Negotiating Copyright Transfer Agreements

© Transfer is "the works"

Most academic journals require that authors transfer copyright ownership to the publisher as a condition of publication. Authors are asked to sign the agreement after their article is accepted.

Example: Typical Terms
Taylor & Francis, a commercial publisher with a fairly liberal copyright policy (as of fall 2008)

... [I] hereby agree to transfer to Taylor & Francis all rights, including those pertaining to electronic forms and transmissions, under existing copyright laws, except for the following, which the author(s) specifically retain(s):

  1. The right to make further copies of all or part of the published article for my use in classroom teaching or for any other;
  2. The right to reuse all or part of this material in a compilation of my own works or in a textbook of which I am the author;
  3. The right to make copies of the published work for internal distribution within the institution that employs me. ...

Such copyright transfer is unique to academia -- in most non-academic publishing authors expect to retain copyright ownership and instead license the work to the publisher, often with a contract that grants to the publisher "First North American Print Rights" or some variant thereon.  Copyright transfer is much more extreme, and essentially transfers ownership -- from a legal perspective, the publisher essentially becomes the "author." If you transfer your copyright, you can't even sue a third party for copyright infringement!

In some cases a journal copyright transfer includes a license that allows the original author a few rights to use the work. However, most UO authors will find that they have given up more rights than they expect or wish to.  For instance, in the Taylor & Francis example shown here the author did not retain the right to use selected figures in a followup study, and did not retain the right to post a copy of her own paper on her public website.

Example: Negotiation
  1. A UO author received a copyright transfer form that demanded all rights with no retained rights for the author.
  2. She returned it with an author's addendum.
  3. Publisher rejected it, but replied with an alternative contract that granted even more rights than she had asked for:

Dear Prof XXX,

We recently received your signed release form with attached addendum concerning your contribution... Unfortunately, we cannot accept this; however, we have attached a new release form that is non-exclusive instead of exclusive. We believe this may be what your addendum is also stating. ...

Negotiating terms

In both academic and commercial publishing, though, it's possible to negotiate the terms of the publishing contract. The first step is to know what rights you really want to retain. The second is to make a counter-offer to the publisher rather than simply signing the copyright transfer agreement -- typically by including an author's addendum. If the publisher responds by rejecting the addendum, you can ask why and what arrangement the publisher is willing to make. In many cases the publisher will have a standard alternative contract that grants the publisher a non-exclusive right to use your work, but allows you to retain copyright ownership. If not, you'll need to negotiate for whatever rights you feel are most important to you.

Your bargaining position with the publisher will be much stronger if you can point to some other requirement that you retain rights.  For example, if you receive funding from a granting agency that requires you to retain some rights, point that out and don't give the publisher any choice.  For a list of such agencies see for example the Sherpa Juliet list of research funders' open access policies.  Or perhaps you need to retain some copyright-related rights due to the requirements of a patent application or contract.

Caveat auctor

Whatever contract you enter with your publisher, you should keep a copy in your own files, both of the copyright transfer agreement and of any additional addenda.

As you negotiate terms, the document you actually sign is the most important -- it's the contract.  But often a publisher will also have additional web pages explaining the copyright transfer and perhaps suggesting that you have additional rights.  Some lawyers argue that those additional explanations aren't actually legally binding on the publisher, though.  If those rights matter to you, it would be best to reference them as part of the copyright transfer.  It's your work that you are giving away, and you want to make sure you keep the rights you need!

Rights to retain

Most UO faculty want at a minimum an assurance that their work will be used appropriately. We don't want our works modified without our permission, and want to continue to be acknowledged as the authors. That's not usually an issue in practice, since publishers voluntarily follow academic norms. But sometimes a publisher may want to publish an article (e.g. an encyclopedia article) anonymously, or may decide to translate your work without allowing you the opportunity to verify the translation. More common is the case of a publisher who finds a new business opportunity to sell your work. Recent examples in the news have included copies of conference papers sold on the web and journal articles reprinted by large corporations as part of their product marketing. Perhaps most commonly, authors want their work published in timely fashion, and sometimes a journal will delay publication or go out of business before the article is published; you might want to add a clause to your copyright transfer that makes it contingent on publication within a year.

Most faculty also want to be able to continue to use their work for their own non-commercial purposes. For example, it's routine to provide reprints (copies) of journal articles to colleagues on request, to assign your own articles in your teaching, or to make your articles available on your web site. If you deliver a conference paper, you almost certainly don't want to transfer copyright to it, since you'll probably want to publish a very similar paper in a peer reviewed journal. Even the text, figures, and data tables of a journal article may be something you'll want to re-use (with appropriate attribution) in a future paper. In some disciplines the author may hope to republish articles as book chapters, in which case you either need to retain rights when you first publish it or more likely will need to negotiate for rights later. In artistic production and performance fields, author may want to retain public display and performance rights.

A very common right to want to retain is the right to make a version of your work publicly accessible, perhaps in the UO's Scholars' Bank or on your own web site or a disciplinary repository like arXiv. That might be a draft, it might be the author's final peer reviewed version, or it might be the formatted version as published. Authors have a strong interest in avoiding multiple versions, so if your copyright transfer agreement allows you to distribute (publicly display) a preprint you'll probably also want to indicate any differences between it and the published version, and you'll certainly want to cite and link to the published version. The publisher may only allow you to distribute the published version after an embargo period of 6 months or a year.

Finally, you may need to retain rights in order to be able to do something required by your grant funding agency. For example, if you receive NIH funding then you will need to deposit a copy of grant-related publications in PubMed Central. You can't legally do that unless you retain sufficient rights as part of the copyright transfer agreement.

Getting advice

A copyright transfer is a bill of sale -- it's a legal document, and if the stakes are high you should get professional legal advice. The UO currently does not provide legal advice for faculty or staff, but there are still various options. For example, if you have questions about a copyright agreement you can contact SCIS. We can't give you legal advice, but we have seen a variety of agreements and may be able to provide useful information.

Additional notes

Most of your interactions with a journal are with a journal editor, who is typically a professor who also serves as editor. Editors are caught in the middle -- their primary goal is to find top articles, but they also have to deal with their publisher's bureaucracy. It's that commercial publisher -- or the scholarly society that owns the journal -- who requires the copyright transfer.

Some journals expect a copyright transfer (one hopes contingent on acceptance) before your paper is accepted. Don't ever sign such a thing; it's not standard practice, and weakens your bargaining position. Wait till the paper has been accepted.  Some journals have an online submission process that requires that you accept the publisher's terms and don't give you any chance to negotiate or include an author's addendum.  Don't do it.  Contact the editor and say that you are sending your copyright transfer by email instead.

Journals vary widely in their policies. One attempt to build a database of publisher policies is Sherpa/Romeo, a database of publishers who allow open access. However, any such database is likely to be inaccurate and in particular won't describe how willing the publisher is to negotiate if you have needs that aren't met by publisher's usual terms.

See also: