Occasionally I find myself in the highly fortunate position to be asked to contribute to a scholarly journal without having any professional incentive to do so. This is exciting because I’m as flattered as anyone when someone else is interested enough in my writing to want to republish it. It also gives me a chance to come into contact with the kinds of contracts that academic publishers offer their contributors. To put it mildly, these contracts are insane. In exchange for an unpaid contribution, the contracts expect the authors to give the publishers all sorts of exclusive rights and to indemnify the authors against any sort of infringement lawsuit.
Fortunately for me, and unlike so many people who are confronted with these types of contracts, I have no professional incentive to publish in academic journals. That makes me free to push back against the contract terms. The worst thing that happens is that the publisher decides I’m more trouble than I’m worth - it isn’t going to knock me off tenure track or anything.
As what I hope is a service to others who are confronted with these contracts without the ability to walk away, I wanted to publish the version of the contract that the publisher (Kluwer in this case) agreed to pretty easily. I obviously can’t guarantee that they would make the same concessions again (although it really didn’t take much to get to this point). At a minimum, it might give you the ability to push back when you hear that these terms “cannot be changed.”
All of the struck terms were in the original but are not in the signed contract. I XXXX’d out the terms of the work because it isn’t really my place to announce the work in advance.
The undersigned (hereafter called the Author) and Kluwer Law International, XXXXXXX, The Netherlands, (hereinafter called the Publisher)
whereas the Publisher wishes to publish the Work entitled “XXXX ” under the editorship of YYYYYYYYY (hereinafter called the Editor)
whereas the Author has declared his willingness to write the contribution provisionally entitled (hereinafter called the Contribution) declare that they have agreed as follows:
1. The Author agrees to write the above mentioned contribution as agreed with the Editor and/or the Publisher.
2. The Author hereby grants to the Publisher the
exclusiveright to publish, sell, give access to and license the use of the Contribution named above in all countries and all languages, in whole or in part, including any translation, abridgement, substantial part, modification or revision thereof, in book form, in a database on its own or with other works and in any form, including, without limitation, mechanical, aural, electronic and visual reproduction and publication, electronic storage and retrieval systems, including delivery of or giving access to the Work by electronic networks, and all other forms of electronic or electro-magnetic publication now known or hereinafter invented, throughout the world, for the full period of the respective intellectual property rights (including copyright) and all renewals and extensions thereof.The Author hereby authorises and mandates the Publisher to register (at the Publisher’s cost) this licence in any applicable register for intellectual property rights and to take any action and instigate proceedings against infringement of copyright or other intellectual property rights in the Contribution and to use the Author’s name as a party after informing the Author. The Author is hereby licensed by the Publisher to the rights reserved as specified at the end of this agreement.3. The Author warrants and represents that to the best of his knowledge the Contribution does not infringe upon any copyright or other right(s), and that it does not contain infringing, libellous, obscene or other unlawful matter, that he is the sole and exclusive owner of the rights herein conveyed to the Publisher, and that he has obtained the necessary permission from the copyright owner or his legal representative whenever a passage from copyrighted material is quoted or a table or illustration from such material is used.
The Author will indemnify the Publisher for, and hold the Publisher harmless from, any loss, expense or damage occasioned by any claim or suit by a third party for copyright infringement or arising out of any breach of the foregoing warranties as a result of publication of the Contribution.The Contribution shall be delivered to the Publisher free of copyright charges.4. The Author warrants and represents that the Contribution to the Work has not been previously published elsewhere, or that if it has been published in whole or in part, any permission necessary to publish it in the Work has been obtained and provided to the Publisher together with a statement of the original copyright notice.
5. The Author agrees to be named as author of his Contribution. The Author declares and warrants that any person named as co-author of the Contribution is aware of that fact and has agreed to being so named. The Author signs this agreement also on behalf of and in the name of each co-author, who hereby agree with this agreement in full, in particular Clause 3 and 8. The Author warrants and represents that he is empowered by any co-author to represent this co-author in signing this agreement in their name.
6. The Author shall receive for the rights granted in Art. 2 a free copy of the (updated) Work plus an electronic file of his (updated) contribution.
The Author warrants and represents that any personal use of the contribution by the Author will be limited to the use permitted by the rights reserved to the Author as specified at the end of this agreement.The Publisher shall clearly state the name of the Author in the Work.7. The present agreement also applies to future updates to the Contribution by the Author. The Author agrees that the Publisher may request to have a third party take over the writing and updating of the Contribution.
The Author will comply with said request and will cooperate with the new contributor for transfer of his responsibilities with respect to the Contribution. The Author agrees that if the revision has not substantially been prepared by the Author, the Publisher is not required to mention the name of the Author in or in relation to the Work. With respect to such revision the Author waives his moral rights to the extent allowed by law.8. The present agreement can be terminated by the Publisher without prior notice if the Author fails to deliver the Contribution according to the agreed deadline. Termination shall not affect the rights and obligations accrued prior to termination. Any provisions of this agreement which by their nature extend beyond termination shall survive such termination.
9. This agreement is governed by Dutch law. Any dispute that may arise shall be brought before the applicable court in Amsterdam in The Netherlands.
/s/
RIGHTS RESERVED TO THE AUTHOR
The Publisher confirms that the following rights are reserved to the Author:
• The right to make copies and distribute copies (including via e-mail) of the Contribution for own personal use, including for own classroom teaching use and to research colleagues, for personal use by such colleagues, and the right to present the Contribution at meetings or conferences and to distribute copies of the Contribution to the delegates attending the meeting.
• The right to post the full Contribution on the Author’s personal or institutional web site or server, at any time, provided the site has protected/restricted access and acknowledgement is given to the original source of publication; the right to post the full Contribution on any web site provided 3 months have passed since the Contribution was originally published.
• For the Author’s employer, if the Contribution is a ‘work for hire’, made within the scope of the Author’s employment, the right to use all or part of the Contribution for other intra-company use (e.g. training), including by posting the Contribution on secure, internal corporate intranets.
• The right to use the Contribution for his/her further career by including the Contribution in other publications such as a personal dissertation and/ or a collection of own articles provided acknowledgement is given to the original source of publication.
The Author’s rights to reproduce and distribute the Contribution are subject to ensuring that the publication by the Publisher is properly credited[1] and that no commercial use of the publication is involved[2].
The rights reserved to the Author (as stated above) are automatically granted upon acceptance of the contribution for publication and upon signature of this agreement by the Author. Any other rights or personal use not expressly stated in this document are not excluded but may be subject to time limitations or payment of fees. In such cases, the Author has to contact Kluwer Law International to obtain formal permission[3].
[1] “Reprinted from (name of publication), (volume no.), (issue number), (date of publication), (page range), with permission of Kluwer Law International.”
[2] Commercial Purposes includes the use or posting of articles for commercial gain including the posting by companies or their employee-authored works for use by customers; commercial exploitation such as directly associating advertising with such postings; the charging of fees for document delivery or access; or the systematic distribution to other people (other than known colleagues), whether for a fee or for free.
[3] For information on permission guidelines and requests please visit our website: www.kluwerlaw.com.