- Email: [email protected]
Rights and Publishing Contracts
Chapter 17
Rights and Publishing Contracts: What Authors Need to Know Melissa Levine, JD1, Karen Kost2 1Copyrights 2Health
Office, University Library, University of Michigan, Ann Arbor, MI, United States; Information Technology and Services, University of Michigan, Ann Arbor, MI, United States
Copyright scholar Jessica Litman describes copyright law, which determines who gets to control works of scholarship like academic papers and textbooks, as “peculiarly counterintuitive,” completely baffling to lay people, and designed by copyright lawyers for copyright lawyers [1]. Unfortunately, most physicians and researchers do not have a copyright lawyer on hand to help them review their publishing agreements and make decisions about permissions and licensing. The following chapter provides a brief overview for academic authors to help them understand the basic rules of copyright and how to understand and negotiate their publishing contracts.
COPYRIGHT The Statute of Anne was passed in England in 1710. Considered the first copyright statute, the full title of the law was “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.” From around 1440 when Johannes Gutenberg invented the printing press, the number of printing presses increased rapidly. Along with the growing number of books, more people were literate. This in turn raised concerns by governments, authors, and publishers about unregulated copying of books. This led to the development of intellectual property rights by the time of the Statute of Anne. From its earliest concept, copyright law today has grown to address the rights and ownership of not only written materials but also other types of creative works including music, choreography, films, visual arts such as photographs, architectural works, software, and more. US copyright law does not protect ideas, facts, titles, data, or useful articles, the latter of which is protected by patent laws. The United States Constitution deals with rights of the author in Article 1, Section 8, Clause 8, known as the Copyright Clause, stating that the US Medical and Scientific Publishing. https://doi.org/10.1016/B978-0-12-809969-8.00017-6 Copyright © 2018 The Regents of the University of Michigan.
157
158 PART | III Legal and Ethical Issues
FIGURE 17.1 Photo of copyright clause from the United States Constitution.
Congress shall have the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Fig. 17.1). This represents the foundation for US intellectual property law, specifically that having to do with patents and copyright. The term of copyright protection generally begins from the moment of creation and continues for the life of the author, plus 70 years. Copyright protection is automatic; it is not necessary to register a work with the US Copyright Office to be eligible for copyright protection. However, there are legal benefits to registration and most publishers will register your work in your name as the author or in their name as publisher, depending on the terms of your contract. Creative works are sometimes registered to formally assert the author’s rights and as a basis to claim statutory damages in the case of infringement. Notice of copyright (whether registered or not) is labeled with the name of the work, the copyright symbol “©,” and the year the work is created or published. (Registration and notice are formalities that were required under earlier copyright law in the United States, so they may be particularly relevant for works you may have published in the past.) It is important for today’s editors and authors to have a basic understand what copyright is and what it is not. Copyright is often referred to as a bundle of legal rights. Examples of those rights include the following: The right to reproduce the work, The right to distribute the work, l The right to prepare derivative works, l The right to perform the work, and, l The right to license any of the above to third parties. l l
A copyright holder can assign (license) or transfer all or just some of these rights, thus the concept of the bundle.
Publishing Contracts Chapter | 17 159
To be eligible for copyright, a work must be original, creative, and fixed in a tangible form. This may include anything from a jotting on a paper napkin (works that can be perceived directly) to those that require the aid of a machine or device. The creator is typically the copyright holder unless the work was produced within the scope of one’s employment. Under US law, work created within the scope of employment is typically owned by the employer. (Note that many universities have policies that specifically provide that their faculty and scholars hold copyright in their scholarly works such as journal articles or monographs.) Creators who retain their copyrights may transfer or assign their copyrights by contract or license. Copyright is held jointly for works that have multiple creators, i.e., each creator shares equally in the copyright unless there is something in writing among the creators to the contrary. For administrative purposes, it may be easiest to authorize one copyright holder/author to negotiate for the group, for example.
COPYRIGHTABILITY Copyright law gives the copyright holder the right to control certain uses of works that are protected by copyright. It also gives users the right to make certain uses of those works without permission. In the United States, to be eligible for copyright protection, a work must be as follows: Original To qualify as original, the work must be created independently and must have “at least a modicum” of creativity. Information in charts, graphs, and tables may not be subject to copyright protection because they are purely factual; copyright might exist if there is something original about the way data are expressed. They do not meet the originality requirement unless there is something creative about the way they are presented (e.g., a special design or a novel way to show data). Copyright may protect a database or other compilation of otherwise unprotectable elements, but only if it meets the originality requirement. Faithful reproductions of two-dimensional works of art generally are not considered to have a copyright beyond the copyright in the original work. They lack the required “modicum of creativity.” If the original work of art is in the public domain, the reproduction is typically treated as being in the public domain, too. If the original work of art is protected by copyright, it remains protected, but the person who made the reproduction does not get any new rights. l A work of authorship l Works of authorship include literary works, musical works, pictorial, graphic, and sculptural works, audiovisual works, and sound recordings, as well as many other types of creative works. If two or more people make copyrightable contributions to a work with the intent that their contributions l
l
160 PART | III Legal and Ethical Issues
be merged into one whole, they are joint authors under US law and hold equal shares of the copyright from the time the work is created. To transfer the copyright or grant an exclusive license, all joint rightsholders must agree. As mentioned earlier regarding employees and “works made for hire,” the copyright holder is the person who employed or commissioned the creator of the work, rather than the creator of the work him- or herself. l Fixed l A work must also be “fixed in a tangible medium of expression” by or under the authorization of the author. Writing a work on paper or on a computer, recording a work on tape, and sculpting a work out of marble all satisfy this requirement. An unrecorded improvisation (e.g., in music or dance) would not satisfy this requirement. An ice sculpture would probably not be sufficiently fixed to be eligible for copyright. US copyright does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” It also does not protect works prepared by an officer or employee of the US Government as part of that person’s official duties. In the United States, copyright protection lasts for a limited time only. All copyrightable works eventually lose copyright protection.
RIGHTS AND PERMISSIONS When using copyrighted work in their own content, authors must seek permission from the copyright holder. This step can be very time- and labor-intensive, but it is necessary to assure that no infringement occurs. Authors and publishers must decide if they are willing to pay a licensing fee or royalty for using material copyrighted by others. In cases when it seems too onerous a task to seek or pay for permission from a copyright holder, they may look for and use alternative material or limit their use of the material to that portion that seems eligible for fair use. The concept of fair use grants exceptions to copyright protection for purposes such as critiques, comments, news reporting, and teaching (including multiple copies for classroom use, scholarship, or research) and thus is not considered copyright infringement. Fair use is a limitation that balances the otherwise exclusive rights of copyright holders in a manner consistent with the First Amendment of the US Constitution regarding speech. The factors considered when determining whether usage qualifies as fair use include the following: 1. Purpose and character of the use, i.e., is it for nonprofit educational use and is the current author/creator’s work noncommercial in nature? It is important to remember that if an author’s work is going to be sold as a book, for example, then the work becomes commercial. 2. Nature of the copyrighted work, i.e., is the use for a factual or creative expression?
Publishing Contracts Chapter | 17 161
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole, i.e., is the creator using a little or a lot of the copyrighted material and which part(s) is being used? 4. The effect of fair use on the potential market for or value of the copyrighted work, i.e., might fair use result in a substantial decrease in the potential market and value of the original work? There are occasions when materials are no longer covered under copyright and are considered to be in the public domain. Works in the public domain may be used without the permission of the copyright holder and may be used for free. These include the following: Works published before 1923 in the US Some works published between 1923 and 1963, but “publication” complicates determination (e.g., was it published, registered, renewed?) l Works by the US government l l
TERMS OF USE In addition to copyright, it is important to define the license terms under which a work can be used. When there is no specific indication of the terms of use, one may assume a work is subject to copyright—unless fair use or one of the other exceptions to copyright is applicable to your use (more on that in a moment). This means that while the work can be read, it cannot be reused, copied, or distributed in any way without the express permission of the rights holder in the absence of an applicable exception. More liberal licenses are available for authors and copyright holders to enable readers to reuse the work. The most commonly used suite of licenses is Creative Commons (CC) [2]. CC is a nonprofit organization that offers free licenses and related legal tools that help authors mark their creative work with specific licenses that indicate how others may use their work. It facilitates sharing one’s work while retaining legal and practical control over one’s work product while making it available for some level of reuse. It is designed to address the fluid nature of uses via the Internet—but it can be and is used for all kinds of media. Open Access books and journals typically use some form of a CC license. CC licenses are well accepted and useful. This chapter draws from materials prepared by the University of Michigan Copyrights Office which are distributed under a CC BY license [3]. The CC BY license indicates that the copyright holder grants permission for others to reuse the material provided proper attribution is made. By following the terms of the license, no additional permission is needed. Some people still pursue permissions as a courtesy even with an attribution license. As a practical matter, this is not necessary.
162 PART | III Legal and Ethical Issues
FIGURE 17.2 Creative Commons (CC) license spectrum. Creative Commons license spectrum between public domain (top) and all rights reserved (bottom). Left side indicates the use cases allowed, right side indicates the license components. The dark green area indicates Free Cultural Works compatible licenses, the two green areas indicate compatibility with the Remix culture. The CC licenses present authors with a range of options to license—and communicate their license effectively—to encourage sharing of their work. (https://creativecommons.org/policies. Creative commons (the original CC license symbols), combined work by Shaddim cc-by-4.0 licensed. From https://en.wikipedia. org/wiki/File:Creative_commons_license_spectrum.svg.)
Fig. 17.2 illustrates the spectrum of licenses available from CC, and Fig. 17.3 shows the symbols for each type of CC license along with the rights associated with that license.
PUBLISHING AND CONTRACTS Authors who are interested in getting their work published will need to sign a contract with a publishing company or a university press. Author agreements
Publishing Contracts Chapter | 17 163
FIGURE 17.3 Creative Commons licenses, symbols, and associated rights. (From https://wiki. creativecommons.org/wiki/Sharing_Creative_Works_14. Creative Commons CC BY.)
are issued after the publisher has evaluated and approved the project as submitted by the author. The author can present a well thoughtout idea for a publishing project or a few sample chapters or even the complete manuscript for evaluation. Publishers typically provide information on their websites for prospective authors. Publishing contracts address at least the following kinds of concerns: Parties—who will sign the contract (author, publisher, publishing partners) Grant of rights—which rights will be transferred and under what sort of exclusivity l Copyright l Distribution—where and how the work will be distributed l Warranty and Indemnity—promises made to protect each party l Royalties—calculated usually on net receipts (the amount the publisher actually receives, taking into account discounts and commissions) l Share of profit—calculated based on the actual profit of a publishing project, after all the direct (and sometimes indirect) costs are deducted l Distribution of author payments—if there are multiple coauthors or publishing partners, the way the royalties (or share of profit) is distributed needs to be clearly stated l Out of print provisions—specifies what happens to the rights if the publication is declared out of print (rights often revert back to the author) l l
164 PART | III Legal and Ethical Issues
Term and Termination—under what circumstances each party may terminate a publishing contract
l
Publishers need certain elements to be stipulated in a publishing contract to be able to publish an author’s work as follows: Transfer of rights to the publisher to legally publish the work The contract will define which rights are being transferred and/or which rights will be retained by the original creator. It will also specify the exclusivity of those rights. Most commercial publishers and university presses require exclusive rights to publish, in part to prevent other parties (including the author) from distributing and selling the work independently. l Roles and responsibilities of signing parties The publishing agreement will clearly define what the publisher will do and what the author will do. The publisher will generally assume all responsibilities, including financial responsibility, for producing, marketing, distributing, and selling the work. The author assumes all responsibilities for creating the content and delivering it to the publisher. l Original work Publishers need assurance that the work is entirely original, except where attributed to others (e.g., attributed quotations or third-party content with permission). This includes work from all the coauthors and co-contributors. l Schedules, deadlines By signing the contract, the author commits to delivering the manuscript (and any related components) to the publisher by a specific date. In addition, the author agrees to work with the publisher in a timely manner during the publishing process so that the project does not encounter unnecessary delays (e.g., reviewing proofs). l Defamation, indemnification Publishers need assurance that no defamation to others is included in the work to reduce the possibility of legal action. Likewise, should a situation arise where either the author or the publisher becomes involved with any thirdparty disputes, the contract’s indemnity clause (as agreed on by the author and publisher) would go into effect. l
AUTHOR CONTRACTS FOR JOURNALS AND BOOKS When a paper is accepted for publication in a journal, the author will receive an agreement from the journal publisher to sign that gives the publisher the right to publish that paper. Likewise, when an author submits an invited chapter for a book, a similar agreement will be sent before the manuscript can proceed to publication. Traditionally publishers (and professional societies with publishing programs) have required that authors transfer copyright and all other rights exclusively to the publisher. However, more recently,
Publishing Contracts Chapter | 17 165
with the rapid growth in Open Access publishing, authors are able to retain copyright for their contributions and can retain certain rights regarding the use of the work. These include the right to post the manuscript (or even the published article) on the author’s personal website or laboratory website l post the manuscript (or published article) to an institutional repository l distribute a specified number of offprints (electronically) to colleagues and collaborators l
Ultimately, the publisher may be willing to give the author the option of retaining certain rights as well as copyright for his or her paper. But, some journals are quite rigid in their policies and the author may not have much room for negotiation. Then the author will need to decide whether to publish the paper in that particular journal or perhaps consider alternatives. Similarly, some book publishers are not willing to negotiate terms for author contracts (in part because it can cause problems with the other authors in the same book). Again, the author has a choice whether to accept the terms as they are presented or to withdraw the chapter from the book.
PROTECTING YOUR INTELLECTUAL PROPERTY Publishing research and other scholarly information is an essential part of science and medicine. Working with publishing organizations, be they large companies, university presses, professional societies, or related vendors, is usually inevitable. Authors will receive contracts and those contracts will need to be signed to proceed with publication. But, it is important to be aware of author rights, what may or may not be negotiable, and what it means for the way the work will ultimately be distributed and used. One of the most important and most commonly overlooked considerations for managing your intellectual property is also the simplest: retain copies of your signed contracts. These are important documents about one’s career. Knowing what your rights are and what you have agreed to over the years is vitally important to later use of your work and managing your intellectual legacy. It is never too early to start. The Authors Alliance promotes authorship with particular attention to the scholarly community and is an excellent source of information (http://www.authorsalliance.org/). Be a responsible steward of your intellectual property. Retain vital rights for you and your readers while authorizing publishing activities that benefit everyone by making scholarship more widely available [4].
Many research libraries increasingly are hiring people with copyright and publishing expertise to help faculty, staff, and students with concerns related to publishing contracts and copyright. The University of Michigan Library has
166 PART | III Legal and Ethical Issues
an established Copyright Office with knowledgeable staff available to assist the University community with questions about any of the topics covered in this chapter. http://lib.umich.edu/copyright. [email protected].
REFERENCES [1] Litman J. Digital copyright. Prometheus Books; 2006. [2] https://creativecommons.org/. [3] Portions of the copyrightability and rights and permissions sections are adapted from the University of Michigan Library. [4] www.arl.org/sparc.
Rights and Publishing Contracts: What Authors Need to Know Melissa Levine, JD1, Karen Kost2 1Copyrights 2Health
Office, University Library, University of Michigan, Ann Arbor, MI, United States; Information Technology and Services, University of Michigan, Ann Arbor, MI, United States
Copyright scholar Jessica Litman describes copyright law, which determines who gets to control works of scholarship like academic papers and textbooks, as “peculiarly counterintuitive,” completely baffling to lay people, and designed by copyright lawyers for copyright lawyers [1]. Unfortunately, most physicians and researchers do not have a copyright lawyer on hand to help them review their publishing agreements and make decisions about permissions and licensing. The following chapter provides a brief overview for academic authors to help them understand the basic rules of copyright and how to understand and negotiate their publishing contracts.
COPYRIGHT The Statute of Anne was passed in England in 1710. Considered the first copyright statute, the full title of the law was “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.” From around 1440 when Johannes Gutenberg invented the printing press, the number of printing presses increased rapidly. Along with the growing number of books, more people were literate. This in turn raised concerns by governments, authors, and publishers about unregulated copying of books. This led to the development of intellectual property rights by the time of the Statute of Anne. From its earliest concept, copyright law today has grown to address the rights and ownership of not only written materials but also other types of creative works including music, choreography, films, visual arts such as photographs, architectural works, software, and more. US copyright law does not protect ideas, facts, titles, data, or useful articles, the latter of which is protected by patent laws. The United States Constitution deals with rights of the author in Article 1, Section 8, Clause 8, known as the Copyright Clause, stating that the US Medical and Scientific Publishing. https://doi.org/10.1016/B978-0-12-809969-8.00017-6 Copyright © 2018 The Regents of the University of Michigan.
157
158 PART | III Legal and Ethical Issues
FIGURE 17.1 Photo of copyright clause from the United States Constitution.
Congress shall have the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Fig. 17.1). This represents the foundation for US intellectual property law, specifically that having to do with patents and copyright. The term of copyright protection generally begins from the moment of creation and continues for the life of the author, plus 70 years. Copyright protection is automatic; it is not necessary to register a work with the US Copyright Office to be eligible for copyright protection. However, there are legal benefits to registration and most publishers will register your work in your name as the author or in their name as publisher, depending on the terms of your contract. Creative works are sometimes registered to formally assert the author’s rights and as a basis to claim statutory damages in the case of infringement. Notice of copyright (whether registered or not) is labeled with the name of the work, the copyright symbol “©,” and the year the work is created or published. (Registration and notice are formalities that were required under earlier copyright law in the United States, so they may be particularly relevant for works you may have published in the past.) It is important for today’s editors and authors to have a basic understand what copyright is and what it is not. Copyright is often referred to as a bundle of legal rights. Examples of those rights include the following: The right to reproduce the work, The right to distribute the work, l The right to prepare derivative works, l The right to perform the work, and, l The right to license any of the above to third parties. l l
A copyright holder can assign (license) or transfer all or just some of these rights, thus the concept of the bundle.
Publishing Contracts Chapter | 17 159
To be eligible for copyright, a work must be original, creative, and fixed in a tangible form. This may include anything from a jotting on a paper napkin (works that can be perceived directly) to those that require the aid of a machine or device. The creator is typically the copyright holder unless the work was produced within the scope of one’s employment. Under US law, work created within the scope of employment is typically owned by the employer. (Note that many universities have policies that specifically provide that their faculty and scholars hold copyright in their scholarly works such as journal articles or monographs.) Creators who retain their copyrights may transfer or assign their copyrights by contract or license. Copyright is held jointly for works that have multiple creators, i.e., each creator shares equally in the copyright unless there is something in writing among the creators to the contrary. For administrative purposes, it may be easiest to authorize one copyright holder/author to negotiate for the group, for example.
COPYRIGHTABILITY Copyright law gives the copyright holder the right to control certain uses of works that are protected by copyright. It also gives users the right to make certain uses of those works without permission. In the United States, to be eligible for copyright protection, a work must be as follows: Original To qualify as original, the work must be created independently and must have “at least a modicum” of creativity. Information in charts, graphs, and tables may not be subject to copyright protection because they are purely factual; copyright might exist if there is something original about the way data are expressed. They do not meet the originality requirement unless there is something creative about the way they are presented (e.g., a special design or a novel way to show data). Copyright may protect a database or other compilation of otherwise unprotectable elements, but only if it meets the originality requirement. Faithful reproductions of two-dimensional works of art generally are not considered to have a copyright beyond the copyright in the original work. They lack the required “modicum of creativity.” If the original work of art is in the public domain, the reproduction is typically treated as being in the public domain, too. If the original work of art is protected by copyright, it remains protected, but the person who made the reproduction does not get any new rights. l A work of authorship l Works of authorship include literary works, musical works, pictorial, graphic, and sculptural works, audiovisual works, and sound recordings, as well as many other types of creative works. If two or more people make copyrightable contributions to a work with the intent that their contributions l
l
160 PART | III Legal and Ethical Issues
be merged into one whole, they are joint authors under US law and hold equal shares of the copyright from the time the work is created. To transfer the copyright or grant an exclusive license, all joint rightsholders must agree. As mentioned earlier regarding employees and “works made for hire,” the copyright holder is the person who employed or commissioned the creator of the work, rather than the creator of the work him- or herself. l Fixed l A work must also be “fixed in a tangible medium of expression” by or under the authorization of the author. Writing a work on paper or on a computer, recording a work on tape, and sculpting a work out of marble all satisfy this requirement. An unrecorded improvisation (e.g., in music or dance) would not satisfy this requirement. An ice sculpture would probably not be sufficiently fixed to be eligible for copyright. US copyright does not protect “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” It also does not protect works prepared by an officer or employee of the US Government as part of that person’s official duties. In the United States, copyright protection lasts for a limited time only. All copyrightable works eventually lose copyright protection.
RIGHTS AND PERMISSIONS When using copyrighted work in their own content, authors must seek permission from the copyright holder. This step can be very time- and labor-intensive, but it is necessary to assure that no infringement occurs. Authors and publishers must decide if they are willing to pay a licensing fee or royalty for using material copyrighted by others. In cases when it seems too onerous a task to seek or pay for permission from a copyright holder, they may look for and use alternative material or limit their use of the material to that portion that seems eligible for fair use. The concept of fair use grants exceptions to copyright protection for purposes such as critiques, comments, news reporting, and teaching (including multiple copies for classroom use, scholarship, or research) and thus is not considered copyright infringement. Fair use is a limitation that balances the otherwise exclusive rights of copyright holders in a manner consistent with the First Amendment of the US Constitution regarding speech. The factors considered when determining whether usage qualifies as fair use include the following: 1. Purpose and character of the use, i.e., is it for nonprofit educational use and is the current author/creator’s work noncommercial in nature? It is important to remember that if an author’s work is going to be sold as a book, for example, then the work becomes commercial. 2. Nature of the copyrighted work, i.e., is the use for a factual or creative expression?
Publishing Contracts Chapter | 17 161
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole, i.e., is the creator using a little or a lot of the copyrighted material and which part(s) is being used? 4. The effect of fair use on the potential market for or value of the copyrighted work, i.e., might fair use result in a substantial decrease in the potential market and value of the original work? There are occasions when materials are no longer covered under copyright and are considered to be in the public domain. Works in the public domain may be used without the permission of the copyright holder and may be used for free. These include the following: Works published before 1923 in the US Some works published between 1923 and 1963, but “publication” complicates determination (e.g., was it published, registered, renewed?) l Works by the US government l l
TERMS OF USE In addition to copyright, it is important to define the license terms under which a work can be used. When there is no specific indication of the terms of use, one may assume a work is subject to copyright—unless fair use or one of the other exceptions to copyright is applicable to your use (more on that in a moment). This means that while the work can be read, it cannot be reused, copied, or distributed in any way without the express permission of the rights holder in the absence of an applicable exception. More liberal licenses are available for authors and copyright holders to enable readers to reuse the work. The most commonly used suite of licenses is Creative Commons (CC) [2]. CC is a nonprofit organization that offers free licenses and related legal tools that help authors mark their creative work with specific licenses that indicate how others may use their work. It facilitates sharing one’s work while retaining legal and practical control over one’s work product while making it available for some level of reuse. It is designed to address the fluid nature of uses via the Internet—but it can be and is used for all kinds of media. Open Access books and journals typically use some form of a CC license. CC licenses are well accepted and useful. This chapter draws from materials prepared by the University of Michigan Copyrights Office which are distributed under a CC BY license [3]. The CC BY license indicates that the copyright holder grants permission for others to reuse the material provided proper attribution is made. By following the terms of the license, no additional permission is needed. Some people still pursue permissions as a courtesy even with an attribution license. As a practical matter, this is not necessary.
162 PART | III Legal and Ethical Issues
FIGURE 17.2 Creative Commons (CC) license spectrum. Creative Commons license spectrum between public domain (top) and all rights reserved (bottom). Left side indicates the use cases allowed, right side indicates the license components. The dark green area indicates Free Cultural Works compatible licenses, the two green areas indicate compatibility with the Remix culture. The CC licenses present authors with a range of options to license—and communicate their license effectively—to encourage sharing of their work. (https://creativecommons.org/policies. Creative commons (the original CC license symbols), combined work by Shaddim cc-by-4.0 licensed. From https://en.wikipedia. org/wiki/File:Creative_commons_license_spectrum.svg.)
Fig. 17.2 illustrates the spectrum of licenses available from CC, and Fig. 17.3 shows the symbols for each type of CC license along with the rights associated with that license.
PUBLISHING AND CONTRACTS Authors who are interested in getting their work published will need to sign a contract with a publishing company or a university press. Author agreements
Publishing Contracts Chapter | 17 163
FIGURE 17.3 Creative Commons licenses, symbols, and associated rights. (From https://wiki. creativecommons.org/wiki/Sharing_Creative_Works_14. Creative Commons CC BY.)
are issued after the publisher has evaluated and approved the project as submitted by the author. The author can present a well thoughtout idea for a publishing project or a few sample chapters or even the complete manuscript for evaluation. Publishers typically provide information on their websites for prospective authors. Publishing contracts address at least the following kinds of concerns: Parties—who will sign the contract (author, publisher, publishing partners) Grant of rights—which rights will be transferred and under what sort of exclusivity l Copyright l Distribution—where and how the work will be distributed l Warranty and Indemnity—promises made to protect each party l Royalties—calculated usually on net receipts (the amount the publisher actually receives, taking into account discounts and commissions) l Share of profit—calculated based on the actual profit of a publishing project, after all the direct (and sometimes indirect) costs are deducted l Distribution of author payments—if there are multiple coauthors or publishing partners, the way the royalties (or share of profit) is distributed needs to be clearly stated l Out of print provisions—specifies what happens to the rights if the publication is declared out of print (rights often revert back to the author) l l
164 PART | III Legal and Ethical Issues
Term and Termination—under what circumstances each party may terminate a publishing contract
l
Publishers need certain elements to be stipulated in a publishing contract to be able to publish an author’s work as follows: Transfer of rights to the publisher to legally publish the work The contract will define which rights are being transferred and/or which rights will be retained by the original creator. It will also specify the exclusivity of those rights. Most commercial publishers and university presses require exclusive rights to publish, in part to prevent other parties (including the author) from distributing and selling the work independently. l Roles and responsibilities of signing parties The publishing agreement will clearly define what the publisher will do and what the author will do. The publisher will generally assume all responsibilities, including financial responsibility, for producing, marketing, distributing, and selling the work. The author assumes all responsibilities for creating the content and delivering it to the publisher. l Original work Publishers need assurance that the work is entirely original, except where attributed to others (e.g., attributed quotations or third-party content with permission). This includes work from all the coauthors and co-contributors. l Schedules, deadlines By signing the contract, the author commits to delivering the manuscript (and any related components) to the publisher by a specific date. In addition, the author agrees to work with the publisher in a timely manner during the publishing process so that the project does not encounter unnecessary delays (e.g., reviewing proofs). l Defamation, indemnification Publishers need assurance that no defamation to others is included in the work to reduce the possibility of legal action. Likewise, should a situation arise where either the author or the publisher becomes involved with any thirdparty disputes, the contract’s indemnity clause (as agreed on by the author and publisher) would go into effect. l
AUTHOR CONTRACTS FOR JOURNALS AND BOOKS When a paper is accepted for publication in a journal, the author will receive an agreement from the journal publisher to sign that gives the publisher the right to publish that paper. Likewise, when an author submits an invited chapter for a book, a similar agreement will be sent before the manuscript can proceed to publication. Traditionally publishers (and professional societies with publishing programs) have required that authors transfer copyright and all other rights exclusively to the publisher. However, more recently,
Publishing Contracts Chapter | 17 165
with the rapid growth in Open Access publishing, authors are able to retain copyright for their contributions and can retain certain rights regarding the use of the work. These include the right to post the manuscript (or even the published article) on the author’s personal website or laboratory website l post the manuscript (or published article) to an institutional repository l distribute a specified number of offprints (electronically) to colleagues and collaborators l
Ultimately, the publisher may be willing to give the author the option of retaining certain rights as well as copyright for his or her paper. But, some journals are quite rigid in their policies and the author may not have much room for negotiation. Then the author will need to decide whether to publish the paper in that particular journal or perhaps consider alternatives. Similarly, some book publishers are not willing to negotiate terms for author contracts (in part because it can cause problems with the other authors in the same book). Again, the author has a choice whether to accept the terms as they are presented or to withdraw the chapter from the book.
PROTECTING YOUR INTELLECTUAL PROPERTY Publishing research and other scholarly information is an essential part of science and medicine. Working with publishing organizations, be they large companies, university presses, professional societies, or related vendors, is usually inevitable. Authors will receive contracts and those contracts will need to be signed to proceed with publication. But, it is important to be aware of author rights, what may or may not be negotiable, and what it means for the way the work will ultimately be distributed and used. One of the most important and most commonly overlooked considerations for managing your intellectual property is also the simplest: retain copies of your signed contracts. These are important documents about one’s career. Knowing what your rights are and what you have agreed to over the years is vitally important to later use of your work and managing your intellectual legacy. It is never too early to start. The Authors Alliance promotes authorship with particular attention to the scholarly community and is an excellent source of information (http://www.authorsalliance.org/). Be a responsible steward of your intellectual property. Retain vital rights for you and your readers while authorizing publishing activities that benefit everyone by making scholarship more widely available [4].
Many research libraries increasingly are hiring people with copyright and publishing expertise to help faculty, staff, and students with concerns related to publishing contracts and copyright. The University of Michigan Library has
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an established Copyright Office with knowledgeable staff available to assist the University community with questions about any of the topics covered in this chapter. http://lib.umich.edu/copyright. [email protected].
REFERENCES [1] Litman J. Digital copyright. Prometheus Books; 2006. [2] https://creativecommons.org/. [3] Portions of the copyrightability and rights and permissions sections are adapted from the University of Michigan Library. [4] www.arl.org/sparc.