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Understanding Your Publication Agreement
It is not the intent of this section to instruct you how to read every section of your publication contract; the focus here is on identifying the clauses that relate to the transfer of the copyright in your work to the publisher. To begin with, there are several basic concepts to keep in mind:
• A transfer of copyright must be in writing and signed by the copyright holder. This means that you cannot have orally promised your copyright to someone and now wonder if you are still capable of transferring it to the publisher.
• Your publishing agreement is a contract. Contract law trumps copyright law. Therefore, if you sign away certain rights you might have had under the copyright law, those rights are gone.
• A "warrant" is a promise. If you "warrant" that something is the case, is the truth, and it turns out not to be - then you are in breach of your warranty. Agreements that contain warranties usually provide for consequences if the warranty turns out to be untrue. For example, publication agreements often require the author to warrant that the work submitted is his/her own original work, that anything in the work not original is there with the permission of the appropriate copyright holder, and, finally, that the work has not been previously published. Some of these agreements also require the author to warrant that they have the right and authority to enter into the agreement and to either transfer the copyright or grant the rights being given in the agreement.
• The consequences for a breach of warranty in publication agreements is usually indemnification. So, for example, let's say you have warranted that the work is your original work and no one else has any rights to it. The work is published. Out comes someone else claiming to have written portions of the work and you have used their work without their permission. Breach of warranty. If the publisher is sued, you will probably be on the hook for their litigation costs, attorney's fees, and damages. Another example - you warrant that no one else (no other entity) has any rights to your work and you are transferring the entire copyright, unencumbered by any other's right to use the work. Now you read your university's copyright ownership policy, perhaps UNC-Charlotte's Copyright Policy, and you find out that, while you are the copyright holder of your journal article, the University has retained a perpetual, royalty-free, non-transferable right to use your journal article for its own educational non-commercial uses. Breach of warranty. You said no one else had any rights to the work but that's not true, the University does.
• Do not sign anything you don't understand. Ask questions. Don't be afraid to re-work the agreement. You will be held to every word of it, so make sure you know what those words mean.
• Understand that once you transfer or assign "all rights" or "the copyright" to the work, you and I now stand in the same place with respect to your work. You can't do anything more with the work or portions of the work than I can. It doesn't matter that you are the author; what counts is that you are no longer the copyright holder and you have no more rights to the work than a stranger does.
• Three examples of the complete transfer of copyright:
1. "The author transfers exclusively to the publisher copyright (including all rights thereunder) in the work for the duration of copyright and all extensions and renewals thereof, in all languages, throughout the world, and in any form or medium now known or hereafter developed."
2. "This Agreement is made between _______________ and __________________(name of author). Author represents and warrants that he/she is the sole creator and owner of ____________ and holds the complete and undivided copyright interest to the Work. For valuable consideration, receipt and sufficiency of which are hereby acknowledged, the Author and _____________ agree as follows:
A. ____________ does hereby sell, assign, and transfer to ____________ its successors and assigns, the entire right, title, and interest in and to the copyright in the Work and any registrations and copyright applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Work, and in and to all income, royalties, damages, claims and payments now or hereafter fue or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based upon the copyrights, and in and to all rights corresponding to the foregoing throughout the world."
3. "Copyright Assignment
The author hereby assigns to ___________ the copyright in the above article, throughout the world, in any form, in any language, for the full term of copyright, effective upon acceptance for publication.
The author warrants that the article is original, written by stated author, has not been published before, contains no unlawful statements, does not infringe the rights of others, and that any necessary written permissions to quote from other sources have been obtained by the authors."
Now that you recognize the transfer of copyright clause and understand its effect (if not, see Copyright Basics Tutorial), how can this transfer be rehabilitated? Alternate policy language, to achieve different possible outcomes, can be found here.
One last thing for those of you working at institutions that have retained some kind of use right to your copyrighted work - like UNC-Charlotte and other institutions within the University of North Carolina system - how do you disclose this "use" right to your publisher in a way that convinces them that it is not a threat?
At NC State, which calls its "use" right a "shop right", this question arose frequently, prompting me to write an Administrative Memo and attach it to the Copyright Implementation Regulation. This memo with its suggested language to attach to your publication agreement, can be found here.