Dealing with a publisher may be intimidating, but a little work at the beginning of the publishing journey can eliminate work later. A publication agreement spells out what rights are being requested via transfer or license from the copyright holder to the publisher. The rights granted to a publisher can impact your future rights in your work. If you would like to distribute copies of your work or even reuse it as part of future research, instruction, or professional development, then you may need to negotiate with your publisher. To get ready for those negotiations, read on!
#1 – Educate yourself
Knowing your rights as an author under U.S. copyright law can help you understand the strength of your position when negotiating your publication agreement. The bundle of rights encompassed by the word “copyright” goes far beyond just making copies of a work and includes the rights to: reproduce the work, prepare derivative works, distribute the work, publicly perform the work, and publicly display the work. To get educated and know your rights, we recommend starting with the Copyright Basics and Author’s Rights pages of our website. They will give you an overview of what copyright is and is not and provide links to additional information.
#2 – Know what you want
The second step is knowing what rights you would like to keep. Many publishers prefer a complete transfer of copyright or an exclusive license. This allows the publisher to use the work however they deem necessary for publication. Do you want to share your work when teaching courses? Do you want to retain the right to translate your work into other languages, or turn it into a movie? A copyright transfer means that the author, now former copyright holder, may be contractually bound in how they may or may not reuse the work. Additionally, they may not be able to use the work without a statutory exception or permission from the publisher. Think about how you might use your work in the future, and what rights you should keep to allow those activities. Then, move on to the next step.
#3 – Read your contract
Read your publishing agreement. While there are any number of variations on publication rights, there are some that publishers typically use. The three examples below are prevalent among academic publishers. They are: (i) a complete transfer of copyright to the publisher; (ii) a complete transfer of copyright to the publisher, with an immediate license granted to the author; and (iii) a license given to the publisher, with the author retaining copyright.
3A – Transfer of Copyright
This is the most restrictive publishing agreement: You give up your copyright entirely. The American Medical Association (AMA) requests this type of transfer in a publishing agreement for their journals and newsletters. The agreement transfers the copyright in a work, in its entirety, to the AMA using the following language:
I hereby transfer, assign, or otherwise convey all copyright ownership, including any and all rights incidental thereto, exclusively to the AMA….
After signing such an agreement, you would be very limited in what you could do with your work. You would not be able to make copies of your work for teaching or give a reading from your work without permission from the publisher or a statutory copyright exemption.
3B – Transfer of Copyright, with License to Author
Some publication agreements transfer copyright in its entirety to the publisher and immediately grant the author limited license(s) to use the work in specific ways. The American Library Association (ALA) uses this model in a Copyright Assignment Agreement. After using language similar to that in 3A to obtain full copyright from the author, the ALA goes on to provide the author a limited license:
Publisher hereby grants Author a royalty-free, limited license for the following purposes, provided the Work is always identified as having first been published by Publisher:
- The right to make and distribute copies of all or part of the Work for use in teaching; …
- The right to make oral presentations of material from the Work; …
If the uses allowed by the publication agreement cover all the ways you foresee using your work, then this agreement may work for you.
3C – Publisher Receives a License, Author Retains Copyright
If the language in your publishing agreement isn’t asking for a complete copyright transfer, it is likely asking you to give the publisher a license. The Journal of Machine Learning Research (JMLR) requests a license in order to publish accepted articles in the journal. The pertinent language in their “Nonexclusive Publication Agreement” is below:
…we need from every author whose work is to appear in JMLR certain nonexclusive licenses…. You hereby give to MIT Press the right to be the first publisher of the article in print form…. You hereby give to the Sponsor the right to be the first publisher of the article in electronic form.
MIT Press is asking for a nonexclusive license, which means that you can exercise your rights as copyright owner without asking for permission from JMLR. Be prepared to inform any subsequent publishers about prior publications.
#4 – Negotiations
Based on the type of publication agreement you received, you may have to adjust your expectations of what can be negotiated. A publisher requesting a copyright transfer is less likely to allow an author to keep copyright and grant the publisher a limited license. When setting your expectations, it may be helpful to ask others who have worked with your publisher about their experiences. This is particularly true if they tried, successfully or not, to negotiate their agreement. Some Universities have created resources to help authors negotiate their rights. In particular, the Universities of the Big 10 Academic Alliance have created an Addendum that authors can use when negotiating with their publisher. This addendum works to preserve rights that academic authors commonly wish to keep, all of which look towards removing restrictions from the flow of information and allowing a freer exchange of ideas.
#5 – Make all edits/changes in writing
Whenever copyright is transferred, it must be in writing and signed. One small exception is that a nonexclusive license does not require a signature. In addition, it is recommended that you keep records of your negotiations with the publisher. Note the date you send your request for modification, how you send it (email, postal service, inter-office mail), when you get a response, and of course what the response is. An email will fulfill the requirement for a writing, so be sure to always review your emails before you hit “send”. If you orally negotiate a change in your publication agreement, get those changes in writing. Take extensive notes, summarize your notes in an email, and send it to the publisher with a request that they confirm the information is correct.
The opportunity to negotiate is always available. The publisher may not agree to all of your requests, but asking can ensure that you retain important rights in your work and save you from hassle down the road. Knowing your rights, and which of those rights a publisher is requesting, can help assess a publication agreement and determine what changes, if any, you would like to make. Taking copious notes, and always getting any changes to a publication agreement in writing, will make your negotiations enforceable and truly protect your ability to use your work.
If there is any confusion over what a publication agreement is requesting, check out Phrases to Look for in Publisher Copyright Agreement Forms. For questions on your rights or your publication agreement, feel free to reach out to the Copyright Resources Center by posting a comment here on the blog, tweeting at us (@OSUCopyright), or sending us an email.
Have you negotiated a publication agreement? Were you successful in getting the changes you requested? Let us know what your experience was like by leaving us a comment!
By Marley C. Nelson, Rights Management Specialist, and Sandra A. Enimil, Head of the Copyright Resources Center, The Ohio State University Libraries.
 A nonexclusive license is a contract that allows a copyright owner to grant another party the ability to exercise one of the bundle of rights contained in copyright, while retaining the ability to simultaneously exercise that right. These licenses are at times given for a limited length of time. An exclusive license grants another party the ability to exercise one or all of the rights contained in copyright, but does not allow the copyright owner to simultaneously exercise those rights. An unlimited exclusive license has little, aside from its name, to distinguish it from a full transfer of copyright.