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How to Negotiate with Publishers — Things to Ask For

Things to include in your publishing contract

Each author should make their own determination of what to ask for when negotiating with a publisher, but this list provides key points to start with. Stringency may not be worthwhile for reviews or other minor works. Some are more for book publishing. Ask for what makes sense to you.

  • A nonexclusive or term-limited license
  • Moral rights, especially the right of attribution
  • Author approval for substantive modifications to the manuscript
  • Liability only for actual breaches that were knowingly committed
  • The right to share the work with others and self-archive a version in a reputable digital repository
  • The right to republish and adapt the work and make use of it in scholarly and teaching activities
  • Reversion of copyright to the author if the book goes unpublished or out of print or if royalties drop below a specific amount
  • Fair use analysis as the basis for reproducing third-party materials
  • Other rights depending on context.

Different types of licenses

Instead of signing over copyright, you can offer a license for use of your work by a publisher.

An exclusive license gives the publisher exclusive rights to your work. Authors cannot license those rights to anyone else. Except where otherwise specified in your contract, you have no more right to make use of your own work than someone off the street does.

A work-for-hire agreement means that the author's employer completely owns any work created by employees as part of their jobs.

A non-exclusive license keeps copyright in your name but authorizes the publisher to use your work under terms stipulated in the publication agreement.

A limited license limits the use of or access to your work. Authors can limit the time period - for instance, you can assign rights to a publisher for one year, after which the rights revert back to you or become non-exclusive. You can also license a part of your bundle of rights (e.g., publication rights) without licensing other unneeded rights (e.g., public performance rights). Both exclusive and non-exclusive licenses can be limited.

To adopt a nonexclusive license, include a statement along the following lines:

The Authors assigns to the Publisher a non-exclusive licence to publish the Work. The author reserves all rights not granted to the publisher in this agreement.

Liability for breaches

Authors should limit their liability only to actual breaches of contract that they knowingly committed. Copyright Transfer Agreements often require authors to assume liability for any legal actions related to the contract. This is in the publisher's interest but not in the author's interest. Publishers should protect authors from frivolous lawsuits, not bill authors for the cost of the defense.

In no event shall either party be liable to the other party for any indirect, special, exemplary, consequential, incidental, or punitive damages in association with this agreement, regardless of the form of action or theory of recovery, including if that party has been advised of the possibility of such damages or losses. (source)

Republication and reuse rights

Part of the bundle of copyright is the right to make derivatives or changed versions of a creative work. Examples of this would be turning an article into a book chapter, incorporating text or graphics into subsequent publications, using portions of a work in other scholarly or teaching activities, and publishing new versions of a work, such as a translation. Transferring copyright to a publisher means losing these rights except what the publisher grants back or what is allowed under Fair Use exemptions. Ensure that your publication agreement gives you the right to republish your work and prepare derivatives, such as translations if that seems useful to you. If the publisher baulks, you can offer to give the publisher exclusive rights only for a specified period.

Following the Work's publication, the Author may use all or part of the Work in the preparation of derivative works; expansion of the article into book-length or other works; incorporation of excerpts, illustrations, and tables from the Work into other publications; and the author's other scholarly and teaching activities, provided that acknowledgement is made of the original publication in the journal.

Moral rights

Moral rights are twofold.

  • Right of attribution: the work must be attributed to the author, or the author may demand anonymity.
  • Right of integrity: the work must not be intentionally distorted or misused in ways that contradict the authors' intent.

While it is customary for authors to be cited and their intent respected, US copyright law does not generally protect the moral rights of authors of textual works. To be enforceable, moral rights must be in your contract.

Each copy of the Work distributed by Publisher will include the following copyright notice: copyright symbol [year of first publication] [author's name]. (source)

Approval of modifications

Publication agreements should state that the author has final approval for any substantive changes made to the manuscript before and after publication. The meaning of what constitutes "substantive" should be clear.

The Publisher shall make no alterations to the Work’s text or title without the Author’s written approval. The Publisher may make minor copyediting changes to conform the style of the text to its customary form.

Fair use

Publishers often require authors to obtain permission, and even personally pay royalty fees, to reproduce even small amounts of text or graphics in their publications. Under the fair use doctrine, minimal or transformative use of third-party materials is permissible without paying. You usually don't need written permission to quote briefly from someone else's book, for example, and don't let publishers tell you differently.

The Author warrants that, where necessary under the fair use doctrine of US law, they have secured written permission from the appropriate copyright owner or authorities for the reproduction in the Work of any text, illustration, or other material

Scholarly sharing and self-archiving

Authors should retain the right to share their work with students or peers and post the accepted manuscript in a reputable digital repository such as arXiv or Open Commons. The best option for authors is to be able to share their work anywhere with no embargo. If you transfer your copyright to a publisher, then you can only do this if the publisher grants this right back to you. If you retain your copyright and give the publisher a non-exclusive right to publish instead, you retain the right to post a version of your work wherever and whenever you wish. Publishers who do grant this right back to authors generally limit it to the final accepted author version, prior to copyediting changes.

The Author may reproduce, distribute, publicly perform, and publicly display the Article in any medium for non-commercial purposes and may authorize others to make any non-commercial use of the Work so long as the Author receives credit as author and the journal in which the Work has been published is cited as the source of first publication of the Article. For example, Author may post the Article on personal or institutional  websites and in other open-access digital repositories. (source)

Reversion of rights

Authors of books should include a copyright reversion clause. If the publisher fails to publish the book, lets the book go out of print, or stops paying royalties due to declining sales or poor marketing, then the author should be able to reclaim copyright.

All rights revert to the Author in the event that the Publisher fails to publish the Work within 12 months of acceptance of the manuscript, or if the book, once published, generates no more $250 in author royalties during any one year.