Leading by Example: Negotiating Publishing Contracts

One of the primary points that I share when discussing scholarly publishing is the fact that faculty authors should take their publishing contracts more seriously. Open access or not, the terms of those contracts dictate how the intellectual property can and will be used. Most often, I do think that the contracts are designed to promote the author’s work, but in the current climate of lawsuits, fair use claims and digital distribution options, it seems to be worth a second glance to make absolutely sure that the publishers are adapting these contracts to be clear and beneficial to the author’s needs. 

I’ve found myself in the fortunate position to do exactly that. I am so honored to have been invited to include a piece in a forthcoming special issue of a journal (not sure how much of this needs to be secret or not), and we’ve just gotten to the part where we (the editors, co-authors and publisher) discuss the publication agreement. In this instance, the publisher already has a pretty good policy of letting authors retain copyright. So, I went through the contract line by line and am asking for further clarification on the points that don’t make sense. 

Because of my role as the Scholarly Communications Librarian, I am asking my faculty to scrutinize their agreements and clarify all details, and would be remiss not to do the same. I know this is not necessarily a high profile, life changing scientific article, but I have to argue that the terms of these publishing agreements begin to change, on the principle that they will not unless we ask. 


See below:


License to Publish
The contract doesn’t use the language “exclusive license to publish”, but implies it. I’d like clarification. 
“Full term of copyright” – dependent on the law at this time? Can I choose a different term? If so, I’d like to. (Life of author + 70 years is unreasonable in my opinion.)
“right to supply the article in electronic and online forms and systems” – is this an exclusive right I’m granting to the publisher? Would it hinder my rights to do the same?
Appendix 1 – Assignment of Publishing Rights
1.3 – the right to sub license publishing and translation rights to others. If I am granting the exclusive right to publish, I don’t agree with this section. I want the right to sublicense these rights to others also. 
2. Strike the sentence about addendum or memorandum not being taken in consideration with this contract. Many institutions, including mine, are asking faculty to use addenda to negotiate their rights and I want to preserve that right for faculty and colleagues. 
Author Right’s
5. Strike the sentence about these rights not being transferrable to others. If the publisher is allowed to do it, I want to be able to also. 
Author Warranties
7. My accepted article is based extensively on an article published in a important journal in my field, indexed, with an ISSN, which just happens to be published online, open access. Additionally, it was published originally under a CC-BY-NC license. Therefore, I cannot warrant that this hasn’t been “previously published by any other journal or publication nor has been assigned or licensed by me to any third party.” I can only technically agree with the last sentence in this paragraph, that the “Version of Scholarly Record will not be published elsewhere.” I’d like this language to be adapted to say that “I warrant that the Article is my original work, which has been substantially revised, rewritten and adapted under a the terms of a Creative Commons license. The work published here is based on, but different from, that original piece.” Or something. 
Appendix 2 – The Schedule of Author Rights
3. I retain the right to share “but not on a commercial or systematic basis” – please remove or clarify. I can agree with the commercial restriction, but the systematic basis language is confusing, unclear and seems to be not conducive to the culture of sharing that is important in academia. 
Also, In light of the recent GA State case, I’d like the right to share to include the word “Students.” It is important to me that this article be allowed to be used, without cause for legal recourse, in course packs and in CMS systems like Blackboard and Moodle. Although I am a fair use maximalist, I don’t think I should have to rely on that if we could make it plainly stated in this contract.
4. I’d like the right to post the preprint in my institutional repository. The contract currently states the preprint is only on allowable on my institution’s intranet.
5. In regards to the supplied language that will accompany my pre- or post-print, I’d like to stirke the phrase “or such other acknowledgement as we or Taylor &Francis may notify you.” I’ll agree to adding a statement as supplied in the contract, but not that the publisher can change that statement at any time. 
6. The right to post the revised text version of the postprint of the article on the “institution’s network or intranet or website…” Please add “or institutional repository.” We all know what they’re called, lets just say it. 
“systematic external distribution by a third party…” Please clarify. Does this mean I cannot post it on my Academia.edu profile? If so, I’d like this removed.
Please adapt the supplied statement for the post print to read: This is the peer-reviewed version of an article published in…” It’s important to me that readers know this fact about my work. The current statement,” This is an electronic version of an article…” does not adequately reflect the full value of the repository version. 
Strike the language about embargos that Taylor and Francis has now, or may at any time in the future decide to create. Since this doesn’t apply to my article, I’d rather it not be in the contract.
In light of recent changes by NIH to cut funding for authors who do not comply with their public access policy, please remove the language that states “You must not post manuscripts directly to PMC, or other third party sites.” If the company fails to do so, authors may lose funding. Also, I don’t like the inclusion of “other third party sites” as I want to make sure I am allowed to post the article to Academia.edu, ResearchGate and the like.
7. the right to share with colleagues copies of an article in its published form as an electronic or printed offprint or reprint. Please add to “the right to share with students in the context of a classroom setting (secured virtual CMS like Blackboard or traditional physical classroom) copies of an article in its published form as an electronic or printed offprint or reprint.”  
“Systematic basis” again? Please clarify or remove. 
I’d love comments or thoughts. Since the publisher is already leaving copyright with me, am I asking too much by going further? Does this seem like reasonable clarifications and questions? Have you seen similar language in publishing contracts?



2 thoughts on “Leading by Example: Negotiating Publishing Contracts

  1. Pingback: » Supporting Digital Scholarship in Research Libraries: Scalability and Sustainability

  2. I am wondering about Taylor and Francis. Last year I submitted an article to what was originally an open journal that then transferred to Taylor and Francis. I want to post my preproof version on my Researchgate profile so my article is not hidden behind the publisher’s subscription wall. Taylor and Francis says I can’t post a pre-proof in a manner that involves “systematic external distribution by a third party”. Does Taylor and Francis’s rule apply to Researchgate?

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