Issues for Agreements with Publishers

Introduction

What is this list?
It is a checklist of points to consider when entering into, or advising faculty on, publishing agreements with publishers. Every agreement requires a written and signed document, but this may be as brief as the circumstances permit.

Where does it come from?
It was produced by members of the ‘Zwolle Group’, a collaborative group aiming to develop ‘scholarship-friendly’ copyright practices which balance stakeholder interests.

Why do you need a written agreement with the publisher?
In order to be legally watertight, it is always best to have a signed written agreement between the rightsowner and the publisher. This is equally true whether copyright is being granted to the publisher (and the necessary rights granted back to the author and/or university), or whether the rightsowner is merely granting specific rights to the publisher. In the case of multiple authors, it is always prudent to have every author sign the agreement.

When one of the parties has retained the right to grant other organisations certain rights (for example, to copy a work for internal purposes), those organisations may ask to see a copy of the agreement, for reassurance, before going ahead.

There are a lot of points in the list; which are the most important?
Some points are more important than others; for minimal agreements (particularly those for journals, where the motivation for publishing is somewhat different than for books) probably only those points marked with an asterisk are of key importance. Different terms may be of relevance for different types of works (journal articles, books, teaching material, software etc).

List of key issues

*1.Parties: who the agreement is between
Initial copyright owner(s) – may be one, or even more than one, of the following:
Author
Institution
Sponsor/funding source
Publisher

*2.Work: what the agreement refers to
Article or other creation by the author

*3.Identification of Publication in which the work will be published – e.g.:
Journal
Book
Teaching package
Many others

*4.Medium in which (a) initial publication and (b) potential future publication is authorised to take place
Website
Print
cd-rom
video
sound recording

5.Special Uses
Formats for disabled (special free-of-charge provisions are often made, eg, for the visually impaired)

6.Reuse and derivatives – further publications which make use of the content in other ways, e.g.
Teaching supplements
Translations
Anthologies
Sublicensing to others to republish all or part

*7.Copyright ownership - there are arguments both for and against the copyright being transferred to the publisher. Ultimately it may not matter, provided both publisher and author/other rightsholder have the rights they need. Jointly owned copyright tends to be a rather messy arrangement, lacking clarity about who is responsible for what. It is, however, important that all involved are absolutely clear about who is the copyright owner (in the case of a work written in the course of the author’s employment, this may legally be the university as employer).
Who has title?
Form of copyright notice to appear in the publication
Registration of the copyright (while no longer a legal requirement, under US law registration confers greater security of future protection should the need arise. Registration is not necessary elsewhere, although legal deposit may serve as evidence of copyright.)

8.Rights which may be held by the author
Moral rights (a specific cluster of rights under European law; some but not all can be waived in certain countries)
*Right to be named as author on the work
Integrity of work – right for the work not to be materially changed without your consent (including any future updates & corrections)
*Educational uses by the author
In the institution where working when written
In institution(s) where subsequently working
Distance education at present/future institution
*Posting to website (note the distinction between (closed, private) Intranet vs. (open, public) Internet; the former is much less threatening to publishers’ legitimate commercial interests)
Own site
Institutional site
Public server
*Creation of new works based on work (other books, public lectures, etc)
Payment/other rewards (e.g., royalties) where applicable
Waiver of author share of any copyright charges – an option for authors in some (but not all) countries where charges are made for copying
Reversion of rights to author (a) if the publication ceases to be commercially available or (b) rights are not used by publisher within specified period. (Note that, under US law, although the full term of copyright is now 70 years as in Europe, authors nevertheless have an opportunity to claim back rights 35-40 years after publication.)

9.Rights which may be held by the university
*Educational uses by other faculty than the author at the institution
Distance education by other faculty than the author to specified recipients (e.g. participants in particular courses)
Licensing others to make educational uses (understandably problematic for publishers of textbooks and other educational materials)
Payment (e.g. royalties) where applicable
Library uses
ILL (under existing restrictions) to users in other institutions
Preservation and provision of long-term access to own user community when on and/or off site
Archiving (although this may not make economic sense at local institution level)
Electronic reserves
Public access (publishers may be concerned about the risk of loss of revenue, though provision of public access through walk-in use is generally possible)

10.Rights which may be held by the publisher
*Credit to publication for later uses (citation to original)
*Exclusive right to publish in specified media (other than as per rights granted/retained above) – in some countries, if a medium is not explicitly specified it is not licensed.
*License others to use (sublicense)
*Enforcement of copyright (in author’s name if appropriate)
*Database storage of work

11.Rights retained by the public
*Rights of fair use/fair dealing.

*12.Representations and warranties by author
That is is the author’s original work
That the content is not illegal (but note that what is legal may vary in different jurisdictions)
That adequate written permissions have been obtained for any work which is someone else’s copyright
Indemnification - undertaking that if the above are found to be false, the author is financially liable

13.Commitment by publisher
To publish on timely basis
Reversion after period of time/conditions (see above)

14.Legal Paraphernalia
Jurisdiction – whose courts will be used in case of difference
Term – how long the agreement is for
Whose law? – whose law will be used in case of difference (NB it does not have to be the same as Jurisdiction above, though this usually makes sense)
Arbitration vs. Litigation – cheaper alternatives to going to court in case of difference