Making a submission

15/12/2011

Negotiating your publishing contract in order to be able to self-archive

Does the copyright allow you to publish in an open archives system?

What precautions should I take when negotiating with the publisher so as to be able to self-archive my publications?

What assignment conditions should I accept from the publisher?

Exclusivity or not?


Does the copyright allow you to publish in an open archives system?

The open archives system is an alternative to the traditional publishing system. It is not incompatible with copyright, but makes it possible to open up access to scientific publications, while preserving the fundamental rights of the author.

Open-access archiving of scientific publications is supported by all European countries, and is a practice being accepted by an increasing number of publishers.

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What precautions should I take when negotiating with the publisher so as to be able to self-archive my publications?

If you know the basic principles applicable to the assignment of copyright (economic rights) and you have agreed the conditions for dissemination of the publication with any co-authors beforehand, negotiation with a publisher can be facilitated.

The main advice we would give when you are negotiating with an author is to read attentively the commitments you are making (even the small print) and not to hesitate to have any clauses or wording that you do not understand explained to you.

For this, you can contact: archive-ouverte@inria.fr

The second piece of advice would be to keep all the contracts you make with your publishers, so you know what rights you have assigned or kept for each of your publications.

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What assignment conditions should I accept from the publisher?

When I negotiate a publishing contract, I assign my economic rights over one or more clearly defined publications, on one or more identified media, for a limited duration and a defined geographical area. The field of assignment (i.e. the purpose of use) must also be defined.

I can assign exclusive rights, free-of-charge or for valuable consideration.

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  • I never assign my moral rights

I cannot assign my moral rights. The publisher is obliged to respect these rights.

For example, if a clause in the publishing contract provides for the assignment of the right to a name, it is null and void.

Conversely, the refusal of a publisher to publish my article, provided that it gives reasons for doing so, does not constitute an infringement of my right of disclosure, insofar as it is possible for me to disseminate my publication by another means.

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  • I assign my economic rights

Any contract concerning the economic rights over a publication must be made in writing.

Economic rights are structured like a mosaic. I can assign just one or all of them.

However, I must assign sufficient rights to enable the publisher to do its job.

Publishing contracts therefore provide for the assignment of:

* the right of reproduction, which involves committing the work to a medium that allows it to be communicated to the public¸ even if communication to the public does not actually take place. (E.g.: reproduction of an article on a digital medium; * the right of representation, which involves presenting the work to the public by any means, such as by posting a scientific article on a website; * the right to market the publication, either for valuable consideration or free-of-charge.

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  • I authorise the production of a validated publication that will be disseminated.

Publishing contracts authorise the production of a validated publication:

* translate the article or have it translated; * adapt and/or correct the article.

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  • I determine which publication(s) will form the subject of the publishing contract.

I do not assign to the publisher all my future publications without identifying them precisely.

The title, the form, the names of the authors and the conditions for review and validation must be stipulated in the contract with sufficient precision to allow the publication to be identified.

For example, a clause indicating that the author agrees to assign the rights over all pre-prints written between 01/01/2008 and 31/12/2008 is void.

If I am considering making a submission on an open archives system:

I do not hesitate to negotiate this possibility in the publishing contracts. Several options are available to me: Note: In the case of a post-print (the version validated and/or translated by the publisher):

  • I assign the rights over my article non-exclusively; or
  • I specify that I retain the rights over the article in digital format; or
  • I specify that I retain the right to archive the publication in an open archives system, immediately or after a certain delay, after the signature of the publishing contract.

Note : In the case of a pre-print (the unrevised version of the document sent to the publisher):

  • I specify that I retain the right to archive the pre-print in an open archives system
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  • I check that the publication medium is specified..

The publication medium must be specified.

Important: a common practice is to list all present or future publication media. Such clauses are not void, since they are sufficiently clear. However, they are not necessarily advantageous.

It is better to ask the publisher to define the medium or media on which the publication will actually be published (scientific journal, book, CD-ROM).

If I am considering making a submission on an open archives system:

I reserve the right to disseminate the publication in electronic form in a database.

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  • I check the temporal and geographical limits of the assignment.

Temporal and geographical limitation is always necessary.

Concerning geographical limitation, I check that the assignment is guaranteed for the whole world, because, whatever the means of dissemination, in principle it is not in my interests to limit the spread of the ideas contained in the publication (unless there are confidentiality or secrecy issues relating to the protection of know-how, a patent application or defence secrets).

Conversely, it is preferable to set some temporal limitations. However, it is often difficult to negotiate this.

Please note that a clause assigning economic rights ‘for as long as they are protected by law’ is valid as it is sufficiently precise. It means that you are assigning the rights for the duration of your lifetime and for 70 years after your death.

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  • I check the field of assignment and the purpose of the assignment.

The field of assignment, i.e. the use that will be made of the publication, and the purpose of the assignment must be specified in the publishing contract.

A publisher cannot reserve the right to disseminate the publication for all purposes. A publisher should specify the purpose for which the publication is disseminated (in principle, for informative or educational purposes). If I am considering making a submission on an open archives system: I reserve the right to self-archive the publication in an open archives system.

  • I check the terms of payment in the case of a contract for valuable consideration

In a publishing contract agreed for valuable consideration, the author’s remuneration cannot take the form of a fixed sum, and must be proportional to the income generated by the sale or use of the publication, unless the author requests a fixed annuity for a duration to be determined.

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Exclusivity or not?

Assigning exclusive rights means assigning these rights to one person only. This means that the dissemination of the publication in accordance with the conditions (field and purpose of assignment) and limits (publication, medium, temporal, geographical) defined in the contract will not be possible, even in an open archives system.

If I am considering making a submission on an open archives system:

I only grant exclusivity when making rights assignments that are very limited in terms of scope, purpose¸ place and duration.

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