Publishing agreements

Publishing agreements

Researchers’ scientific works – books, anthologies, articles, etc. – are usually published by a publishing house. Since scientific works are usually protected by copyright, such publication can only take place with the consent of the person or persons (authors), who have produced the work by means of a personal creative effort (creativity). See the article on authorship here on Forskerportalen. In connection with the publication of scientific works, a publishing agreement is as a rule always concluded between the publisher and the authors of the scientific work.

A publishing agreement is intended to lay down the rights and obligations which publisher and authors assume towards each other in connection with the publication of the work. A publishing agreement should always be considered carefully, and it will often be appropriate to seek advice about the wording of the publishing agreement in each case.

A general outline of publishing agreements for research publications is provided in the following. Please refer to the following resources for more information on publishing agreements:

Different types of publishing agreements

There are no specific formal requirements on how to conclude a publishing agreement. The agreement may be a document called the “publishing agreement”, or “consent to publish”, etc., which the authors are asked to sign and return to the publisher. Such actual publishing agreements will often contain a detailed regulation of the rights and obligations of the parties relating to the publication of the research publication in question.

The publishing agreement may also follow from the terms and conditions for submission and publication of manuscripts, as evidenced by the publisher’s (journal’s) website. There is a general assumption that researchers are expected to know and accept such generally available terms and conditions when they choose to submit their manuscript to the journal in question.

In the absence of a separate agreement text or common terms for publishing at the publisher’s website, etc., the detailed content of the publishing agreement must be derived from the parties’ discussions on the publication of the work, possibly supplemented by the kind of assumptions that researchers and publishers have in connection with publishing such works.

Model agreements

Most publishers have developed their own publishing agreements which are not always appropriate from the perspective of the researcher. Such agreements should not be accepted at face value, especially if they contain clearly unreasonable or inappropriate provisions such as those discussed in more detail below. In assessing the reasonableness of such agreements, it may be appropriate to compare the publisher’s draft agreement with the model agreements that are available within the field.

In 2010, the Committee for the Protection of Scientific Work (UBVA), Danish Publishers and the Danish Authors’ Society laid down a model agreement for the publication of scientific and popular scientific works. You can download the agreement – in the following referred to as the UBVA agreement (2010) – here (in Danish).

This agreement replaces an earlier agreement adopted by Danish Publishers and the UBVA in 1998. The earlier agreement also included a guide on how the individual provisions of the agreement should be construed. You can download the earlier agreement and guide here.

The UBVA has also drawn up a proposal for the wording of agreements concluded between researchers and journal publishers, in which the researcher for example retains the right to publish the article online after it is printed. The agreement is accompanied by a brief article on copyright to scientific articles. You can download the agreement here.

As mentioned, it is generally a good idea to seek legal advice concerning the signing of publishing agreements.

The contents of publishing agreements

The main elements in publishing agreements for research publications are outlined below.

Transfer of copyright

Researchers own the copyright to their research publication (the scientific work). The primary purpose of the publishing agreement is for researchers to transfer this copyright in whole or in part to the publisher, so that the publisher can legally publish the work.

The proportion of the researchers’ copyright that publishers demand varies greatly. Some publishers demand that researchers transfer their copyright in its entirety (to the extent that this is possible) to the publisher, while other publishers precisely specify which part of the copyright will be transferred to the publisher (for example in terms of form of publication, field of publication, language of the publication, etc.).

In general, it is recommended that researchers only transfer that proportion of their copyright that the publisher may reasonably need, and that the transfer does not include the right to future and currently unknown forms of exploitation.

As a starting point, a publishing agreement involves an exclusive transfer of copyright to publish the work. See for example sections 3-7 of the UBVA-agreement (2010) (in Danish).

This may have significant implications for researchers in the future, for example:

  1. As a starting point, researchers waive the right to publish the scientific work in open access  or to use the material for any other purpose, such as for own teaching, unless this is otherwise expressly allowed for by the publishing agreement.
  2. Researchers waive the right to reuse parts of their work in new publications and teaching materials, unless otherwise stated in the publishing agreement. In some areas it is quite usual for researchers to reuse, for example, method descriptions or brief explanations of common phenomena in several research publications. It is therefore recommended that the publishing agreement states that the researchers have the right to re-use parts of a work in new research publications in accordance with the rules of good scientific practice – and possibly also the right to use the whole work or parts thereof in their own teaching materials, etc.
  3. If the work is to be included in an article-based PhD dissertation, the PhD student must ensure an explicit right to allow article reprinting as part of the PhD dissertation submitted to the university.

Additional obligations of the researchers

When it comes to research publications, the authors’ other obligations will especially be related to the following:

  1. Delivery of a manuscript of a certain degree of quality
  2. Delivery of third-party material (images, figures, illustrations, etc.), which must be included in the work
  3. Proofreading and possible compilation of registers, etc.

In this context, many publishers require the author to submit various warranties. It is important that the researchers are aware of the obligations that ensue; UBVA has thus seen a number of publishing agreements which include very extensive warranties.

While it is usual that researchers must guarantee that they own the copyright to their work (i.e. that they themselves have written the manuscript without plagiarising others, see for example section 2 of the UBVA agreement (2010)), and that the research that the work concerns complies with good scientific practice, some publishers also require that researchers warrant, for example:

  1. That they possess all the required rights to any third-party material (illustrations, figures, images, etc.), which are included in the work
  2. That all quotes are legal
  3. That the publication of the work will also be legal in all the countries where publication is proposed to take place. Here reference is often made to the national rules on defamation, racism, etc. – i.e. what is usually termed “the bounds of freedom of expression”: see Forskerportalen’s article on dissemination and freedom of expression.

With regard to agreements on editorial work (editorship), the UBVA has seen contracts which place excessive responsibility on editors for the contributions of the individual authors, including strict liability for ensuring that no contributor to the work in question commits plagiarism, etc.

Such warranties should always be considered carefully, as researchers risk being held personally responsible if disputes arise after publication. The UBVA has seen agreements under which the researchers must bear the publisher’s costs of handling cases of alleged irregularities of the above-mentioned nature (whether or not something is wrong with the manuscript). This is of course completely unreasonable.

By entering into a publishing agreement, the authors usually assume a certain degree of duty of loyalty towards the publisher, unless otherwise explicitly agreed. This duty of loyalty may thus apply even if it is not explicitly stated in the publishing agreement. Section 15 of the UBVA Agreement (2010) defines the duty of loyalty as follows:

“… To the extent that it competes directly with the publisher’s rights, the author shall not publish the work unchanged in its entirety or a large part thereof, including in newspapers, journals, digital networks, etc., without the permission of the publisher. Nor shall the author publish another work that competes directly with the work of this agreement and undermines the publisher’s ability to dispose of it”

This wording must be presumed to reflect the duty of loyalty that basically applies to all publishing agreements governed by Danish law.

Requirements for publishing the work

The publisher’s obligations consist primarily of publishing the work. It should be clearly stated how and when publication will take place.

With regard to the publishing of books, it may be appropriate to specify requirements for publishing quality (layout, paper quality, book binding requirements, etc.). It may also be advisable to require researchers to approve the final layout before printing.

Some publishing agreements give the publisher the right to make changes to the manuscript, including, for example, the title of a work, without the requirement that such changes be approved by the researchers. Such provisions should not normally be accepted.

Some publishing agreements leave it to the publisher to determine the details of the publication so that, as the case may be, publishing can be done by any subsidiary imprint (or perhaps a completely different publisher) other than the one the researchers expected. Such a provision may look like this: “The Publishers may publish and distribute the Work under any of its imprints”. Such a provision should not normally be accepted in agreements for the publication of scientific works. For researchers it may thus be crucial that publication takes place at a particular publishing house. Section 18 of the UBVA Agreement (2010) contains an opposite provision:

“The publisher is not entitled to transfer its rights under this agreement, unless the rights are transferred with the entire publisher or a professionally defined part thereof. The publisher remains responsible for fulfilling the agreement with the author”

Royalties

If publication is subject to the payment of royalties, this must be further specified in the agreement. Among other things, the following questions must be considered:

  1. Calculation of royalties. A “bestseller clause” can for example be agreed, so that the authors obtain a higher royalty rate if the work sells better than expected.
  2. Payment of royalties. Should an advance fee be paid? How often should royalty payments be made?
  3. Researchers’ ability to verify royalty statements

If the publishing agreement is governed by Danish law, the researchers are entitled to an annual royalty statement and to insight into the calculation of royalties, cf. section 57 of the Danish Copyright Act.

The UBVA Agreement (2010) contains a number of examples of how royalties can be regulated, see sections 24-29 of the agreement.

In the case of physical paper editions, researchers will often receive a number of free copies and may be entitled to purchase additional paper copies at a discounted price. In relation to publications in digital form, researchers have an interest in receiving a digital version of the published work.

Multiple authors

If there are multiple authors, the order of authors and the distribution of royalties for the published work must be considered.  See for example section 17 of the UBVA Agreement (2010).

When a research publication has several authors, the publisher will often require that one author undertakes to represent all of the authors in relation to the publisher (often referred to as the corresponding author). Some publishers now also demand that one of the authors warrants that the research has been conducted in accordance with good scientific practice (often referred to as guarantorship). You can read more about the different author roles in Forskerportalen’s article on authorship .

New editions of the work

If an update of the work is a possibility (e.g. a new edition of a book), the terms for this must be considered. Should the publisher or authors be able to demand that a new edition of the work be made? What happens if a co-author cannot or will not contribute? And what happens if the publisher does not wish to publish a new edition?

Section 13 of the UBVA Agreement (2010) gives an example of how this can be regulated.

Right to take proceedings

A good publishing agreement should address the rights and obligations of publishers and authors if the publication should become subject to copyright infringement. Some publishing agreements prescribe that it is the publishing house alone that should deal with such violations. Such provisions are inappropriate because it may turn out that the publisher neither can nor will intervene in violations that harm the authors.

The UBVA agreement (2010) therefore states that both publishers and authors have the right to take action in the case of copyright violations, cf. section 31 of the agreement:

“If third parties violate the copyright to the work, both the publisher and the author may take proceedings and prosecute the violation in accordance with the general rules of Danish law.”

Destruction of unsold copies

When works are published in printed form, the publisher should not be able to destroy unsold copies without first having offered the author the opportunity to collect the copies. This is regulated as follows in section 30 of the UBVA Agreement (2010):

“The publisher must inform the author before any destruction of unsold copies. Prior to destruction, the author must be given the opportunity to collect the copies he wants for free.”

About The Author

Professor, legal consultant for the UBVA