3.4.2 Publishing contract

The publishing contract is governed by the law of obligations (Art. 380 et seq. Swiss Code of Obligations (SCO)). According to these provisions, two contracting parties (author and publisher) mutually agree to a specific performance. The author of a literary or an artistic work agrees to give the work to a publisher for editing. In return, the publisher (e.g. a publishing house) agrees to reproduce the work and to distribute it, Art. 380 SCO. This is the core of the publishing contract – a publishing house must have the authority to reproduce and distribute the work. If a publishing house itself owns the copyright in a work, the publishing house also has the right to reproduce and distribute the work. However, if the authors own the rights in the work, in particular the rights of reproduction and distribution (Art. 10 para. 2 (a) CopA and Art. 10 para. 2 (b) CopA), the authors must somehow give these rights to the publishing houses. They can assign the rights to the publishing house or just allow the publishing house to use the work (grant licences). If the publishing contract does not contain any provisions on the assignment of copyrights or on the acquisition of the rights to use, the rights are assigned to the publisher in this respect and for as long as needed for the performance of the contract – according to the statutory rule of Art. 381 para. 1 SCO.

Obligation to desist vis-à-vis a publisher:

The law of obligations makes provision for exceptions to the obligation to desist vis-à-vis a publisher for newspaper articles and relatively short passages of magazine copy (Art. 382 para. 2 SCO). These works can be published elsewhere at any time. However, this is not a mandatory legal provision and other agreements are also possible. As publishing houses would like to retain exclusivity here too, they often include provisions in their publishing contracts to the effect that even newspaper articles and essays may not be published elsewhere. Finally, the law of obligations makes provision for a restricted obligation to desist vis-à-vis a publisher for contributions to collections or anthologies or relatively lengthy magazine articles (Art. 382 para. 3 SCO). In this case, an author may publish their work elsewhere at the earliest three months after the publication date. This is also not a mandatory legal provision and other contractual agreements can be made.


3.4.2-2 What obligation must always be kept in mind when concluding a publishing contract and where can this be a problem in the academic sphere in particular?

The obligation to desist vis-à-vis a publisher, Art. 382 para. 1 SCO – as long as the editions to which the publisher is entitled have not yet been exhausted, the author may not publish the work elsewhere, in whole or in part, and distribute the work. This can be a problem if a publication should not only be published by a publishing house but also be made available through open access. The publishing house must then give its consent.

3.4.2-3 What must authors consider before signing a publishing contract?

With regard to the obligation to desist vis-à-vis a publisher, authors must consider the following aspects in particular:

1. Do I wish to assign my copyrights to the publishing house, and if yes, which rights and to what extent?

When copyrights are assigned, the publishing house becomes the owner of the rights and the author may no longer exercise these rights to the extent that they have been assigned (obligation to desist vis-à-vis a publisher).

2. Or do I prefer to give the publishing house only the right to use my work?

Here there will be an ‘intermingling’ of the aspects of the law on publishing contracts and the law on licence agreements. In this case, the author can continue to exercise their rights. However, an obligation to desist vis-à-vis the publisher can also be included in the contract. For example, the publishing house can request an exclusive licence so that it alone may use the rights.