What authors must consider before signing a publishing contract

To consider

With regard to the publisher’s principle of exclusivity, 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 license agreements. In this case, the author can continue to exercise their rights. However, the contract may provide for a prohibition for the author to republish the work, granting the publisher exclusivity.

For example, the publishing house can request an exclusive license for a determined period of time (embargo period) so that it alone may use the rights, after which the license changes from exclusive to non-exclusive.

In case of papers or contributions to collections it is controversial whether an agreement setting a long embargo period prevails over art. 382 para 3 SCO which sets an embargo period of only 3 months.