19 Author rights clauses

Desired Result

An author rights clause seeks to reinforce the rights of authorized users who are themselves authors of scholarly works published by the licensor.  Academic authors are frequently not in a strong position to negotiate the terms of their publication agreements and including an author rights clause in the institution’s license agreement can either reinforce or expand their rights to use their own works that are published with the licensor.

Essentials of the Law

Academic authors will generally sign a publication agreement with their publisher, which the library or institution is not a party to, which will specify what rights they give to the publisher and what rights they retain.  Many academic authors, particularly early-career researchers, are under a lot of professional pressure to publish in particular publications and may not be able to negotiate to retain rights that they nonetheless value.^[1] An author rights clause is one of a variety of strategies that authors and universities can employ to assist in retaining important author rights.

A robust author rights clause can also serve the same function as a “Harvard-style” open access policy^[2] or the federal purpose license used by some federal agencies,^[3] by providing a license to make publications available to the public that takes precedence over any transfer of rights in a subsequent author contract.^[4]

Authors are explicitly made third-party beneficiaries of the subscription agreement for purposes of this clause so that authors, as well as the institution, have the right to enforce this clause.

Desired Language

Authors’ Rights to Use Their Own Work.  Notwithstanding any terms or conditions to the contrary in any author agreement between Licensor and an author who is an Authorized User under this Agreement (“Author”), Authors whose work is accepted for publication within the Licensed Materials during the term of this Agreement shall retain a nonexclusive, irrevocable, royalty-free license to use the work for scholarly and educational purposes, including self-archiving or depositing the work in institutional, subject-based, national or other open repositories or archives (including the Author’s own web pages or departmental servers), and to comply with all grant or institutional requirements associated with the work. For the avoidance of doubt, it is the intent of the parties to this Agreement that Authors are third party beneficiaries of this provision of the Agreement.^[5]

Tricks and Traps

Publishers may object to this clause because it affects the terms of the separate contracts that the publisher forms with authors.  The benefit of including the term in the library contract is that individual authors can rely on it without needing to enter into individual negotiations around it.  Authors are made third-party beneficiaries to this clause to give authors standing to enforce the rights granted in this clause. Most publishers include similar educational and scholarly reuse rights in their author contracts, which you may encounter as an argument that the clause is unnecessary, but can equally well be used to argue that providing additional assurances around the rights in this clause is therefore unproblematic.  Publishers that object to green OA and Harvard-style OA archiving are also unlikely to be persuaded to include this clause.

Importance and Risk

The importance of this clause will depend on your institution’s needs and the likelihood that authors from your institution will be publishing in the licensed content.  If you are at an institution that does not frequently publish in the content that is being licensed, then your time and negotiating power are likely better spent elsewhere.  For publishers that are a frequent venue for authorized use-authors, however, this clause is a tool that can be used to help your authors retain rights to their content.