A publishing agreement is a special type of informal contract that is concluded as a rule between an author and a publisher when publishing a monograph or a contribution in a journal or an edited volume. A contract is referred to as a “publishing agreement” when the obligation of the author to make a work of literature or musical art available to the publisher for the purposes of reproduction and distribution is juxtaposed with the obligation of the publisher to reproduce and distribute for its own account the work that is made available. In Germany, publishing agreements are governed by the German Copyright Act (UrhG §§31-44) and the German Publishing Act (VerlG). Under Section 8 of the Publishing Act (§8 VerlG), an exclusive right of use is granted unless otherwise specified in the agreement. This right is known as the Verlagsrecht (publisher’s right). A fee may be agreed in the publishing agreement, and is deemed to have been tacitly agreed if the delivery of a manuscript can normally be expected only against payment of a fee. However, a fee is not one of the material obligations in the publishing agreement. Although the Publishing Act does not contain provisions about rights other than reproduction and distribution, publishers are, as a rule, also granted other exclusive rights of use (for example the right to make the work available to the public, which applies to online publications).

Depending on the publisher and the journal, the rights retained by the author may be broad or restricted, although many publishers now expressly allow their authors to self-archive in an OA repository. The SHERPA/RoMEO listings provide an overview of publishers’ self-archiving policies.

Possibilities of contractually securing the right to self-archive in an OA repository

In the case of agreements concluded in the past, the question arises as to what provisions regarding electronic secondary distribution are contained in the agreement. When concluding new publishing agreements, on the other hand, there are various ways of contractually securing a right to self-archive the work in an OA repository. Some authors who publish their works in subscription-based journals, but who nonetheless wish to reserve a right to self-archive them, have adopted the practice of striking through certain words before they sign the publishing agreement. Another possibility is to supplement the agreement with a separate addendum, or to insert a supplementary clause, in order to secure the right to make the work available in OA. This is something that many academic institutions expect of their researchers. For example, the University of Zurich requests its researchers "to retain critical rights in their copyright transfer agreements, in order to enable self-archiving in ZORA".

Strike-throughs in the publishing agreement

Some authors modify publishing agreements that restrict their rights to deposit their publications in a repository by clearly striking through terms such as exclusive assignment of all rights and other restrictive wording. It is important to note that the term exclusive rights grants the publisher a legal position that frequently excludes the author from exploiting the work him- or herself. An accompanying letter should draw attention to the amendments. Should you have only an electronic version of the agreement, you can strike through the terms after you print it. If only electronic consent to the terms of the agreement is provided for, authors can request the publisher to make a printed version of the agreement available.

Addenda

As an alternative to striking through terms, authors can attach an appropriate addendum to the publishing agreement in order to reserve a non-exclusive right to self-archive the work in an online repository. To be valid, this addendum must be countersigned by the publisher.

The most well-know addendum is the SPARC Author's Addendum. It was developed by the Scholarly Publishing and Academic Resources Coalition (SPARC), an  alliance of academic and research libraries whose aim is to encourage the development of new models of communication that increase the dissemination of scholarly literature and reduce the financial pressure on libraries. The addendum comprises two parts: the actual addendum and instructions for use. By means of the Science Commons/SPARC Copyright Addendum Engine, authors can automatically generate an addendum of their choice in the variants Access – Reuse, Delayed Access, or Immediate Access. “Access – Reuse” means that the author retains sufficient rights to make the article available under a Creative Commons Attribution Non-Commercial (CC BY-NC) licence, or another comparable licence, in addition to publication with a publisher. Under the “Delayed-Access” model the author has the right to post the author’s version (final draft post-refereeing) online immediately, but cannot make the publisher’s version available to the public until six months after the date of publication. By contrast, “Immediate Access” gives the author the right to post both the publisher’s version and the author’s version online immediately after publication.

Other examples of addenda

Examples of supplementary clauses

“The Publisher agrees that the Author shall retain the non-exclusive right to deposit for an unlimited period of time a digital copy of the contribution in a publicly accessible scholarly non-profit repository before/during/after publication by the Publisher.
2. The Author undertakes to cite the original contribution in the scholarly non-profit repository."

or

“The Publisher shall be granted a non-exclusive right of use in respect of the online publication of the work, with no obligation to use that right. At the time of publication in book format, the author shall be free to make the work available to the public free of charge as a PDF on the internet via his/her homepage, an institutional repository, or a suitable disciplinary repository.”

In agreements with publishers in the UK or the USA, the following clause could be used:

“I hereby declare that I do not wish to transfer full copyright to (name of the publisher), but reserve the right to self-archive the article in full in an open access repository.”

Authors should, however, bear in mind that these clauses merely enable them to retain non-exclusive rights of use. This prevents them from placing the contributions under an OA licence. Because the publisher holds the exclusive right, only the publisher can take decisions on licensing. It is therefore preferable not to grant publishers exclusive rights in the first place.

If the publisher does not wish to accept the strike-throughs or amendments, the only option that authors have is to threaten that they will not conclude an agreement with the publisher. Authors must be aware that, for publishers, the publication of books and articles is an economic activity: publishers make money from publishing. Therefore, the threat to publish with another publisher, or to only make the work publicly available in digital form in a repository, can often persuade publishers to drop their objections.

Publishing agreements with foreign publishers

In principle, what applies to publishing agreements with German publishers applies also to agreements with foreign publishers. Should the agreements be available only in English, authors should take care to ensure that they do not to grant the publisher any exclusive rights

Links for further reading

Please note that the content presented here is provided for information purposes only and does not constitute legal advice.