Publishing Agreements

Publishing Agreements

A publishing agreement is a special contract with no requirements as to form that is usually concluded between an author and a publisher when publishing a contribution in a scholarly journal, an edited collection, or a monograph. It regulates the extent of the rights of use in the work that are granted to the publisher. 

In Germany, publishing agreements are governed by Sections 31–44 of the German Copyright Act (UrhG) and by the German Publishing Act (VerlG). Pursuant to Section 8 of the Publishing Act, an exclusive right of use is granted to the publisher unless otherwise specified. This right is known as the Verlagsrecht (publisher’s right). Irrespective of the rights granted to the publisher in the publishing agreement, Section 38 of the German Copyright Act gives authors of scientific contributions that result from research at least half of which was publicly funded and that appear in a collection that is published periodically at least twice a year the right to make the accepted manuscript version of the works available to the public in a repository 12 months after first publication. The right to self-archive the works applies even if the publishers were granted exclusive rights of use (Brehm & Rücknagel, 2021).

In Austria, publishing agreements are considered to be a separate contract type and are regulated in Sections 1172 and seq. of the Austrian Civil Code (ABGB). However, the most important provisions applicable to publishing agreements are laid down in the Austrian Copyright Act (UrhG). Sections 23 and 24 and Sections 26–37 UrhG are particularly relevant. Under Section 1172 of the Austrian Civil Code, the author, or their legal successor, undertakes to entrust the work to a publisher for reproduction and distribution on its own account. In return, the publisher undertakes to reproduce and distribute the work. Unless otherwise agreed, it can be assumed that a right of use in the work pursuant to Section 26 UrhG has been granted to the publisher, and that this right is therefore exclusive (see Walter, 2008, p. 820 and seq.). Further information about the legal situation in Austria in this regard can be found on the website of the Open Science Network Austria (OANA).

In Switzerland, the conclusion of a publishing agreement is not subject to a certain form (Art. 380 and seq. of the Swiss Code of Obligations, OR). An email exchange or the sending of the manuscript by the author to the publisher with the request to publish it are deemed legally to be a publishing contract if the publisher publishes, or at least promises to publish, the work. Under the Swiss Copyright Act (CopA), exceptions to copyright apply even if the rights in question have been granted to a third party. One example is the exception to copyright in favour of use in enterprises (Art. 19(1) point c CopA). However, this exception is subject to various preconditions. The concept of prohibiting the granting of rights in respect of unknown rights of use is unknown in Swiss law. If "all copyrights " were granted before 1995, the now customary online rights are also affected. Further information on publishing agreements and legal questions in Switzerland can be found on the website of the Main Library of the University of Zurich.

In the case of agreements with publishers outside Germany, the same applies as in the case of German publishers. Should the agreements be available only in English, care must be taken not to grant the publisher exclusive rights.

Video on Scientists' and Scholars' Self-Archiving Rights

Video on Scientists' and Scholars' Self-Archiving Rights. [German] (CC BY 3.0 DE)
Source: Brehm, E. (2021). Zweitveröffentlichungsrecht für Wissenschaftler*innen, open-access.network. https://doi.org/10.5446/49536


Practical Tip

Here you can find a German handout of the Communication, Information, Media Center (KIM) of the University of Konstanz on the topic of self-archiving as well as a German information page of the BMBF on the topic of self-archiving rights.

Practical Tip

Find further legal information regarding Austria here: Open Science Network Austria (OANA) (German).

Depending on the publisher and the journal, the remaining rights may be more or less extensive or limited, although many publishers now expressly allow their authors to self-archive their contributions in a repository. An overview of publishers’ open access archiving policies can be found in the  Sherpa Romeo database.

A fee may be agreed in the publishing agreement, and it is tacitly deemed to have been agreed if the delivery of a manuscript can usually be expected only on payment of a fee. However, a fee is not one of the essential contractual obligations – the so-called cardinal obligations – under the publishing agreement. Although publishing law does not contain any provisions about rights other than reproduction and distribution, the publisher is, as a rule, also granted other exclusive rights of use (e.g. the right to make the work available to the public, which applies to publications on the Internet).

The wording in the publishing agreement is decisive – and here contractual freedom applies. The various rights of use can be granted individually. Contractual provisions take precedence over dispositive statutory provisions. The following cases must be distinguished:

  • In Germany (Section 29 UrhG) and Austria (Section 23 UrhG) copyright is not transferrable.
  • In Switzerland, copyright is transferrable (Art. 16 CopA). Authors may transfer their rights to a publisher. Example: In the publishing agreement, “the author assigns  copyright [the publisher] without limitation of space, time, or content".

Authors retain copyright but grant rights of use to third parties.

  • Granting of an exclusive licence/exclusive rights of use: Authors undertake not to grant any other licences for the work in question. Example: "The author grants the publisher the exclusive right to reproduce and distribute the work (the publisher’s right) without limitation of space and content for the duration of the statutory copyright."
  • Granting of a non-exclusive licence/non-exclusive rights of use: Authors may grant other persons or organisations further non-exclusive licences/non-exclusive rights of use. Example: “For an online publication of the work, the publisher is granted a non-exclusive right of use without an obligation of use .”

Possibilities of Contractually Securing the Right to Self-Archive Works in Open Access Repositories

In the case of publishing agreements concluded in the past, the question arises as to what provisions the agreement contains with regard to the author’s right to make the work available to the public online in parallel with publication. By contrast, when concluding new publishing agreements, there are various ways of contractually securing this right. Some authors who publish their articles in fee-based journals but who nonetheless want to retain the right to make the work available in open access in parallel with publication, cross out certain passages in the publishing agreement before signing it. Another possibility is to supplement the publishing agreement to be signed with addenda or text passages in order to secure one’s rights to make the work available in open access. Many research performing organisations now expressly expect this. For example, the University of Zurich requires its researchers to obtain a legal guarantee from the publisher “to make the complete work accessible in ZORA [the institutional repository], if applicable after an embargo period.”

 

Crossing Out Words in the Publishing Agreement

Authors can amend publishing agreements that restrict their right to self-archive the work in a repository by clearly crossing out wording such as exclusive transfer of all rights or other restrictive formulations, for example exclusive rights of use or exploitation rights. It should be noted, in particular, that the term exclusive rights grants the publisher a legal position that, as a rule, excludes the authors from exploiting the works themselves. In an accompanying letter, authors should draw attention to the changes they have made to the contract. Should a contract be available only in electronic form, the words can be crossed out in the print copy. If only digital agreement to the terms of the contract is provided for, authors can request the publisher to make the contract available in print form.

 

Addenda

As an alternative to crossing out words, authors can attach an addendum to the publishing agreement in order to retain a non-exclusive right to deposit the work in an online repository. To acquire legal validity, this addendum must be countersigned by the publisher.

The most well-known addendum is the SPARC Author's Addendum. It was developed by the Scholarly Publishing and Academic Resources Coalition (SPARC), an alliance of libraries in the USA and Canada that works to encourage the development of new models of scholarly 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. Via the Scholar’s Copyright Addendum Engine provided by Science Commons and SPARC, authors can automatically generate an addendum as required in one of three variants: Access – Reuse, Delayed Access, or Immediate Access. Access – Reuse means that the author retains sufficient rights to make the work available to the public under a Creative Commons Attribution NonCommercial (CC BY-NC) licence in addition to publishing it with a publisher. Under the Delayed Access model, the author has the right to make their final version of the article (author’s accepted manuscript, AAM) available to the public online immediately, but they may not make the publisher’s version available until six months after the date of publication. By contrast, the Immediate Access option gives the author the right to make both the publisher’s version and the author’s accepted manuscript version available to the public online immediately.

Examples of addenda

"The publisher agrees that the author shall retain the non-exclusive right to deposit a digital copy of the document before/during/after publication by the publisher on an open access academic non-profit server for an unlimited period.

The author undertakes to cite the original document on the academic non-profit server."

or

"For an online publication of the work, the publisher is granted a non-exclusive right of use without an obligation of use. The author is free to make the work available to the public online in PDF form via their personal website, an institutional server, or a suitable disciplinary repository."

or (in jurisdictions where copyright is transferrable)

"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."

A further example of an addendum is provided by MIT Libraries: Managing your Copyright.

However, authors must be aware of the consequences when they retain only non-exclusive rights of use. This prevents them from making the contribution available under an open access licence, as the decision on licensing remains with the publisher. It is therefore preferable not to grant exclusive rights of use to the publisher in the first place.

References

  • Brehm, E., & Rücknagel, J. (2021). Zweitveröffentlichungsrecht für Wissenschaftler*innen. https://doi.org/10.5446/51789
  • Walter, M. M. (2008). Österreichisches Urheberrecht: Handbuch. 1. Teil: Materielles Urheberrecht, Leistungsschutzrecht und Urhebervertragsrecht. Verlag Medien & Recht.

Further Reading                  

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