future.
However, please understand, I repeat that I am not in any way attemptingtrying to curtail sales of Learning Signposts and that I am extremelyvery pleased for LDA to promote the product worldwide.
I am informed that whilst a standard agreement is the norm, it is indeed possible to refine a contract such as the one you have forwarded to me. There are a couple of clauses I would appreciate further discussion and potential amendments toam uncomfortable with. I hope that on return from your travels we could resolve the issues listed below to the satisfaction of all parties, and move the Learning Signpost products to the market as rapidly as possible. Very exciting times!
Concerns:
1. Learning Signposts isare not a ‘new’ product. As you appreciate they have been extensively trialed and tested, refined and expanded, with reference to a wide range of different educational establishments. As such Impact Learning Ltd has invested significant time, energy and expense to get the products and information booklet to their current high stage of development and application – a feature less evident by many creators / suppliers.
1. 2. I am anxious that my current livelihood as an educational consultant, training staff to teach effective learning and improve performance by using these resources, will not be jeopardized or curtailed in any way. My professional work in schools requires me to use Learning Signposts with staff and students to create a shared and purposeful ‘learning language’, as well as demonstrate how to embed the teaching and application of learning skills across the curriculum. If LDA require me to discard my current stock from January 2012, there are financial as well as professional implications.
3. Finally, as you know it is my intention to sell / expand the range of current, related resources already available, as discussed with you at a number of prior meetings. From September 2011 I have limited my activities in schools to achieve this and I believe that this intent may be curtailed under the terms of the current contract.
Contract Issues:
2 & 2.1 Rights Granted - This clause is giving LDA an exclusive exploitation of all rights worldwide for the full term of copyright; this is generally regarded as my lifetime, plus 50-70 years thereafter, to include foreign, book club, electronic, film, audio, drama rights. As I understand it all of these are negotiable except for print rights. I can agree print rights, and indeed on seeing the Signpost design reiterate that putting these terms into Polish, Czech, Iranian etc (taking appropriate care and advice with regard to literal translation) may prove extremely worthwhile to schools, and highly profitable for LDA and Impact Learning Ltd.
However, as I intend to write a series of books relating to the Learning Detectives – linked directly to Learning Signposts / skills, I am unable at this time to agree to all rights contained within this clause, specifically referring to give away additional exploitation rights regarding LDA developing Signposts via books/film/drama.
I remain keen to expand these particular Learning Signpost resources with LDA, for example providing a short book for senior leadership teams on how to promote the use of learning language and improve the quality of adult instruction through the use of Learning Signposts. This could fall under the terms of a later additional contract with LDA, or through other publishers as appropriate - with reference to the identification and application of learning skills.
2.2 & 2.3 -Option Clauses. These clauses give LDA the right to either buy or make an offer for my next book/product.
I repeat my intention to expand the range of ‘teaching effective learning’ products with LDA as outlined in previous documentation between ourselves, but have been advised to remove this option clause, particularlyespecially clause 2.3 whereby if I am commissioned by someone else with regard to any other project, I have to offer it to LDA.
If this option clause cannot be omitted - permitting me to sell resources to other publishers if a higher offer can be obtained, then I require the insertion of a limited period during which LDA may bid on my next book / product; reflected within the royalty agreement.
3 - Payments to the Author / Royalties. I have yet to be provided with an indication of the number of Learning Signposts sets LDA seek to or envisage selling year 1 onward, relative to internal promotion techniques. As we anticipate that this product is of direct use to all schools world wide, across all age and ability groups, I would suggest that it be more reasonable seek to agree royalties at 10% for the first 5000, 12.5% for the next 5000 and 15% thereafter.
With the above context in mind, and with reference to Clause 3.3, it would seem appropriate to agree that the royalty rate applicable should be 5% of the Net Sum received.
As for clause 3.5 if we can amend the Rights Granted as outlined above, this can possibly be removed - if not, then a I would suggest a 50% split of net receipts would be appropriaterequired.
Finally, tThis particular clause does not appear to contain any information about proceeds if LDA grants the right to use to another publisher in the future – I would appreciate your comments in this regard in order that this can be discussed and/or negotiated furtherplease.
13 Indemnities & Warranties - clause 13.2 appears very over onerous on me and yet at the same time assures me very little involvement. I would require to be involved extensively in regards to any such Would it be possible for me to be involved and notified at the outset of any such allegations or proceedings in order than I can assist in defending any claim.?
14 Proof correction - again clause 14.2 appears onerous and unclear; given that LDA employs their own proof readers etc, then me bearing the costs in excess of 10% of the total costs to rectify is excessive. Further discussion is required on this point. I know from experience that those closest to the works can accidently disregard errors and omissions which external proof readers will recognise more easily. Despite extensive work in this area I would not regard myself as a skilled proof reader.
17 - Revisions of the Work or Updated Editions.
I bam advised that this type of clause usually only applies to nonfiction books, but then it can become paramount. As such it is suggested that I seek a mechanism to determine when the revisions have become so extensive it is essentially a new book and thus subject to a new contract (and higher percentage), and that the clause puts a cap on the number of revisions in any one time period - ref 17.2, which is particularly wide ranging and non defined. Your comments please.
Can I please take this opportunity, Bridget, to thank you for all your enthusiasm and advice to date. I trust these notes assist LDA and that through further discussion we can rapidly move forward. I would be happy to attend a meeting if appropriate, to enable the contract to be signed.
Kind regards
Carrie