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…decided to write my own…

In a previous post, I proposed that open-access journals use the CC-BY license for their scholar-contributed articles:

As long as you’re founding a new journal, its contents should be as open as possible consistent with appropriate attribution. That exactly characterizes the CC-BY license. It’s also a tremendously simple approach. Once the author grants a CC-BY license, no further rights need be granted to the publisher. There’s no need for talk about granting the publisher a nonexclusive license to publish the article, etc., etc. The CC-BY license already allows the publisher to do so. There’s no need to talk about what rights the author retains, since the author retains all rights subject to the nonexclusive CC-BY license. I’ve made the case for a CC-BY license at length elsewhere.

Recently, a journal asked me how to go about doing just that. What should their publication agreement look like? It was a fair question, and one I didn’t have a ready answer for. The “Online Guide to Open Access Journals Publishing” provides a template agreement that is refreshingly minimalist, but by my lights misses some important aspects. I looked around at various journals to see what they did, but didn’t find any agreements that seemed ideal either. So I decided to write my own. Herewith is my proposal for a model OA publication agreement.

I had various goals for the agreement to achieve (enumerated here with the paragraph number that achieves each goal). First and foremost, the agreement should lead to a CC-BY license in the article being granted (¶2), so that the journal and the general public as well get broad use and reuse rights to the text — though all other rights in the work should stay with the authors (¶4). The attribution aspect of the CC-BY license makes sure that the authors get credit for their work, but the journal should get some credit as well for having provided the services culminating in the article’s publication (¶3). Those services may include editorial revision of the article. Of course, authors should have say in any changes made to the article, and the license should unambiguously cover not only the submitted manuscript, but the final published version of the article as well, even in the (unlikely) case where the publisher’s changes could be construed as constituting a separately copyrightable derivative work (¶5). The authors have a responsibility in this contract as well, to act in good faith: the article should be original, proprietary, and legal (¶6); if there are, in fact, multiple authors, a single one should be able to act as corresponding author on behalf of all (¶1). Finally, the agreement should only have force if the publisher actually publishes the article in a timely fashion (¶7).

Some of the provisions of the agreement cover issues that are apposite at the time of submission — especially the requirements in ¶6 of originality and single submission — other provisions upon acceptance — in particular, the license provisions. The agreement is intended for use at the time that an article is accepted for publication. In a sense, the authors’ warrants of ¶6 are thus a bit late in coming. But I expect there’s little problem in this. It’s unlikely that authors will go through the entire process of submitting an article that violates ¶6 merely because they were not aware that journal submissions were required to be original, proprietary, and legal, especially if the journal posts those requirements in its submissions policy on its web site along with a copy of the publication agreement that authors will eventually be required to sign. The alternative is to rephrase the agreement with much of it moved to a kind of conditional language (“If the article is accepted for publication, you will…”) and have it signed upon submission rather than acceptance. Personally, I prefer the simplicity of the approach taken here.

The signature block at the end is formatted as if the agreement will be signed by the corresponding author and countersigned by the publisher. These days, such signature is likely to be handled through a clickthrough web form. The signature block can be updated accordingly for that context, for instance, by placing a radio button in front of the statement “I HAVE READ AND AGREE FULLY WITH THE TERMS OF THIS AGREEMENT” and a Submit button at the end.

Journals should feel free to make use of this model agreement in any way they see fit; it is, after all, itself provided under a CC-BY license. (I myself benefited from language in the JMLR publication agreement.) If you do make use of the agreement, please let me know; I’d love to track if and where it gets used. And of course I’d be interested in any suggestions that people have for its improvement.

(Thanks to Michael Carroll, Jonathan Hulbert, Sue Kriegsman, Peter Suber, and Caroline Sutton for their advice on earlier drafts of the agreement and post. However, the wording of the agreement and opinions expressed in the post are my own; they bear no responsibility for the result.)


Publication Agreement

[This is version 1.2 of 8 January 2014. It is made available under a Creative Commons Attribution 4.0 License. The license's attribution requirement can be satisfied by including language conveying at least the following: “The language of this publication agreement is based on Stuart Shieber’s model open-access journal publication agreement, version 1.2, available at http://bit.ly/1m9UsNt.” If you intend to use this agreement, I request as a courtesy that you notify me so that I can track usage.]

This is a publication agreement (“this agreement”) regarding a written manuscript currently entitled […] (manuscript title) (“the article”) to be published in […] (“the journal”). The parties to this Agreement are: […] (the corresponding author on behalf of any other authors, collectively “you”) and […], (“the publisher”).

  1. By signing this form, you warrant that you are signing on behalf of all authors of the article, and that you have the authority to act as their agent for the purpose of entering into this agreement.
  2. You hereby grant a Creative Commons copyright license in the article to the general public, in particular a Creative Commons Attribution 4.0 International License, which is incorporated herein by reference and is further specified at http://creativecommons.org/licenses/by/4.0/legalcode (human readable summary at http://creativecommons.org/licenses/by/4.0).
  3. You agree to require that a citation to the original publication of the article in the journal be included in any attribution statement satisfying the attribution requirement of the Creative Commons license of paragraph 2.
  4. You retain ownership of all rights under copyright in all versions of the article, and all rights not expressly granted in this agreement.
  5. To the extent that any edits made by the publisher to make the article suitable for publication in the journal amount to copyrightable works of authorship, the publisher hereby assigns all right, title, and interest in such edits to you. The publisher agrees to verify with you any such edits that are substantive. You agree that the license of paragraph 2 covers such edits.
  6. You further warrant that:
    1. The article is original, has not been formally published in any other peer-reviewed journal or in a book or edited collection, and is not under consideration for any such publication.
    2. You are the sole author(s) of the article, and that you have a complete and unencumbered right to make the grants you make.
    3. The article does not libel anyone, invade anyone’s copyright or otherwise violate any statutory or common law right of anyone, and that you have made all reasonable efforts to ensure the accuracy of any factual information contained in the article. You agree to indemnify the publisher against any claim or action alleging facts which, if true, constitute a breach of any of the foregoing warranties or other provisions of this agreement, as well as against any related damages, losses, liabilities, and expenses incurred by the publisher.
  7. This is the entire agreement between you and the publisher, and it may be modified only in writing. It will be governed by the laws of […the Commonwealth of Massachusetts…]. It will bind and benefit our respective assigns and successors in interest, including your heirs. It will terminate if the publisher does not publish, in any medium, the article within one year of the date of your signature.

I HAVE READ AND AGREE FULLY WITH THE TERMS OF THIS AGREEMENT.

  • Corresponding Author:
    • Signed: _________________________
    • Date:
  • Publisher:
    • Signed: /signed by the publisher/
    • Date:

14 Responses to “A model OA journal publication agreement”

  1. Kevin Hawkins Says:

    I find clause 3 of this model agreement troubling. This is an agreement between an author and publisher, and clause 3 is binding on the author. But the author is not in a position to require that everyone in the world cite the original publication. Perhaps it’s only meant to apply to the author’s use of his/her own works, not to anyone else’s? If so, it should be made more explicit.

    Perhaps, though, the publisher intends to add a statement to the published version of the article saying that it’s licensed under a CC-BY but with the additional requirement that anyone using it cite the original publication. If you do that, you’re imposing an additional term beyond those in CC-BY, so claiming the article is made available under CC-BY is now a bit of a fib.

    Since a publisher representative will also sign the agreement, you might want to require an action of the publisher, such as actually publishing the work in the journal.

  2. Charles Oppenheim Says:

    Very good, but Clause 2 should be amended to read “You hereby grant the publisher a Creative Commons Attribution 4.0 International License….” I particularly liked Clause 5!

  3. Stuart Shieber Says:

    Kevin,

    Thanks for your comments. The agreement was intended as a model, but some may want to make changes for their purposes. Still, the particular concerns you raise are, I believe, adequately handled in the current language. Here’s why I think so.

    I find clause 3 of this model agreement troubling. This is an agreement between an author and publisher, and clause 3 is binding on the author. But the author is not in a position to require that everyone in the world cite the original publication. Perhaps it’s only meant to apply to the author’s use of his/her own works, not to anyone else’s? If so, it should be made more explicit.

    Authors certainly are in a position to so require others, simply by relaying the attribution requirement. (Of course, authors are in no position to police compliance with the requirement, but that’s another matter, and they are not required to do so by the agreement.) That could be done simply by the author not deleting the appropriate attribution information that the publisher itself provides in the original article. Nonetheless, this clause was intended as protection for the publisher. If the publisher doesn’t want that protection, it can be dropped.

    Perhaps, though, the publisher intends to add a statement to the published version of the article saying that it’s licensed under a CC-BY but with the additional requirement that anyone using it cite the original publication. If you do that, you’re imposing an additional term beyond those in CC-BY, so claiming the article is made available under CC-BY is now a bit of a fib.

    That’s exactly what I had in mind. Such a requirement does not go beyond CC-BY, which already specifies in Section 3.A.1.a.i that licensors may require “identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor”. (Emphasis added.)

    Since a publisher representative will also sign the agreement, you might want to require an action of the publisher, such as actually publishing the work in the journal.

    That’s effectively what the last sentence of paragraph 7 does.

  4. Stuart Shieber Says:

    Charles,

    Very good, but Clause 2 should be amended to read “You hereby grant the publisher a Creative Commons Attribution 4.0 International License….”

    I don’t think so. The CC license is not granted to the publisher but to the general public (so that the publisher, and others, can avail themselves of the license).

    I particularly liked Clause 5!

    Me too. This is the one part of the agreement that I’ve never seen any publication agreement include. It ought to eliminate any worry about published versions being derivative works, and hence requiring separate licenses.

  5. Tibor Tscheke Says:

    Hi Stuart,

    this is a great proposal. I do think, that it is a viable agreement and it would be beneficial if adapted by different publishers.

    We at ScienceOpen.com will use this agreement for our pblications.

    Thanks for your work!

    Kind regards

    Tibor

    outreach for ScienceOpen: @Science_Open
    personal: @tigracc

  6. Micah Vandegrift Says:

    I think this is a great template. One thing missing that could be included, under section 6:

    If the Work contains any material for which the Author does not hold copyright, and for which the Author has not obtained rights to distribute or make available, use of that material is being claimed as fair use.

    This is included in the standard contract we begin with when working with our journals. It was recommended by a intellectual property law prof here at Florida State.

  7. Stuart Shieber Says:

    Micah ,

    I take it that the intent of this addition to the warrants in Paragraph 6 is that the author would additionally be warranting that the use of the specified material falls under fair use. The idea would be to protect the publisher in case someone came along later and claimed infringement for the material by being able to pass the buck to the author. (“Not our fault. The author told us that it was a fair use.”)

    If that’s right, I’d think some wordsmithing would be useful. First, the use of the passive obscures that it is the author who is to be put on record as making the claim of fair use. But more fundamentally, the warrant by the author shouldn’t be the author’s claim of fair use (that’s trivial to provide), but the fair use itself. So, it might be better to rephrase as “If the Work contains any material for which the Author does not hold copyright and for which the Author has not obtained rights to distribute or make available, use of that material is a fair use.”

    Such a provision might be a good thing to add, depending on how much additional protection it actually provides to the publisher. And here I have to defer to the experts. Any copyright lawyers want to weigh in?

  8. Kevin Hawkins Says:

    Ah, I had missed the phrase “and any others designated to receive attribution”. That does cover what you’re looking for. So I retract my objections!

  9. Peter Hirtle Says:

    The publishing templates found at http://wiki.publishing.umich.edu/Publishing_Agreements#Section_B:_Sample_agreements_between_authors_and_publishing_partners and used by Michigan still have some advantages over this. For example, they note that some day there may be better licenses than the Creative Commons license, so they leave the option open for replacing it.

    I am not sure Clause 5 is needed, and it may be dangerous. The changes that a publisher make should never be original enough to warrant their own copyright protection, and it is confusing to suggest they might.

    I really don’t like the indemnification clause found in 6(c). If a lawsuit results, it is going to be because the aggrieved party believes that the publisher has deep pockets. The publisher is likely to have insurance to protect itself in such an action, but the author will not. If an author’s actions are egregious, the publisher can bring action against the author for failing to live up to the warranty.

    Clause 7 adds legal mumbo-jumbo that is not needed. I do like the deadline for publication, however. That is a clear improvement over the Michigan article template.

  10. Matt Austin Says:

    Stuart and Micah,
    The “fair use” provision just doesn’t work that way. As an affirmative defense to infringement, disputes about fair use can only be resolved upon the decision of a court on a case-by-case basis. The only exception is if the copyright holder (“owner”) expressly agrees that it considers a particular use to be covered by fair use, which may then preempt an infringement action. When we talk about “fair use” prospectively, it can never be more than just a claim.

    An author who submits an article containing material under copyright by a third party may BELIEVE it to be a fair use, but the only person who can contractually agree that it IS a fair use is the actual copyright holder. This means that the “wordsmithed” version proposed means either that the author has obtained permission or a court order, or that s/he is making an untrue representation in a contract, which is bad news for the author.

    Technically, term 6c already addresses this, putting the author on the hook for any use of third party copyrights without permission if that use turns out to be an infringement. However, Micah is correct that journal publishers do care a great deal about this.

    Also, there are some overall drafting and language issues that might be worth addressing in this model agreement to tighten it up (defined terms not capitalized, unusual phrasing, mixed-purpose terms).

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  12. Stuart Shieber Says:

    Peter,

    Very useful comments. Thanks for pointing out the Michigan agreement. I hadn’t seen that before. It looks like a model approach as well, differing in just a couple of ways.

    It certainly satisfies my desiderata of paragraphs 1, 3, part of 4, and 6, though not 2, the rest of 4, 5, and (as you note) 7.

    The biggest difference is that it does not lead to a grant of an open license to the general public, taking a different approach. The author provides what, as far as I can tell, is a nonexclusive license to the publisher to exercise all of copyright (but why does it take 136 words to do so?), so that the publisher can then grant a CC-BY or other license to the public. This has the advantage, as you say, that if in the future some other license would be preferable to use, the publisher can modify its grant to the public without needing to get further permission from the author. I’d think the odds that a CC-BY will be determined to be insufficiently broad at some time in the future, thereby necessitating the publisher to grant an even broader license, seems like a slim prospect at best. On the down side, the author has no guarantee that the publisher will actually use the rights to grant a broad license. But this is probably not a big deal, for if the publisher reneged on the implicit promise of a CC-BY license in A.3, it would get terrible PR.

    Paragraph 5, which makes sure that the publisher’s version falls under the CC license as well, may be (indeed probably is) unnecessary. Nonetheless, authors often act as if they think they can’t distribute publisher versions because of some magic IP dust the publisher sprinkles on it, so clarity may not be a bad thing. You’re exactly right that “The changes that a publisher make should never be original enough to warrant their own copyright protection.” That’s why Paragraph 5 has “The publisher agrees to verify with you any such edits that are substantive”, so that the author is a participant in any nontrivial changes, the kind that could conceivably (though even still not necessarily) have copyright implications.

    Similarly, I’d be happy to drop the indemnification clause of Paragraph 6, though some journals might not want to do so.

    Finally, I would happily drop the extra two sentences of “legal mumbo-jumbo” of Paragraph 7 that go beyond what is in Michigan’s Paragraph E, namely “It will be governed by the laws of […the Commonwealth of Massachusetts…]. It will bind and benefit our respective assigns and successors in interest, including your heirs.” I inherited that from other agreements, but if the lawyers say it’s not necessary, it’s gone.

  13. Stuart Shieber Says:

    Matt,

    This is exactly what I thought. All that adding the “fair use” clause does is have the authors warrant that all the stuff that doesn’t have explicit permission is a fair use. They would only sign if they believed it to be so, and they’d be on the hook if a court decided otherwise. But as you say, even without the fair use clause, the same would happen. If some material wasn’t explicitly licensed and a court decided it wasn’t a fair use, 6c already would have the authors on the hook.

    The defined terms not being capitalized was based on conversation with legal advisers that capitalization is not required (and I always thought it a bit hokey). Is there some legal benefit to the practice? And I appreciate your not wanting to clutter the comment thread with wordsmithing, but I’d happily receive recommendations “offline” for fixing unusual phrasing and mixed-purpose terms too.

    Thanks!

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