When publishing a scholarly work, the rights of use with respect to the publication are agreed on with the publisher. When so doing, authors frequently enter into a copyright agreement, for example by concluding a publishing contract (Copyright Transfer Agreement, Licence to Publish) or consenting to the publisher's general terms and conditions of business (GBT).

What rights are granted in a publishing contract, and what rights are retained by the author?

The decisive factor is the wording of the publishing contract, and freedom of contract applies. Partial rights under copyright can be granted individually. Contractual provisions take priority over the non-mandatory statutory provisions. A distinction must be made between the following cases:

  • If copyright is assigned, the author abandons his rights to the benefit of the publisher. For example, if the contract states: “Copyright is granted without restriction in space, time or content.”
  • If copyright is licensed, the author retains his copyright but grants user rights.
  • If an exclusive licence is granted, the author undertakes not to grant a licence to the work elsewhere.
  • If the author only grants the publisher a simple licence, he is entitled to grant further (simple) licences to other persons or organisations.

Limitations under copyright law apply even if the corresponding rights are transferred. One example is the limitation for internal use (Art. 19 Para. 1 c, Copyright Act); however, this is subject to various preconditions.

Unlike former German law, Swiss law does not forbid the grant of rights with respect to unknown types of use. If “all copyright” was granted before 1995, this also covered the now usual online rights.

Contractual provisions on the use of the accepted manuscript or the publisher’s pdf are valid, as are provisions that permit the author to publish the work on his personal website. However, a repository is not regarded as the author’s personal website.

If the author is entitled to publish his work elsewhere, and if there are no provisions concerning the format, the author’s version (accepted manuscript) can certainly be used. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar legislation. However, there is no established judicial practice on the question of format.

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 (legally non-binding) 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

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".

Model Clause

A model clause that need not be integrated within the publishing contract document but which can instead also be signed separately as an addendum to the contract (if this is not explicitly excluded by the publishing contract) could read as follows:

  1. “This addendum supplements the publishing contract between the parties and takes priority over any provisions to the contrary in the publishing contract.
  2. After expiry of six months (in the case of entire books, after expiry of three years) after publication, the author shall be entitled to make this article accessible generally or empower third parties to do so using the internal networks of educational and research institutions, institutional repositories and his personal Internet site.
  3. If the publisher assigns the rights to the author's work to a third party, the publisher shall ensure that the third party complies with the obligations resulting from the present supplement to the publishing contract”.

Another strategy that is likewise already covered by the practice of a number of publishers nowadays is not to agree to a waiting period but instead to lay down that it is not the publisher’s pdf but rather merely an author’s version without publisher’s logo and without the publisher’s page numbers (accepted manuscript) that the author is entitled to make generally accessible.

As a matter of principle, the publisher must consent to these amendments if they are to apply. The mere fact that the publisher has published the work is doubtless insufficient to construe the publisher’s consent to an addendum to the contract that the publisher has never expressly accepted. The author bears the burden of proof that the publisher has given its consent to the corresponding addendum to the contract (Art. 8, Swiss Civil Code).

Links for further reading

Please note that the content of this section is intended for information purposes only and does not constitute legal advice.