PUBLISHER AGREEMENTS WITH AUTHORS

The “stakeholders” whose interests are represented in publisher agreements are almost exclusively the publisher and the author. Very few references to the interests of institutions or the general public occur in publisher agreements with authors.

“Clear allocation of rights that balance the interests of all stakeholders” (Principles 1 and 4.)

The following scenarios illustrate the variety of approach to copyright ownership now evident in publisher agreements with authors. Each approach contains a different allocation of rights and illustrates a different way of balancing the interests of authors, publishers and - in one scenario - the interests of an employer.

Scenario A : copyright is transferred to publisher Institute of Physics Publishing, UK: “There is hereby assigned to the Publisher (except in the case of a Government Work) with effect from the date when the Work is accepted for publication worldwide copyright in the Work free of all royalties for the full term of copyright including all extensions or renewals.
The Authors and/or other assignors of copyright hereunder are hereby granted with effect from the date when the Work is accepted for publication a personal licence:
After publication by the Publisher, to use all or part of the Work and abstract of the Work, without revision or modification, in personal compilations or other publications of the Author's own works, including the Author's personal web site, and to make copies of all or part of such materials for the Author's own use for lecture or classroom purposes…. Where the Author posts the Work to their personal web site then the Author should provide an electronic link to the Journal's web site… To post and update the Work on non-Publisher servers (including e-print servers) as long as access to such servers is not for commercial use and does not depend on payment of access, subscription, or membership fees.” The url is http://www.iop.org/EJ/authors/-page=copyright//

Scenario B : Author retains copyright.
Internet Journal of Chemistry: “Licensor [i.e. the author] grants to IJC, and IJC accepts from Licensor, an exclusive right and license to copy, publish, distribute, publicly display, sublicense, create derivative works, use and reproduce (the "Work") on and via any media or object, including electronic media, for and during the term of this Agreement and subject to the terms and conditions of this Agreement. All copyright and other proprietary notices on the Work will be included on any copy of the Work made by IJC. Licensor shall at all times retain ownership of all rights, title and interest in and to the Work.” The url is http://www.ijc.com/IJC/instr2.html

Scenario C : If copyright is owned by a third party - e.g. an employer.
The “Blackwell Publishing Copyright Assignment Form” is set out very clearly, including a section headed “If copyright is owned by someone other than the author”. The Blackwell form is accessible at their website.

“Thoughtful development and implementation of policies, contracts, and other tools” (Principle 2.)

Publishers have responded to concerns expressed by the academic community regarding the terms of copyright agreements. Some publishers have continued to feel it important that copyright is transferred to the publisher, other publishers have been willing to leave copyright with the author and request a “licence to publish”. The ALPSP Licence to Publish was drafted as a model for this new approach. A number of academic publishers have adopted the “licence to publish” approach. One example is the Oxford University Press licence, such as that for authors contributing to “Nucleic Acids Research”.
The actual allocation of rights under a “licence to publish” varies from publisher to publisher. In some cases the author may not regard the rights retained as being suitable, but the significance of this approach is that it is the “thoughtful development” by publishers of an alternative to copyright assignment. The Nature Publishing Group have also been innovative in their “License to Publish”, allowing the author to retain copyright and use the work in various reasonable ways while still protecting the interests of the publisher.

“Appropriate Copyright Management… will vary according to… the nature of the work” (Principle 3.)

Publishers do adopt various forms of contract or licence according to the nature of the work. The way in which they distinguish between various types of publication tends to be different from the distinctions adopted by universities. Whereas universities may distinguish between teaching and research content, publishers distinguish on the basis of type of publication.

The examples on this website relate mainly to journal articles, but understandably quite different arrangements are made by publishers for monographs or for compilations, such as encyclopaedias. Some publishers - like some universities - also distinguish between electronic or paper format, although the particular copyright requirements for electronic content are more commonly met by special clauses within a general publication agreement. Some publishers also vary the text according to the particular journal and securing access to the text of the copyright policy is only via the journal.

“Respect the interests of all stakeholders involved” (Principle 5.)

Publisher agreements express respect for stakeholder interests in various ways:

* Through the allocation of rights of re-use. Some publishers have been able to combine a firm approach to transfer of copyright with a good allocation of rights to authors. The American Physical Society “Transfer of Copyright Agreement” is a good example of this approach, meeting the interests of both publisher and author in a positive rather than a defensive way. The tone of the agreement is helpful, expressing respect for the varying interests in a way which comes across as open and straightforward.
* Through a description of rights and obligations. An example is the “Journal of Machine Learning Research” Non-Exclusive Publication Agreement”: “You retain copyright in your article, subject only to the specific rights given to MIT Press and the Sponsor [Journal of Machine Learning Research Inc.] in the following paragraphs. By retaining your copyright, you are reserving for yourself among other things unlimited rights of electronic distribution, and the right to license the work to other publishers, once the article has been published in JMLR by MIT Press and the Sponsor. After first publication, your only obligation is to ensure that first publication credit is given to JMLR and MIT Press. You hereby give to MIT Press the right to be the first publisher of the article in print form. You hereby give to the Sponsor the right to be the first publisher of the article in electronic form.”
* Through a non-exclusive agreement. Non-exclusivity is a difficult issue in respecting the interests of stakeholders, because publishers often need exclusive publication rights while authors may need the flexibility to give access to very similar content through other routes which may be viewed as “publication”. This issue is currently being worked out between publishers and authors in respect of posting to an institutional or personal website, which some publishers are willing to allow while others are not. Some publishers have been able to work through non-exclusive agreements without harming their interests.

“All stakeholders… have an interest in attaining the highest standards of quality, maximising current and future access, and ensuring preservation” (Principle 6.)

Reference to university or public rights in publisher agreements with authors are rare or non-existent. This is not because publishers are unaware of the interests of the public - most publishers support fair use rights - nor because publishers are un-concerned about future access, but because publishers see such issues as belonging in licence agreements between users and publishers rather than in copyright agreements between authors and publishers. As authors become more aware of the effect of copyright agreements upon access to their work, publishers may be expected to incorporate such issues into their agreements with authors. A sign of such developments may be the incorporation of the right to post to web-sites into author agreements with publishers.

“All stakeholders should actively promote an understanding of the important implications of copyright management” (Principle 7.)

Many publishers have assisted with a better understanding of copyright issues through involvement in national and international discussions regarding copyright management. The UK publisher Emerald has taken very positive steps to explain its copyright policy to authors. An outline of the policy is available at Emerald’ website.
The information provided explains why Emerald normally ask authors to assign copyright to the publisher while imposing no restrictions upon authors’ rights to re-use their own work. Emerald have also pioneered the use of an “Author’s Charter”. Equally the copyright policies of some university presses now contain explanations for authors of the reason for copyright transfer. One publisher providing a description of their policy in a context of concern for the author’s interests is Indiana University Press, the publisher of the “Indiana Law Review” . This publisher begins with a statement of co-operation - “We look forward to working with you to prepare the Article for publication” - which sets the tone for the copyright policy. The publisher then explains to the author why the policy has developed in the way it has done: “The publishing industry has grown increasingly complex in recent years, particularly with the expansion of new technologies for the delivery of information. In order to better manage the rights associated with your Article, and to provide optimal access to it, we believe that the University should hold the copyright to your Article, but that we should also grant you and the readers of the Article an explicit right to use and copy it under appropriate circumstances. We believe that this arrangement will properly serve our shared interest in reaching the largest readership possible.” Such policies indicate development in the direction of shared interests between authors and publishers.

(May 2003)

This document was prepared for SURF by Frederick J. Friend (ucylfjf@ucl.ac.uk).

The full document including the University Copyright Policies is also available in pdf. 'Copyright Policies and Agreements: implementing the Zwolle Principles' (201 Kb)