11. What is the form of a publishing contract?
The conclusion of a publishing contract is not tied to compliance with a particular form (Arts. 380 et seq., Code of Obligations). An exchange of emails or the mailing of the manuscript by the author to the publisher with a request for publication is in legal terms a publishing contract if the publisher publishes the work or at least undertakes to do so. Although the publishing contract requires the consent of both parties, it need neither be in writing nor expressly in any other form, but instead may follow from the conduct of the parties. In practice, legally valid contracts are often concluded even if no written contract is made.
12. What rights are granted in a publishing contract, and what rights are retained by the author?
The decisive factor is the wording of the publishing contract, and freedom of contract applies. Partial rights under copyright can be granted individually. Contractual provisions take priority over the non-mandatory statutory provisions. A distinction must be made between the following cases:
- If copyright is assigned, the author abandons his rights to the benefit of the publisher. For example, if the contract states: “Copyright is granted without restriction in space, time or content.”.
- If copyright is licensed, the author retains his copyright but grants user rights.
- If an exclusive licence is granted, the author undertakes not to grant a licence to the work elsewhere.
- If the author only grants the publisher a simple licence, he is entitled to grant further (simple) licences to other persons or organisations..
Limitations under copyright law apply even if the corresponding rights are transferred. One example is the limitation for internal use (Art. 19 Para. 1 c, Copyright Act); however, this is subject to various preconditions.
Unlike former German law, Swiss law does not forbid the grant of rights with respect to unknown types of use. If “all copyright” was granted before 1995, this also covered the now usual online rights.
Contractual provisions on the use of the accepted manuscript or the publisher’s pdf are valid, as are provisions that permit the author to publish the work on his personal website. However, a repository is not regarded as the author’s personal website.
If the author is entitled to publish his work elsewhere, and if there are no provisions concerning the format, the author’s version (accepted manuscript) can certainly be used. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar. However, there is no established judicial practice on this question of the format.
13. What possibilities are available to me to enforce a right to open-access publication by contract?
If you publish your article in a journal that is sold at a price, but nevertheless would like to retain the right to archive it yourself on a document server, you should if possible only grant the publisher a simple licence (simple user right). You can reserve the right to deposit your publications on a document server,
- by crossing out restrictive wording such as “the exclusive grant of all rights” in the contract before signing it. You should point out these deletions in a letter to the publisher.
- iby supplementing the contract to be signed by adding addenda to the contract or text passages. The best-known addendum is the SPARC Author's Addendum. The Copyright Addendum Engine by Science Commons and SPARC can be used by authors to create automatically in the Internet an addendum in the versions Access Reuse, Delayed Access and Immediate Access, as desired.
Other addenda are available from the MIT Libraries.
A model clause that need not be integrated within the publishing contract document but which can instead also be signed separately as an addendum to the contract (if this is not explicitly excluded by the publishing contract) could read as follows:
Addendum to the contract
- This addendum supplements the publishing contract between the parties and takes priority over any provisions to the contrary in the publishing contract.
- After expiry of six months (in the case of entire books, after expiry of three years) after publication, the author shall be entitled to make this article accessible generally or empower third parties to do so using the internal networks of educational and research institutions, institutional repositories and his personal Internet site.
- If the publisher assigns the rights to the author's work to a third party, the publisher shall ensure that the third party complies with the obligations resulting from the present supplement to the publishing contract.
Another strategy that is likewise already covered by the practice of a number of publishers nowadays is not to agree on a waiting period but instead to lay down that it is not the publisher’s pdf but rather merely an author’s version without publisher’s logo and without the publisher’s page numbers that the author is entitled to make generally accessible.
As a matter of principle, the publisher must consent to these amendments if they are to apply. The mere fact that the publisher has published the work is doubtless insufficient to construe the publisher’s consent to an addendum to the contract that the publisher has never expressly accepted. The author bears the burden of proof that the publisher has given its consent to the corresponding addendum to the contract (Art. 8, Civil Code).
14. When are the publisher’s standard terms of business (STB) binding on the author?
It is a principle of contract law that STB are only binding if they are based on an identical expression of intent by both parties (Art. 1 Para. 1, Code of Obligations). Accordingly both parties must consent; it is not sufficient if for instance the publisher places its STB on a website but fails to mention them to the author. Nor are the STB valid if they are pointed out to the author by the publisher but are in a small, almost illegible script or if the STB are only accessible on the publisher’s website but are difficult to find.
15. A publishing contract lays down that the author is entitled to publish his work on his personal website. Is the repository of the university where he works regarded as his personal website?
Publishing contracts and the publisher’s STB can allow the author to publish his work on his personal website. Such a provision lies within the framework of the freedom of contract and is lawful.
However, if the consent expressly only refers to publication on the author’s personal website, this cannot be interpreted to mean the repository of the university where he works. Such an interpretation would go too far. On the other hand, the author or the operator of the repository is at liberty to set a hyperlink to the author’s personal website and the work accessible there.