Understanding Publishing Agreements
Authors and publishers will generally have a publishing agreement (sometimes referred to as an author or licence agreement) in place when a work is published.
Publishing agreements vary between publishers and will also vary depending on whether or not the work is being published as a book, book chapter, journal article or conference paper. Some publishers do not use publishing agreements, in which case, they only have the right to publish the work for the purpose it was submitted. For example, if an author submits an article to a particular journal and there is no agreement in place, the publisher can only publish the article in the issue for which it was submitted. They would not be able to re-publish the article in an annual collection of popular articles without the permission of the author.
The agreement will generally cover information such as when the work will be published; how it will published (in print or online or both); how many copies will be made available etc; if the author is entitled to any royalties, how they will be shared between the author and publisher, when they will be paid etc. The agreement will also address how copyright in the work will be managed.
There are a number of ways in which copyright can be dealt with under an agreement:
Author assigns copyright to the publisher
The author grants all their rights as author and copyright owner to the publisher. This means that if the author wants to do anything with the work, (e.g. deposit it in an open access repository) make it available on their own website, provide copies to colleagues, they will need to seek permission from the publisher. In some cases, the publisher may grant some rights back to the author that will allow them to do certain actions such as those described above. Assignment of copyright is generally permanent unless the agreement indicates otherwise. If the author assigns copyright to the publisher; the publisher can also, at their discretion, enter into agreements with other parties to use the work. For example, the publisher could license your material so that it can be included in a subscription database or arrange for a translation to be made. It is common for authors to assign copyright in journal articles to the journal or publisher. Generally, when publishing a book, the author will grant the publisher a licence.
Author grants publisher an exclusive licence
The author gives the publisher certain rights over their material for the term of the agreement. These rights might include the right to publish, communicate and distribute online and to sublicense. These rights are granted only to this publisher. While the agreement is in place, the author cannot grant the same rights to anyone else. How long the agreement lasts can vary, some agreements can be indefinite or perpetual. If the licence includes the right to sublicense, the publisher can grant the rights given to them to a third party, for example to allow another publisher to publish the work in another territory.
Author grants publisher a non-exclusive licence
Similar to granting an exclusive licence to the publisher, but the author can also grant the same rights to another publisher or party. Authors must have all the necessary rights to publish their work and it is usually a requirement of the agreement that they warrant this, i.e. guarantee it. Some publishers include an indemnity clause – which means that the author is held legally responsible if the publisher is sued for breach of copyright.
Authors are generally asked to warrant that:
- They created the work (and therefore they own copyright).
- They are sole author of the work. If they wrote the material with co-authors, all authors are identified in the agreement and are signatories to it. Alternatively, they may be separate agreements for each author.
- If they have included third party copyright material (i.e. created by someone else), the author has the necessary permission from the copyright owner to include their material.
The agreement will also detail how long the agreement lasts and whether or not it can be terminated. A perpetual agreement will last indefinitely until it is terminated. There should be a process explained in the agreement about how the agreement can be terminated if either the author or the publisher chooses. If the agreement is irrevocable, this means it can not be terminated. An irrevocable perpetual agreement means that the agreement is permanent and will last indefinitely. Some agreements include a term and expire at the end of the term. Once the agreement has expired, the author is free to enter into another agreement with another party or publisher.