Managing Copyrights & Negotiating Agreements

You’ve put a tremendous amount of work into your research and writing. As you get ready to publish, it’s important to think both short- and long-term about how you want to use your work, including what rights you wish to retain versus those you’re comfortable transferring to a publisher.

This page provides a workflow for you to navigate managing your author rights and negotiating publishing agreements.

 

What do you own?

Before you sign the contract for publishing your manuscript, it’s important to understand first that you (in most cases) are the copyright holder.

As an academic author at UC Berkeley, you often hold copyright in your scholarly works unless subject to certain agreements, or until you transfer all or certain rights to a publisher.

The UC's Copyright Ownership and Ownership of Course Materials policies clarify who owns the copyright to original works created at UC and how the rights of ownership are allocated between the authors and the University.

We talk more about these policies on our Understanding Licenses page, and they are explained in full the UC's Copyright guide (check out their What do I own? page).

 

What does ownership mean?

Remember from the Copyright Basics page that having "copyright" means that you have the right to make certain exclusive uses of your work for a limited period of time (though of course subject to others' ability to make fair uses of your work, or exercise other statutory exemptions). Those exclusive rights include:

  • Reproduction
  • Preparation of derivative works (such as adaptations)
  • Distribution
  • Public performance
  • Public display
  • Public performance of sound recordings via digital audio transmission

You can grant permission (or a "license") to others to make certain but not all such uses. For instance, you can grant a publisher the right to make reproductions and distribute your work, but not to publish derivative works based upon it (like translations, or audio versions).

And, you can decide to grant these licenses non-exclusively or exclusively. In other words, you can grant someone the exclusive right of reproducing your work, but if you do, that might mean you can no longer reproduce it yourself unless you carve out this right in the agreement!

If your work is jointly authored, you can grant only non-exclusive rights to others unless you have the consent of all authors (see the UC Copyright Guide's section on Jointly Authorship and Collective Works for an explanation of this).

 

What is your publisher asking for?

Typically, journals’ publishing agreements will ask that you transfer or license your copyrights without compensation. The value (or “consideration,” in legal terms) that you gain in exchange for conveying a transfer or license is that you’re being published in a prestigious journal, which also carries the potential for gaining scholarly impact. The value the publisher gains is being able to control how your work is published, and in setting the terms and conditions for others to access the work (e.g. subscription prices, online access).

In the case of scholarly books, the publishing agreement transfer or license will typically involve a monetary transaction: You receive a lump sum or royalties based on how many books are sold, and the publisher receives rights to control the price of the books (if they’re not open access), the manner and terms of how the book is published, whether new editions or translations are created, etc.

Publishing agreements can differ in so many ways. For instance:

  • They might ask for rights only for publishing in certain types of media (e.g. print books but not eBooks), or for certain periods of time or editions.
  • One publisher’s agreement may ask you to transfer all of the six exclusive rights you hold, or an agreement might not be asking for a transfer at all, but instead merely license to certain of your rights “bundle” on an exclusive basis.
  • Sometimes with journals, the “exclusivity” period is only for 6 mos. or a year, after which point you’re able to post copies of the work on other sites or use it in other ways.

So, you’ll need to review the terms of your agreement carefully. As we discuss below, it’s really worth it to spend the time digging in to what you’re being asked to confer.

 

What do you want to agree to?

To determine whether you’re comfortable with the terms of the transfer or license, it may be helpful to start by thinking about both your short- and long-term goals for the work.

Remember, if you transfer your copyright in toto to a publisher, you are providing them with all your exclusive rights. You may even be asked to sign away rights to make uses that would otherwise be "fair." 

This could result in downstream frustration for you if, for instance:

  • You later desire to have your book published as an eBook, or for a copy to be made available open access with a Creative Commons license, but you have assigned all copyright to your publisher.
  • Or perhaps you wish to commission a translation, but your publisher now holds these rights.
  • Depending on how similar subsequent articles are to your original, even these might count as “derivative works”—as to which the right to create may have been assigned to your publisher.
  • Indeed, some agreements prohibit you from posting a copy of the publisher version of the final article to your personal or departmental website. If you wish to do so, you would have needed to get this right added to the agreement in advance.

Assessing your future intentions before you sign your agreement will better position you to be able both to understand and negotiate the rights or licenses they’ve asked you to confer.

 

What are your negotiating options?

Once you figure out what future uses you do or might want to make from your work, you can explore what options you have to preserve necessary rights. It may not always be possible to successfully negotiate changes to your publisher’s agreement. But, it’s often worth trying.

Generally speaking, there are a few main approaches you could take:

Transfer Your Copyrights But Reserve Certain Rights or Licenses for Yourself

  • If you already know exactly what kinds of uses you want to make—such as posting to a personal or departmental website, making a later derivative work such as a translation, etc.—then you can try expressly adding or building in this planned use into the agreement.  One way to do this is by adding language like the following after the sentences or paragraphs in which transfer occurs: “Notwithstanding the foregoing…” or “Except that nothing in this paragraph shall limit [author’s name] right to…,” and then specifying the rights you wish to retain. Likewise, if you’re being asked to provide “exclusive” rights that would prohibit you from making certain uses of your own work that you know you want to make, you may wish to strike this language and insert “non-exclusive” for these particular rights. 

  • You can also expressly include what are called “reversion” or “out-of-print” clauses. These clauses assign copyright to a publisher for only as long as the work is still “in print”—after which point, copyright reverts to the author. Of course, agreements differ in how they define out-of-print, and there’s a great FAQ section by the organization Authors Alliance that discusses this. Reversion clauses can be incredibly useful to ask for if they are not already built into your agreement, because they streamline the process for getting your rights back if the publisher decides, for instance, to stop publishing your book. The reversion clauses will probably differ in terms of the “triggering” event, and the steps you must take to exercise your reversion right once the triggering event has occurred.

Retain Copyrights But Grant Certain Licenses to the Publisher

  • Alternatively, you might be able to negotiate for retaining your copyright and instead granting certain exclusive licenses to your publisher. Some publishers may be satisfied with, for instance, being given “exclusive worldwide first publication rights” in certain or all languages. Granting a “first publication” license can mean you get to keep rights to do other things with your work, such as posting copies to your website, creating adaptations or books that incorporate the original manuscript, etc.

 

If you’ve already assigned your copyright, can you get it back?

Sometimes, you can get rights back even if you’ve assigned them away!

Getting Rights Back By Contract

Even if your publisher agreement doesn’t expressly have a reversion clause, you could try negotiating for rights reversion with your publisher anyway—particularly where the book is out-of-print or circulation. Publishers might be willing to assign rights back to you if they have no future commercial plans for your work.

For a great guide on how to later negotiate a reversion of rights, even if the publishing agreement you signed didn’t contain one, check out Chapter VI of Authors Alliance’s guide Understanding Rights Reversion (pp. 70-100). You can also try Columbia Law School's Keep Your Copyrights Guide--in particular, the section on Getting Your Rights Back.

Getting Rights Back By Statute

Alternatively, there is a (somewhat-complicated-to-assert) right that arises automatically under copyright statutes. This is called Termination of Transfer

For works created after 1978, Section 203 of the Copyright Act allows for the termination of transfer after a certain period of time has lapsed. But the conditions to exercise the right are strict.

Here’s the 20,000-mile overview:

  • A 5-year window opens 35 years after you have transferred your copyrights (or, if you have granted certain publication rights, then 35 years after publication or 40 years after the grant of those rights—whichever comes first).

  • During that 5-year window, you can obtain a termination of transfer. But…

  • …to trigger termination within that 5-year window, you first have to have given advance notice to the transferee.  Specifically, the author or certain heirs must issue a notice giving at least two (but no more than ten) years’ advance notice of the termination date. Further, the Copyright Office has issued rules detailing what must be included in such a termination notice.

Because the statutory operation of these provisions is complicated, Authors Alliance and Creative Commons have tried to make it easier for authors to determine whether they qualify for termination of transfer rights. You can get started with their Termination of Transfer Tool. As they explain about the tool:

If a termination right might exist, the tool estimates - based on the information you provide - when the termination right might be excercised. The tool gathers this information along with some basic details about the work that might be useful and relevant to preparing the "termination notice" required to officially start the termination process.

If you’re interested in learning even more about the statutory Termination of Transfer, you can check out:

 

Other Tips

Try an addendum

Not sure what kind of modifying language to use?  Addenda try to do the work for you.

One such useful tool is from the organization SPARC (the Scholarly Publishing and Academic Resources Coalition), which works to enable the open sharing of research outputs and educational materials. They’ve tried to take the guess work out of publishing agreement modifications with their SPARC Author Addendum.

The SPARC Author Addendum is a legal instrument that modifies the publisher’s agreement so you may keep certain rights to your articles. (Also per their website: “The Author Addendum is a free resource developed by SPARC in partnership with Creative Commons and Science Commons, established non-profit organizations that offer a range of copyright options for many different creative endeavors.”)

There are a handful of other “pre-fab” addenda out there. For instance, Science Commons also has a Scholar’s Copyright Addendum Engine which generates a PDF form that you can attach to a journal publisher’s agreement to reserve various rights for yourself.

Keep the UC OA Policies in mind

Remember, too, that as of October 23, 2015, all UC employees are covered by one of the UC open access policies, which reserve rights for UC faculty and employees to make their articles freely available to the public in an open access repository. The policies do this by automatically granting a non-exclusive copyright license to the University prior to any later agreements authors may make with publishers. UC retains those rights regardless of what rights authors may subsequently transfer to publishers. So, even if you transfer rights in an article to a publisher, you’ve already granted the UC a license to make a copy available in the eScholarship repository.

Most academic publishers have already been notified of the UC’s policy in this regard, but if you wish to remind them, the UC Office of Scholarly Communication offers a tool to generate an addendum to your publishing agreement—re-notifying your publisher of the UC’s Open Access policy.

You can use a form tool to create an addendum on the OSC website titled Get a Waiver, Embargo, or Addendum.

 

More Help

We can’t give you legal advice, but we can help you understand issues and find more resources. Please contact us at schol-comm@berkeley.edu.

You might also want to check out these excellent guides: