Welch Medical Library Guides: Scholarly Publishing: Publisher Contracts

Publisher Contracts

Navigating publisher contracts can be complex. This section covers the essentials to understanding your publisher contract and your author rights.

Let’s breakdown publisher contracts and copyright into 4 parts:

Parts of a Publishing Contract

Author Rights

Negotiating Tips

1. Copyright

What is copyright?

Anything you create is automatically under copyright protection from “the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device,” according to US copyright law.

You don’t need to register your work or publish it to be protected by copyright.

What exclusive rights does a copyright holder have?

The copyright holder has the right…

to reproduce the copyrighted work;
to prepare derivative works based upon the copyrighted work;
to distribute copies of the copyrighted work to the public by sale or other transfer of ownership or by rental, lease, or lending;
to perform the copyrighted work publicly and
To display the work publicly

2. Parts of a Publishing Contract

Grant of Rights – For the purpose of article publication, the author gives the publisher some rights under copyright. This can be either in a copyright transfer or copyright license

Copyright Transfer - in a copyright transfer, the author hands over their article copyright rights to the publisher, effectively making the publisher the new copyright owner of the article. Transfers include a verb that indicates that copyright is changing hands (i.e. "assign", "transfer", or "convey") and a phrase that makes clear that all rights under copyright are included (i.e. "all right, title and interest", "all copyright", or "all ownership").
Copyright License - in a copyright license, the author gives permission to the publisher to use the article in ways that would otherwise infringe copyright. Check out the Open Access LibGuide for the different types of Creative Commons Licenses that are available to protect your scholarly work.
1. Licenses can be either exclusive or non-exclusive:
  1. Exclusive licenses must be explicitly granted/stated in writing. Under an exclusive license, the licensee is the only party that can exploit the rights granted.
  2. Non-exclusive licenses allow the licensee to use the rights in question, but the copyright owner can continue to also exercise those rights and/or to license them to other parties.

This section "Journal Contracts: Key Parts" by UW Libraries was used under the license CC-BY-NC 4.0

Representations and Warranties - Including representations and warranties in a publishing contract reassures the publisher that publication of the article will not create any legal issues for the publisher.

Representations and warranties in journal publishing agreements usually ask the author to verify that for example the article is "original" and the article does not violate any privacy rights or any confidentiality or non-disclosure agreements or intellectual property law. This part of the publishing contract may ask you to confirm that your paper is "free of any third-party rights"; a third-party right is the Federal Purpose License.

The 50+ year old Federal Purpose License was updated April 2024 to allow public access to agency-designated repositories; this would challenge publishers from charging no-embargo fees to AAM deposits in federal repositories for federally funded research.

Right now, there is pressure to get federal agencies to acknowledge the Federal Purpose License into their public access plans to comply with the OSTP Public Access Memo of 2022. This way, authors maintain their right to deposit their federally funded research in federal repositories at no extra no-embargo fee and they don’t risk a signing a conflicting publisher contract that could get them sued by their publisher for lying in their contract for not disclosing that the FPL applies to their paper.

This section "Journal Contracts: Key Parts" by UW Libraries was used under the license CC-BY-NC 4.0

Retained Rights - Journal publishing agreements often include language that specifies the rights the article's author can continue to exercise after the agreement has been signed. These may be referred to as "Rights Retained" or "Permitted Uses" by the author.

In situations where copyright has been transferred or exclusively licensed to the publisher, this section represents the publisher's commitment to license rights back to the author on a non-exclusive basis.

This section "Journal Contracts: Key Parts" by UW Libraries was used under the license CC-BY-NC 4.0

Additional Terms - Some commonly included additional terms include:

Data publication and licensing commitments
Terms specific to works sponsored by government grants, often creating exceptions to the agreement allowing the author to comply with funder requirements

This section "Journal Contracts: Key Parts" by UW Libraries was used under the license CC-BY-NC 4.0

3. Author Rights

Deciding to sign your publishing contract is a big step in the publication process. Publishing contracts can hugely impact your control of and ability to use your article over a long timeframe. Read the agreement carefully and consider its implications before signing - having not fully read or understood a contract will not absolve you of your obligation to comply with it.

Here are some Potential Future Uses to Consider before deciding to sign your publishing contract which I consider your Author Rights:

Using the article in the classroom and distributing electronic or paper copies to students
Making the article available on an electronic reserve or enrollment-restricted course management system, such as Canvas
Republishing the article as a book chapter
Using charts or figures from the article in a subsequent publication
Including the article (or an adapted or revised version of the article) in your thesis or dissertation
Depositing the article in a disciplinary repository or pre-print server (i.e. arXiv, bioRxiv, etc.)
Posting the article on your personal website or university profile
Posting the article on an academic networking site (i.e. Mendeley, ResearchGate, etc.) (publishing contracts often refer to these types of sites as "Scholarly Collaboration Networks")

The bottom line is:

Transferring all copyrights means authors no longer own their work or the right to control where or how it appears; and
Transferring all copyrights may result in a publisher reusing an author's works without permission or notice.

This section "Journal Contracts: Deciding to Sign" by UW Libraries was used under the license CC-BY-NC 4.0

4. Negotiating Tips

The answer is Yes! Often times, journal publishers are open to negotiation. Although journal publishers are likely to to push for a contract that favors them and considering the time and effort that they have already invested in your work, publishers will likely go ahead with your publication.

To start negotiations though, show that you are reviewing their proposed agreement and that you would like further discussion on it. Ideally, negotiating face-to-face is best, but if you have to negotiate over the telephone, be sure to document any verbal conversations in writing to avoid any misunderstandings.

This section "Journal Contracts: Negotiating" by UW Libraries was used under the license CC-BY-NC 4.0

When and if the publisher gets back to you and agrees with your proposed changes, it's important that you carefully review the modified version of the agreement to doublecheck that it agrees with your original requests and to approve any alternate language used in your agreement. If any of the proposed changes were handwritten, both parties should agree to initial all handwritten changes when signing the agreement. Keep a copy of the signed agreement and of correspondence that reflects your and the publisher's understanding of any modifications.

If on the other hand, the publisher pushes back or disagrees with your proposed changes, you should continue the discussion. For example, if the publisher is unwilling to make the requested changes, you may want to explain the importance of these changes and the future impact of your work . Asking the publisher for an explanation for why they cannot commit/agree to your proposed terms, may prompt them to come up with a reciprocal compromise that satisfies both parties.

This section "Journal Contracts: Negotiating" by UW Libraries was used under the license CC-BY-NC 4.0

Incorporate an Addendum - Adding an addendum is the way to suggest changes to a publishing contract. An addendum is a document that, when signed by both parties, changes an agreement without either party editing the original text. When deciding to sign the agreement with addendum, sign the original agreement put out by the publisher, indicating "Subject to Attached Addendum" next to your signature, and return it to the publisher for their review.

Directly Request Changes - Proposed changes can also be suggested by asking that specific contract language be changed or by directly marking up the agreement with your changes.

This section "Journal Contracts: Negotiating" by UW Libraries was used under the license CC-BY-NC 4.0

These are addenda created to assist authors in safe-keeping key rights to their scholarly works:

SPARC Author Addendum
SPARC's Author Addendum provides that, in addition to any rights retained by the author in the original agreement, the author has the right to reproduce and distribute the article, create other works based on or related to it, and to authorize others to use it on a non-commercial basis

Scholar’s Copyright Addendum Engine
This Addendum Engine offers an addendum generator that will mix and match language from the SPARC addendum and model copyright agreements to create a customized document

This section "Journal Contracts: Negotiating" by UW Libraries was used under the license CC-BY-NC 4.0