A publishing agreement is a special, non-standardised contract which is usually concluded between the author and the publisher with respect to the publication of an article in a journal or a collective volume or when publishing a monograph. The agreement regulates the extent to which rights of use in the work are granted to the publisher.

The publishing agreement is one of the oldest contract types. In Austria it is regulated as a separate contract type in Sections [§§] 1172 ff. of the Austrian Civil Code (ABGB). However, the most important provisions applicable to publishing agreements are laid down in the Austrian Copyright Law (UrhG); Sections 23 and 24 and Sections 26 - 37 of the UrhG are of particular relevance in this regard. Pursuant to Section 1172 ABGB, the author or his legal successor undertakes to allow the publisher to reproduce and distribute the work on its own account. In return, the publisher undertakes to reproduce and distribute the work. Unless otherwise agreed, it can be assumed that pursuant to Section 26 of the UrhG, a right to use has been granted to the publisher and that this right is, therefore, exclusive. (See: Walter, Österreichisches Urheberrecht, Handbuch [Austrian Copyright Law, Handbook], Part 1, 1st edition. 2008, p. 820ff).

Just how extensive the rights retained by the author are, depends on the journal or publisher in question. However, many publishers now explicitly permit their authors to self-archive their work in a document server. The SHERPA/RoMEO Listings provide an overview of publishers' self-archiving policies.

Ways of contractually asserting the right to self-archive online

With regard to already existing publishing agreements, it is a question of determining what provisions they contain with respect to secondary electronic distribution. However, when concluding new agreements there are a number of ways in which the author can contractually assert the right to self-archive online in parallel with publication. Some authors who publish their articles in subscription-based journals, but who still wish to retain the right to parallel Open Access self-archiving, have adopted the practice of crossing out certain words in the contract before signing it. Alternatively, the author can supplement the agreement with an addendum or add a supplementary clause providing for the retention of the right to provide Open Access to the work. Many universities expressly expect scholars to ensure that they retain the right to self-archive. For example, the University of Zurich calls on its researchers "to retain in their Copyright Transfer Agreements rights which are essential for depositing documents in the Zurich Open Repository and Archive (ZORA)".

Crossing out words in the publishing agreement

Authors can amend publishing agreements which restrict their rights to deposit their work in a document server by crossing out words such as "exclusive" assignment "of all" rights and other restrictive phrases. Such alterations should be mentioned in a covering letter submitted with the agreement.

Author addenda

As an alternative to crossing out restrictive wording, some authors enclose an addendum with the contract which provides for the retention of a non-exclusive right to deposit the work in a not-for-profit document server. To have legal effect this addendum must be countersigned by the publisher.

The most well-known and indeed the most widely-acclaimed addendum is the SPARC Author Addendum. It was developed by the Scholarly Publishing and Academic Resources Coalition (SPARC), an alliance of libraries in the USA whose aim is to stimulate “the emergence of new scholarly communication models that expand the dissemination of scholarly research and reduce financial pressures on libraries”. The Addendum consists of two parts: the addendum itself and instructions for use. Using Science Commons' and SPARC's Copyright Addendum Engine, authors can automatically generate an addendum in the variations "Access - Reuse", "Delayed Access" or "Immediate Access". Access - Reuse means that the author retains sufficient rights to license the article under a Creative Commons Non-Commercial licence or a similar licence in addition to publishing it with a publisher. Under the Delayed Access model, the author retains sufficient rights to post the peer-reviewed and edited version of the article online immediately, but cannot self-archive the publisher's version until six months after the date of publication. Under the terms of the Immediate Access addendum, on the other hand, both the author's version and the publisher's version may be made openly accessible online immediately after publication.

Other examples of addenda

  • MIT Libraries: Managing your Copyright

Examples of supplementary clauses

"The Publisher agrees to the retention by the author of the non-exclusive right to deposit a digital copy of the document in a publicly accessible not-for-profit academic server for an unlimited period of time prior to/during/after publication by the publisher.
2. The Author undertakes to cite the original document in the academic not-for-profit server.”

or

"The Publisher is granted a non-exclusive right of use in respect of the online publication of the work without the obligation to make use of this right. The Author is entitled to make a PDF version of the work publicly accessible online via his/her personal website, an institutional server or a suitable subject-based repository once it has appeared in book form."

or

"I hereby declare that I do not wish to assign the exclusive copyright to (name of publisher) but reserve the right to publish the article in full on an open access platform".

Links for further reading

Adaptation of content to Austrian law: Dipl.-Jur. Seyavash Amini
(Please note that the content provided here is intended for information purposes only and does not constitute legal advice.)