Writing Rights—personal perspectives

In his Writing Rights session, David Scott Hamilton made an incredibly important point when he described asking for a royalty in his contract negotiations with Anvil. The publisher showed him the numbers and said, *We just can’t do it.”

That conversation really underscored that building a productive publisher–translator relationship is a two-way street—mutual respect is key. The subsequent discussions during the workshop about concerns over relinquishing control by assigning copyright and ways to negotiate the best contract might imply an adversarial relationship, but having worked at a publishing house, let me offer this perspective:  publishers, in the vast majority of cases, aren’t out to screw authors over, just as authors who leave a small press after achieving some success to work with a bigger company aren’t trying to screw over their former publishers. Publishing is a business—one in which, especially in the literary world, margins are simply razor thin. Of course I’m by no means suggesting that artists shouldn’t try to negotiate a favourable contract—on the contrary. However, I think it’s important to highlight the fact that most publishers, particularly small literary presses, aren’t prolific money-making enterprises. Most are doing the best they can with what they have, and I think a more productive relationship would ultimately result if writers and translators approached their negotiations with that understanding in mind. It’s not so much that publishers want to hand artists the short end of the stick but that, in Canadian publishing, both ends of the stick can end up pretty short.

That said, I did very much appreciate and admire Martha Rans’s fervent advocacy on behalf of the artistic community. For artists whose work is exploited, having support like the Artists’ Legal Outreach can be invaluable.

When I attended Chang Han’s intellectual property session at Freelance Camp, I was left with a niggling question. Sure, you’re theoretically protected by a framework of copyright laws, but if someone infringes, not only do you have to discover the infringement, but you also have to be prepared to pursue legal action in the infringer’s jurisdiction. Rans’s comment about the difficulty of enforcement, particularly across borders, filled in the critical missing piece in my understanding.

Carolyn Swayze’s session consisted mainly of anecdotes from her work as an agent, and they were interesting—I didn’t know much about literary scouts before her talk—but the outline of the workshop implied she’d be discussing the Literary Translators’ Association of Canada’s model contract, which she didn’t address. I would have liked to see the anatomy of a translation contract to discover how much it jibed with my own experiences working with translators for a publisher. Luckily, it appears that the comprehensive LTAC booklet accompanying the workshop has all of that information and more—including foreign funding sources for translations.

Overall, Writing Rights was a very informative workshop, and I got to meet some terrific people. I’m amazed that it was free—another big thank-you to LTAC, the Canada Council for the Arts, and the Department of Canadian Heritage for sponsoring the event. If I could have made one suggestion, it would have been to make the day’s program available on the Word on the Street website prior to the workshop. I could find very little information about it, even the morning of, and I didn’t know what kinds of speakers and sessions would be featured until I arrived; knowing the workshop structure would have allowed for better planning on my part.

Writing Rights, Session 3—Carolyn Swayze on negotiating the best possible contract

Carolyn Swayze is the president of Carolyn Swayze Literary Agency, where she represents authors of literary fiction and nonfiction for adults and children. She spoke at the Writing Rights workshop about contracts.

As an agent, she works with authors to decide who will handle the rights in translation. Often publishers with large rights departments believe they are the best to handle them, but Swayze finds that they often don’t do anything with those rights. As a result, she’ll try to sell Canadian English rights only, sometimes North American English, and occasionally North American French and English rights so that the author can retrain translation rights to sell elsewhere. A problem Swayze encounters is that publishers in France usually insist on buying World French rights, whereas she’d like to retain North American French rights to sell separately.

Swayze works with a network of co-agents and literary scouts around the world to sell translation rights. After a while, “You get to know what kinds of books do well in different markets,” she said. Co-agents range from individuals to big international agencies, whereas scouts are paid by publishers, film companies, etc., to seek out appropriate projects for their clients. Scouts play an important role; with the number of books out in the marketplace, “it’s impossible to bring a book to enough people” for their consideration, said Swayze.

Echoing David Scott Hamilton, Swayze emphasized the importance of developing relationships. Seek out publishers and co-agents in countries in which your language of choice is spoken, she advised, and ask scouts for their client list. (On the topic of how to find scouts, Swayze was a bit coy: “Do a little research. There’s all sorts of online material.”) Promote yourself so that people know you exist. Once you’ve established some credibility, you can start negotiating for a bigger cut in your contracts.

Translators often complain about having difficulty getting a royalty split, but Swayze has seen it happen; she even told us of a translator in Italy who managed to secure a split of 50%. The other side of that coin are those who are essentially paid a fee for service, and some translators don’t even get billing on the front cover. If you have an agent, he or she will usually negotiate the contract on your behalf. How do you find a good agent? Swayze suggests researching online and carefully reading an agency’s submission requirements to make sure that you’re a good fit. Also, read the acknowledgements in books in your genre; authors will often thank their agents, and you can get some names that way. If you write nonfiction, prepare a good proposal for an agent’s consideration; for fiction, especially a debut work, you may have to complete it before an agent will look at it.

Swayze is realistic with her advice, warning that if you secure one contract but don’t earn out your advance, it becomes much harder to sell another book.

Writing Rights, Session 2—Martha Rans on copyright law

Martha Rans is a copyright lawyer who co-founded the Artists’ Legal Outreach. The ALO runs a legal clinic at which artists and arts organizations can, by donation, have a thirty-minute consultation with a lawyer or law student about a problem related to their artistic discipline, including issues relating to contracts and copyright. Rans spoke to Writing Rights participants about copyright issues, particularly as they relate to writing and translation.

Copyright exists so that creators can protect their intellectual property and allow them to earn money from their work, which encourages creative production. It’s an important value for artists, and most artists’ organizations are vocal in advocating for copyright. Of course, since, as Rans said, “everything about who we are as people is connected to culture and creativity,” we have to strike a balance between artists’ ability to protect their work and users’ ability to gain access to that work; we’ve built into the copyright structure the concept of the public domain.

What’s copyrightable? Books, songs, images, plays, software—forms of creative expression. Copyright doesn’t cover a compilation of facts or titles or utilitarian goods. Concepts and ideas are not covered by copyright; it’s the expression of those ideas that are covered. Copyright covers original work, which means that it must be original to the creator. For example, two people could take photos that happen to look identical, but both images are protected by copyright. Copyright takes effect as soon as you’ve created your work and fixed it in a tangible (including digital) form, and you don’t have to register your copyright. However, if you’re collaborating with other people and it may become necessary for you to clearly establish when you created a work, you might want to register it. Most importantly make sure your name is associated with your work. Including the phrase “All rights reserved” with your copyright notice means that your permission is needed for any use involving your work.

Copyright lasts for a term of death plus fifty years in Canada (now true for photographs, too). In the U.S. and E.U., the term is death plus seventy years; Canada’s shorter term allows our homegrown artists more freedom to explore. Rans said that the issue is not whether you can play around with a work under copyright but, once you’ve done that, whether you can then sell it for commercial purposes. What’s considered commercial? The line isn’t always clearly defined—for example, in cases where you give content away online but charge for advertising on your website or where the content is used by a non-profit or educational institution.

Associated with copyright are moral rights, which includes paternity (the right of attribution) and integrity (the right to prevent your work from being mutilated, distorted, or modified in a way that damages your reputation). Homages are culturally important—they’re genuine creative expressions in their own right—but, Rans advised, put yourself in the shoes of the artist you’re imitating. Often artists care less about the money and more about how their work is being used. Rans also noted that the U.S. doesn’t include moral rights in its copyright act.

If you own copyright to a work, you can assign it, or you can license it. When you assign your copyright, as a writer usually does with a publisher, you retain very little other than moral rights—you essentially sell your ability to control it. Licensing allows others to use your work under specific conditions and often within a specific time frame. Rans stressed that contract negotiation is hugely important, since you’re likely giving up a huge amount of control when you assign your rights. “You need to get independent legal advice when entering into an agreement with a publisher,” she advised, and the ALO clinic offers artists the opportunity to do that.

So what constitutes infringement? Again, there’s no bright-line test. The criterion of “substantial similarity” can be subjective, and something that is infringement to one person may not be infringement to another. If you find yourself accused of infringement, it doesn’t mean that you’ve infringed—but do be prepared to answer the accusation. Rans warns that if you happen to find something you’d like to use—like archival material or old photographs—it’s your obligation to search for the original copyright owner. On the flip side, if you discover your copyright has been infringed, you have to sue the infringer in his or her jurisdiction—which can be tricky for artists of limited means. “It’s important to understand that when you upload something to the Internet, you’re giving up a good deal of control.”

Built into the Copyright Act are exceptions that allow works under copyright to be used in some situations. The most important exception is fair dealing, where works can be used for research, private study, news reporting, and criticism. Bill C-11 recently added three purposes to fair dealing: education, parody, and satire. The education provision is a very contested area at the moment, as it changes the game for educational publishing. (As an aside, Bill C-11 also makes it illegal to circumvent digital rights management.)

Artists hoping to make their work more available can turn to Creative Commons, which is not an alternative to copyright but a licensing framework that is part of copyright. Creators can choose licensing, for example, that allows others to modify their work but requires attribution or that allows others to redistribute their work freely but requires that it remain unchanged.

If you’d like to learn more about Creative Commons, Rans will be a panellist at a Creative Commons Salon on Monday, October 15, from 7pm to 9pm. Admission is free, but you do have to sign up.

Writing Rights, Session 1—David Scott Hamilton on getting your literary translation published

David Scott Hamilton led the first session of the Writing Rights workshop, with the support of translator Annie Bourret. Hamilton was shortlisted for the Governor General’s Award for Translation in 2011 for Exit, translated from Nelly Arcan’s Paradis, clef en main. In his interactive session he told us about the journey that began with a meeting with Anvil Press’s Brian Kaufman at the Word on the Street festival in 2009 and has come full circle three years later with this workshop, put on as part of Word on the Street 2012. His current project is translating the Governor General’s Award–winning Kolia by Perrine Leblanc for House of Anansi Press.

A quick poll of the room revealed that roughly half of the participants were translators, working in languages including Turkish, German, Mandarin, Bulgarian, French, Farsi, Spanish, and many others. The other half were writers, illustrators, or editors.

Hamilton launched the session by asking this question: What is the most important skill a literary translator must have? These were some of the audience’s responses:

  • cultural knowledge
  • an understanding of the target audience
  • a knowledge of how to get beyond the words to the ideas
  • a knowledge of where to access resources
  • a creative imagination
  • excellent writing skills in the target language
  • an understanding of translation methodology
  • passion about the work
  • critical thinking

According to Hamilton, however, a literary translator’s most important skill is the ability to build relationships. “Building a relationship with a publisher is crucial to get started, to get your foot in the door,” he said. He described how he approached Brian Kaufman at Anvil Press’s Word on the Street tent in 2009 and struck up a conversation. A few months later, he read Nelly Arcan’s Paradis, clef en main and knew it was a book he wanted to translate; it was the rapport he’d established with Kaufman that allowed him to make it happen. He prepared a sample translation of about 5,000 words and proposed the book to Anvil.

The next steps in the process were for Anvil to acquire the translation rights from the French publisher and to secure funding for the translation. The only way to get money for literary translation in Canada, explained Hamilton, is through a grant from the Canada Council. To be eligible for a grant, a translator must be a Canadian citizen or permanent resident and satisfy at least one of the following criteria:

  • be a recognized professional translator with a degree in translation,
  • have had at least one literary translation published by a recognized publisher, or
  • be a professional writer.

For Exit, which was Hamilton’s first literary translation, he qualified only under the third criterion, which is why, he emphasized, it’s so important to write as much as you can and to get your work out there. “Build a portfolio,” said Annie Bourret, “even if it starts with writing for your community newspaper.” All of this will go on your CV, which the publisher will need to apply for the Canada Council grant.

The publisher and the work must also satisfy certain eligibility requirements, which are detailed on the Canada Council site. For example, the grant must be secured before translation begins, and the work must be translated into French, English, or an Aboriginal language for publication in Canada. Fiction titles are eligible for $0.18 per word of the source text, to a maximum of $25,000.

After Anvil secured the translation rights, the translation contract was negotiated. “Go into that contract negotiation informed,” advised Hamilton. He also noted that “a literary agent won’t even look at you if you don’t have a track record.” In his contract with Anvil, he received no royalties. Brian Kaufman showed him the numbers and explained that it just couldn’t be done.

The contract also set out the delivery date for the manuscript, and Hamilton stressed the importance of building trust through professionalism: meet your deadlines and “do damn good work.” He adds, “The idea of work–life balance? Forget it! What works for me is work–life integration.” And be prepared for the fact that your responsibilities don’t end when you submit the manuscript; the translator still has to be involved with copy editing and proofreading, not to mention promotion.

How important is the author–translator relationship? Hamilton contends—and somewhat controversially, he admits—that the author’s intention is wholly in the text. A literary translator’s job is to determine what that intention was. Nelly Arcan had committed suicide before her original book had even been published, so the author–translator relationship for that project didn’t exist. For his current project, the translation of Kolia, Hamilton travelled to Quebec to meet with Perrine Leblanc, and he got to know her but never asked her about her book. He likened her original work to a musical score and his role as that of a musician. “I am to interpret her score.” Critical interpretation and creative writing skills are crucial for literary translation, he said. He described the act of translating fiction as being 25% translation, 75% writing, and he noted the importance of listening to the language as you read the text in the source language. “You’re not translating words,” he said. “You’re translating cultural histories and the resonance of the language.”

Hamilton closed off the session by letting the workshop participants know about some additional funding available to publishers. Canada Council offers supplementary grants for

  • travel assistance (so that the translator can meet with the original author)
  • editing assistance,
  • promotional assistance, and
  • reading fees (for the initial reader’s report).

Also, the Public Lending Right Commission offers creators compensation for their works that are available at public libraries, but you have to register. Annie Bourret noted that it’s not unusual for some writers to make more in public lending right payments than in royalties.

Writing Rights: Writing, Translation, and Copyright

I’ve signed on to give a talk at the February 2013 EAC-BC meeting about editing books in translation. Figuring I should get a translator’s perspective on the topic, I’ve slowly been making my way through Andrew Wilson’s anthology Translators on Translating, and I attended a free full-day workshop yesterday at the Vancouver Public Library called Writing Rights: Writing, Translation, and Copyright. The workshop was part of the Word on the Street festival and was sponsored by the Literary Translators’ Association of Canada, the Canada Council for the Arts, and the Department of Canadian Heritage. It featured a session by Governor General’s Award finalist translator David Scott Hamilton, who took us through the process of how he came to translate Paradis, clef en main into Exit and explained the structure of and eligibility requirements for Canada Council of the Arts grants, which are the main funding source for literary translators in Canada.

Hamilton was followed by copyright lawyer Martha Rans of Artists’ Legal Outreach, who gave a session about copyright issues relevant to translators, including the recent changes to the Copyright Act as a result of Bill C-11.

Literary agent Carolyn Swayze finished off the day with a short session about negotiating publishing contracts.

All three speakers (and many of the workshop’s participants) offered some important insights on translation and copyright, and I’ll summarize their talks here over the next few days. More than one person has told me that my blog posts are generally on the long, indigestible side, so rather than shove the whole day into a single post, I’ll break the workshop up into bite-size pieces by session. Stay tuned!