Retaining Rights in your Scholarly Works

Based on Reserving Rights of Use in Works Submitted for Publication: Negotiating Publishing Agreements, a Project of the IUPUI Copyright Management Center, directed by Kenneth D. Crews, Associate Dean of the Faculties for Copyright Management; see www.copyright.iupui.edu.

Why Care?

Often restrictive publishing agreements transfer copyright ownership or grant an exclusive license to the publisher. This can prevent you or BYU from using your work in many useful ways, such as (1) making copies for teaching, (2) posting portions of your work on personal or BYU web sites or other online repositories, or (3) using your work in other research activities within a fast-changing technological environment.

You gain desired flexibility and freedom to make your work more widely available by protecting rights to your intellectual work. Clarify before you sign the agreement.

The following will assist you when reviewing publishing agreements and when necessary, negotiating with publishers to retain needed rights.

The BYU Intellectual Property Policy states in part:

The university retains ownership rights to all technical works but relinquishes ownership rights to the developer(s) of creative works when "nominal" use of university resources are involved in the production of the intellectual property… The conditions that differentiate between nominal and substantial use of university resources are discussed in sections IV.A and IV.B of the policy.

As owner of your creative works, you are in the best position to negotiate the needed rights when you review/sign the publishing agreement. Consider the following points.

  1. Contemplate and solidify your present and future uses of your work.

    Many publishing agreements grant most, if not all, rights in the work to the publisher. Since publishers are unlikely ever to need all the rights they are seeking, authors should request the necessary rights for themselves and their educational institutions.

    At a minimum, authors should attempt to retain the right to use their work for their classroom, distance teaching, lectures, seminars, institutional repositories, other scholarly works and professional activities. See Addendum A or Addendum B for suggested wording.

  2. Review the publishing agreement and determine what uses of your work it allows or does not allow.

    Understanding the rights that you may be giving away to the publisher is important. Take sufficient time and "think through" the important uses you or your institution would like to make of your work; contact the Copyright Licensing Office for any needed assistance.

  3. NEGOTIATE—Request that you retain the rights for your personal and institutional use.

    Do not be afraid to negotiate! Publishers are interested in your work; otherwise they would not be seeking your agreement to publish it. More and more, authors/creators have been successful in reserving reasonable terms of use of the work for themselves through open negotiations.

    If the publisher refuses to negotiate, try to discover the reason. Perhaps you have asked to retain the right to do something that legitimately threatens the viability of the publisher's use of the work. Weigh your options: consider negotiating fewer rights for yourself, consider another publisher, or accept the agreement as it stands—if you must.

    Amendments to the publisher's agreement may take place in two ways. One way to amend the agreement is to strike through unfavorable language and replace it with, or add, new language directly in the proposed agreement. Perhaps an easier way is to supplement the agreement with a separate document that includes terms superseding any contradicting terms within the proposed agreement.

    See the recommended language for amending publisher agreements in Addendum A and B: Addendum A is specific, and you may add or drop individual items during the negotiations. Addendum B is more general and does not attempt to specify exact activities. Use the version that best meets the needs of your situation.

  4. Complete and sign the agreement.

    Be sure to obtain confirmation that the publisher has received and accepted your amendments to the agreement. Many times, the publisher sends the agreements to the author already signed by a representative of the publisher. The publisher must approve changes you make to the agreement after the publisher has signed it. Otherwise, there is no "meeting of the minds", and therefore, no valid agreement. Be sure to get written approval from the publisher for any such changes.

    Keep a copy for your records! Too often authors need to accurately recall or show evidence as to who really holds rights to the first publication. A well-organized and complete record of these publishing agreements is very useful for future situations.

  5. Protect and Use Your Rights!

    If you remain the copyright owner, consider registering your copyright claim. For more information see Copyright Registration.

    If you retain rights to use the work for both you and your institution's education and research purposes, make the most of those rights for your benefit and the benefit of your readers.

  6. Brochure Available!

    You can print a full-color brochure from this link: Where Have All My Rights Gone? Retaining Author Rights. Printed copies of the same brochure are also available from the Copyright Licensing Office, 3760 HBLL, 422-9339.

  7. Multimedia Presentation—Author Rights.

    Click here to view a multimedia presentation produced by the University of Minnesota explaining author rights.

  8. Information for implementing NIH Public Access Policy.

    Click here for a brief overview of the revised policy on enhancing public access to publications resulting from NIH-funded research.

    Click here to access the NIH Public Access website; includes information explaining the submission process, list of Journals that automatically submit to PubMed Central, FAQ, and other policy and procedure details.

    Click here for more complete information from the Association of Research Libraries (ARL) in implementing the NIH Public Access Policy.

    Click here to download the white paper: Complying with the National Institutes of Health Public Access Policy: Copyright Considerations and Options, Feb 2008.