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HOWTO Negotiate a Creative Commons License: Ten Steps
xtine burrough and I just published Digital Foundations: an Intro to Media Design with the Adobe Creative Suite with AIGA Design Press/New Riders under a CC license (a first for the publisher.) The book teaches the formal principles and exercises of the Bauhaus through lessons in the Adobe Creative Suite. There are a whole spate of reasons why we wrote this book, but the focus of this post is on how we were able to negotiate the Creative Commons license from New Riders, which is owned by Peachpit, which is owned by Pearson (a big big corporate big thing.)
1. Figure out what you want and ask for it
Every contract is negotiable. Choose what you want and ask for it. Do not be afraid to ask for it. In our case, we focused on getting Creative Commons licensing into the contract, but we also asked for and received other modifications, including a higher percentage of royalties after a certain number of books sold, a stipend to design the book and ownership of the book layout and design (which we licensed CC).
2. Know that your publisher is scared
Publishers saw what happened to the music industry. Sales of print books are down across the board. Publishers know things are going to change, but they don’t know what that change is going to be. Know that your publisher is willing to experiment. “Inspire them to be leaders.” (ironic, but serious)
When we set up our own domain, showed the publisher the wiki (licensed CC, well before we signed our contract), and our blog, we were kind of scared they would be upset with us. We were surprised and relieved when they sent it around to everyone in the company as a model of how to use wikis and blogs. It was something they had been thinking about trying to do, but hadn’t. Be the leader.
3. Show them the money
Ultimately, it is all about the bottom line. Mark Hurst has written a no-holds-barred analysis of how much it is all about the bottom line. Your central argument has to be “you will make more money.” Sure, you may be more interested in free culture, collaboration, or maximizing mindshare, but someone in the decision process will need to be convinced that it will increase sales, or at the very least that it won’t loose them money.
4. Pitch it with facts
Use case studies to argue with facts. It also helps for them to see that other reputable publishers have licensed books Creative Commons. O’Reilly has some a study on an Asterisk book that we used very effectively.
The Asterisk book sold 19k copies over two years (about what comparable books from O’Reilly were selling), but was downloaded 180,000 times from *one* of the 5 sites that mirrored it.
Also consider google as arbiter:
Results from google search breakdown of references to the two books in the oreilly case study (at the time of negotiation, early 2008):
asterisk: 139,000 references in 2 years (2005-2007), or 70,000 per year
understanding the linux kernel, 42,000 references in 7 years (2000-2007), 6,000 per year
So there was 10x the press/blog/reference/hits for the CC licensed book.
And explain the the 75/22/3 breakdown:
“David Blackburn, a Harvard PhD candidate in economics, published a paper in 2004 in which he calculated that, for music, “piracy” results in a net increase in sales for all titles in the 75th percentile and lower; negligible change in sales for the “middle class” of titles between the 75th percentile and the 97th percentile; and a small drag on the “super-rich” in the 97th percentile and higher. Publisher Tim O’Reilly describes this as “piracy’s progressive taxation,” apportioning a small wealth-redistribution to the vast majority of works, no net change to the middle, and a small cost on the richest few”
and more here: http://tim.oreilly.com/pub/a/p2p/2002/12/11/piracy.html
And make the argument that of those who get the book for free, most of them wouldn’t buy the book in the first place. And in that group, there will be a small percentage of converts who will then go out and buy a hard copy of the book for themselves, or as a gift. This percentage of converts more than compensates for any loss in sales due to the free version.
5. Identify your advocates & the decision maker
Different publishers have different agent/editor structures, but in our case, we were working with an excellent Acquisitions Editor, who quickly understood our project, from the concept of the book, to the importance of Creative Commons. We convinced him, and he then convinced the Publisher.
Figure out who in the organization is the decision maker on the issue. Often this is going to be the Editor-In-Chief, or the Publisher. Figure out who the boss is, and figure out what their interest is in it. Know their motivation. Are they conservative? Push the profit potential. Are they known for groundbreaking books? Push the “new-ness” of the strategy. etc. In our case, we pushed profit potential, synergies (see below), bloggability, and newness/coolness.
6. Build partnerships and make CC plans
Early on a colleague put us in touch with Adam Hyde of FlossManuals.net, an social entrepreneur who has created a community based open source documentation site. We saw the huge potential of the Creative Commons license to “translate” the book from the Adobe Creative Suite to GIMP, Inkscape, and the other FLOSS applications; and because of the way their system works, it would then be translated into Farsi, Brazilian Portuguese, Spanish, etc. Showing this very concrete example of a tangible way that Creative Commons license would increase the book’s impact helped the Publisher see the power of the CC license.
7. Write it on a wiki.
Pre-emptively license it CC. Write your book on a wiki before you begin negotiations. Give the wiki a CC license. The wiki, or some other electronic version, is a different work, and therefore if you end up unable to convince the publisher, at least the wiki is CC. Other authors we spoke to simply published their manuscript on a wiki and gave it a CC license. While a lawyer might be able to give you an opinion about whether you can post a manuscript for a book and CC license that manuscript retroactively, I think it is safer to pre-emptively license your wiki.
8. Provide sample verbiage
Make it easy for them. Give them the verbiage. Some legal departments are going to rewrite the contract. Others are going to create a rider. Cory Doctorow was kind enough to provide us with the verbiage his agent wrote: http://www.boingboing.net/2007/03/20/model-contract-claus.html . This is the really simple language we ended up using:
“Publisher agrees to add the Creative Commons license designation to the Copyright page of the Work.”
This isn’t perfect, and we did have some further conversations when it came time to actually layout the title page. We probably could have been more specific about which license, but this is what their legal agreed to, and considering we were doing a CC-BY-NC-SA, which is the most restrictive, we were not super worried.
9. Do your CC homework
Allay any of their fears by doing your homework, and answering their questions. One of the issues that came up was the inclusion of (C) images in our CC licensed work. The legal department thought that might mean that we were infringing on the (C) of the images, forcing them to be CC. Similarly, we had concerns that the Public Domain images might be restricted by the CC license on the book, something known as Commons Enclosure.
After a number of phone calls and emails we got confirmation that in fact this was not true. Nathan Yergler of the Creative Commons Foundation wrote us to say
“You can use a copyrighted work, assuming you have the rights to do so (either under fair use or explicitly negotiated), in a CC licensed work so long as you point out the exceptions in the license notice. This is effectively what Creative Commons does with our website — see the footer text where it states “except where otherwise noted…”
And as I mentioned on the phone, Creative Commons can not offer legal advice or opinions and this should not be interpreted as such.”
Of course we could include (C) images in a CC book, we simply had to state that they were (C). Likewise, we stated on the front page of the book (right below the CC declaration) that all images in the book were Public Domain unless otherwise noted. The lawyers liked this.
10. Be patient
It will take a while. Keep writing on the wiki, and move ahead planning on your successful negotiation. Legal departments move very slowly. It took so long, I don’t even remember the dates. At least 6 months. But it took longer to write the book, so it didn’t hold us back at all! It will be worth it.
More links and info:
Article about Cory Doctorow’s successful use of CC:
Example clause of CC contract:
CC info, a case study:
The 75/22/3 breakdown: