3 Legal and publishing agreements
Introduction
This chapter includes information about what agreements are needed at the beginning of the project and how these can be communicated and explained to all the parties involved.
The purpose of agreements: What they are and why they are needed
Before any open textbook project starts, there will be a number of agreements that must be in place. These agreements will involve the publisher, the authors, the platform hosting the book and any funders or sector support for the open textbook.
These agreements are between parties that are providing services (book platform, publishing), money (grant funders) or copyright content (authors) and set out the responsibilities and obligations of each party to the project.
In the Monash University Library (MUL) project, there were 4 agreements.
- CAUL (Council of Australasian University Librarians) agreement with the University or institution
- CAUL agreements with individual authors (this was called a Memorandum of Understanding or MOU, and the format and wording were decided by CAUL as it related to CAUL grants for some of the open textbook projects)
- Ebook Pressbook Platform agreements or Terms & Conditions for anyone accessing the platform
- Monash agreements with authors (those agreements also incorporated the terms and conditions of the Pressbooks Platform)
The different parties to these agreements were:
- the MUL, which acted as the legal entity for the University as the project was Library-led
- CAUL, which was supporting the project with small grants, organising the ebook platform for the project and providing information and administrative support
- the Pressbooks Platform, to allow hosting and access to the open textbooks
- the authors
- the University, as publisher.
The reason for formally documenting these agreements is to clarify the obligations of all the individuals and organisations taking part in the open textbook project. If there is any dispute, the legally binding terms of the agreements will determine who is responsible.
Under Australian law, the creator/author is the copyright owner of material they create, unless they are an employee or this is displaced by a contractual obligation. In Australia most Universities grant copyright to their academic staff for their scholarly work (e.g. Monash University Vice Chancellor Regulations [PDF, 260 KB], Regulation 23). The open textbooks are not necessarily counted as core teaching material under IP statutes, so they may not be owned by the University. To avoid dispute and ensure that the University has all the rights necessary to publish, an agreement between authors and the University should be used. More specifically, publishing copyright content is a right of the copyright owner, so the University must get the permission of the copyright owner to publish their content.
These agreements should normally be in place before any writing starts because they are the foundation documents of any project.
In addition, the project team should make time to discuss these documents with the authors, and answer any questions at the beginning of the project, to make the process and the obligations clear for all parties.
Content of author agreements
These agreements should contain some basic features.
- The granting of rights in the chapter content from the author to the publisher, sufficient for the publisher to legally be allowed to publish the content. This does not have to be a transfer of copyright from the author to the publisher, but can be a licence to the publisher that includes the required rights to allow the book to be published. Monash relies on a non-exclusive licence to publish, meaning that authors can publish the work elsewhere.
- A clause stating that the finished content will be similar to what was outlined in any proposal made by the author and accepted by the university.
- A clause to allow the publisher to change and edit the content if required and under what circumstances they must consult with authors first.
- A provision stating that the publisher can remove the content if there is any legal issue such as a proven copyright infringement.
- Some indemnities or guarantees stating that the authors agree that their work will be original, of good quality, will not breach any laws and will be delivered by particular deadlines.
- Clauses relating to review or peer review and how long this might take.
- How moral rights will work, especially when university library publishers do not control the platform and users could reproduce material without giving proper credit.
- There may be some specific delineation of roles and responsibilities, but normally this section is not too prescriptive.
- Under what conditions the agreement would be terminated.
With the Monash agreement, the expectations of the authors were set out in plain language in Schedule A. This included details on specific deadlines that were particular to that project. That allowed the body of the agreement to be reused for each project and only the Schedule had to change. Other things mentioned in the Schedule were more detailed obligations of authors, such as named authors having to contribute at least one chapter of the book. It could also include more detail on publisher obligations such as the type of peer review. There were separate agreements for Monash authors and external authors as the Monash authors, being employees, were under different obligations to external authors.
Schedule B was the Pressbook Platform Terms and Conditions.
Timelines
Authors will need time to seek independent legal advice about the meaning of the agreement. This independent legal advice is important because even if the authors are all employees of an institution or university, their interests are not identical to that of the publisher (the University or University Library). It may take longer to explain the agreements to external authors as communication may be through Lead Authors and library staff may not have direct contact with external authors at all. Authors need to be clear about the legal obligations they have once the documents are signed. Independent legal advice may provide the author(s) with more certainty about the responsibility that comes with the agreements and they may have a more realistic view about what is required in the project.
In practice not all authors will get legal advice because they don’t have the time or resources to do so. Authors may ask for information about what the agreements mean. Librarians can provide information, with the help of University Counsel or lawyers, but it has to be made clear to authors that this is not legal advice and that the institution’s Library is representing the interests of the University and speaking from that perspective.
Examples of concerns the authors might have include:
- the meaning of particular provisions
- why they have to give guarantees to the University
- what they would be liable for if there was a complaint about a chapter or a copyright takedown notice
- why they needed legal advice
- under what circumstances could the university publisher make changes to the work.
Communication of author responsibilities
Authors and library staff may need reminding of the differences between publishing open access and the normal scholarly publishing ‘all rights reserved’ that they are used to. This confusion may persist after authors have signed the agreement, but the agreement provides a great opportunity for explaining those differences and setting up the expectations of the project as a whole.
Authors need to be made aware that writing an open access chapter may require extra copyright permissions or involve searching for substitute sources that are Creative Commons licensesd or out of copyright. Therefore, it may take longer than writing a commercial academic chapter or repurposing existing material. The point where authors sign the contract is a good opportunity to stress this and explain the differences between open access publishing and conventional academic publishing that authors may be more familiar with.
Creating a list of practical examples or Copyright Basics for OERs [.docx, 18 KB] for authors and library staff can help everyone understand what is acceptable and what is not. This can be done by using examples from other open textbook projects and building up a collection of issues and problems. This documentation should be ready before the authors sign the agreements and start writing. Real examples could be discussed at early author meetings (if appropriate, considering the privacy of previous authors) and then reinforced by an online copy. If there are examples of what will not be published, authors may have a better understanding of their obligations. If the content of the chapter cannot be published under a Creative Commons licence, unless it is out of copyright (excluding Indigenous material which will have its own protocols and cultural requirements), it should not be published at all.
Tracking agreements
If there are multiple authors, keep a spreadsheet with authors’ names, contact information, whether they have signed the publishing contract and what version of the contract has been signed. If authors are unable to accept their contract, they should contact the relevant University or publisher. It is important to note variations and version your documentation appropriately. Copies of contracts need to be accessible to the person maintaining the spreadsheet so compliance can be checked.
Follow up emails and communication of deadlines for signing contracts will need to be recorded also. Each project will have its preferred way of communicating and recording these details, but it is helpful to have templates to offer lead authors and project managers.
