LibGuides: Negotiating Author-Friendly Publication Agreements: Things to Watch Out For

Surrender of patent and other intellectual property rights

No publisher requires your patent or trademark rights to publish your work. Patents and other intellectual property are distinct from copyright. If patents are a factor in your research, a statement reserving those rights should be in your publication agreement:

Authors shall retain the exclusive, royalty-free right to any patentable subject matter that may be contained in the Publication.

Governing law and jurisdiction

Some contracts specify a geographical judisdiction for any legal disputes to be determined under, which is generally beneficial to the publisher. Laws and penalties can vary widely between states. Governing law defines which state's laws apply to the contract. Jurisdiction determines which courts will resolve legal disputes.

For UConn authors, claiming Connecticut jurisdiction and governing law is preferable, as local legal authorities can preside over disputes, and authors will not need to take on the added costs and legal uncertainty of having to litigate a case under UK law or in California courts.

Authors should also strike clauses specifying that disputes will be resolved through binding arbitration. The arbitration process can cost significantly more than filing a court case, decisions cannot be appealed, and litigants have no automatic right to discovery. Strike "binding" from any reference to arbitration in your contract. Always reserve the right to go to court.

Sample clause for you to incorporate into your publication agreement:

This Agreement shall be governed by the laws of the State of Connecticut without regard to its principles of conflict of laws. The parties hereby submit to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut.

Merger

In a legal contract, "merger" refers to a signed agreement superseding any prior agreements. This means that if the publisher made you a promise verbally or via email, but the promise isn't explicitly written into the contract, it is not binding on the publisher.

Be cautious with merger clauses. If there is a merger clause in your publication agreement, make sure you get any promises written into your contract before signing.

Sample merger clause:

This agreement contains the entire understanding among the parties, superseding any prior understandings or agreements.