Nuts and Bolts of Scholarly Publishing

Journal publishing agreements come in many different forms and go by many different names. However, most agreements share a set of key clauses.

In this part of a publishing agreement, the author grants the publisher some rights under copyright for the purpose of publishing the article. This can take the form of a copyright transfer or a copyright license.

Copyright Transfer

By transferring copyright, the author gives their rights to the publisher, making the publisher the new copyright owner of the article. Transfers include a verb that indicates that copyright is changing hands (i.e. "assign", "transfer", or "convey") and a phrase that makes clear that all rights under copyright are included (i.e. "all right, title and interest", "all copyright", or "all ownership").

Copyright License

By licensing copyright, the author gives the publisher permission to use the article in ways that would otherwise infringe copyright. Because licenses can apply to all or any subset of the rights available to the copyright owner, agreements involving a license will specify which rights are included, often mentioning particular formats or geographic regions for publication, as well as the period of time for which the license will remain in effect.

Licenses can be exclusive or non-exclusive:

• Exclusive licenses must be explicitly granted in writing. Under an exclusive license, the licensee is the only party that can exploit the rights granted.
• Non-exclusive licenses allow the licensee to use the rights in question, but the copyright owner can continue to also exercise those rights and/or to license them to other parties.

Including representations and warranties in a journal publishing contract allows the publisher to have the author confirm a set of statements about the article, with the aim of ensuring that publishing the article will not create any legal issues for which the publisher may be responsible.

Representations and warranties in journal publishing agreements usually ask the author to verify that:

• The article is "original" and all authors have been appropriately credited.
• The article does not contain any statements that are "libelous" or "defamatory" (false statements that harm another person).
• The article does not violate any privacy rights or any confidentiality or non-disclosure agreements.
• If the article includes "third party materials" that may be protected by intellectual property law (such as copyrighted materials belonging to someone else), the author has or will obtain permission to use them.

Journal publishing agreements often include language that specifies the particular rights the article's author can continue to exercise after the agreement has been signed. These may be referred to as "Rights Retained" or "Permitted Uses" by the author. In situations where copyright has been transferred or exclusively licensed to the publisher, this section represents the publisher's commitment to license rights back to the author on a non-exclusive basis.

Journal publishing agreements may include a variety of additional sections. Some commonly included additional terms include:

• Data publication and licensing commitments
• Terms specific to works sponsored by government grants, often creating exceptions to the agreement allowing the author to comply with funder requirements
• Privacy clauses that permit the publisher to use and store the author's personal information

Examine the examples below to practice spotting the key clauses discussed here within the context of a complete publishing contract.