When evaluating a journal publishing agreement, there are four main sets of issues that apply to almost every agreement.[1] They are the rights given by the author to the journal, the rights given by the journal to the author, and the commitments of each. Most agreements will cover a number of other topics, but these are the ones that should be covered in every agreement.

Copyright Transfer or License

There are two main methods for a journal to obtain the rights to publish an author’s work: a copyright transfer or a license. In a transfer, the author gives up all rights in the copyright, including all future rights. In a license, the author retains copyright and gives the journal exclusive or non-exclusive rights to the work. Typical rights include publishing in print, publishing in electronic form, and licensing the work to a database aggregator such as HeinOnline, Westlaw, or LexisNexis.

Journals published by commercial publishers or university presses are far more likely to ask for a copyright transfer than student-run law reviews published by law schools.[2] Most student-run journals have moved to a licensing regime. Many of these agreements are based on one of two model publishing agreements: one circulated by AALS in 1998 or a later one promulgated by Science Commons.

The main questions to ask about a transfer or license provision are:

• Is the author transferring copyright or licensing rights to the journal?
• If the author is transferring copyright, what rights are retained?
• If a license, is the license exclusive or non-exclusive?
• How long does and exclusive license last?
• Which rights are licensed and which are retained by the author?

Rights Retained

Depending on who holds the copyright, the author’s retained rights may be explicit in the agreement or implicit. If the agreement gives the journal a non-exclusive license then the author retains all other rights. Although not necessary, the agreement may still explicitly declare certain rights as retained by the author, usually including the right to post the piece on SSRN or an institutional repository.

If the journal receives a non-exclusive license to publish in print and online, then the author may immediately post copies of the article on pre-print servers or institutional repositories or republish the article in print, even if the agreement does not specify that this right is retained.

If an exclusive license is given, the agreement may still carve author rights out of the license. Exclusive licenses are often time-limited and may be confined to print. For example, many agreements specify that the journal receives an exclusive license to publish in print for one year, but receives a non-exclusive license to publish online. In this scenario, the author is free to immediately post the article online, but must wait a year to republish in a print book.

The main questions to ask about retained rights are:

• Is there a right to self-archive?
• If so, where can the article be posted and which version may be posted?
• Is there an embargo period or can the article be posted immediately?
• Does the author retain the right to republish or rework the piece for later publication?

Permissions to Third Parties

Many publication agreements now include a blanket provision allowing the journal to serve as the clearinghouse for use requests from third parties. That provision may or may not include notification to or consultation with the author. It may also include a provision allowing classroom copying without requesting permission.

The main questions to ask about third-party permissions are:

• Is there a blanket license provision?
• Do reprint or reuse requests have to go through the author?
• Are requests necessary for classroom copying or is there a provision allowing it without a request?

Journal Commitments

In addition to the author’s commitments (common ones include assurances that the work is not plagiarized and won’t get the journal sued and agreeing to credit the journal with first publication if the article is republished), the journal makes a number of commitments.

Questions to ask include:

• Must edits be mutually acceptable to the author and the journal or may the journal without the author signing off on the final edits?
• How many print copies does the author receive?
• Will the author receive an electronic copy?
• What author attribution is required when the journal authorizes reprints or republication?

Exclusive license, retained rights:

1. Author's Grant of Rights

1. Except as provided in Paragraphs 1(c) and 2(b), the Author grants to the Journal the rights to reproduce and distribute the Work in the Journal, in facsimile reprints or microforms, as a contribution to a collection published by the Journal, and by means of an Internet or Intranet site over which the Journal exercises effective control, and also by means of a third-party online legal information provider, such as, but not limited to, LEXIS-NEXIS and Westlaw.
2. The Journal's rights provided in Paragraph 1(a) shall be exclusive for a period beginning when this Agreement is executed and ending one (1) year after publication of the Work in the Journal or two (2) years after execution of this Agreement, whichever is shorter, and shall be nonexclusive thereafter.
3. The Journal's right to reproduce the Work includes the right to prepare a translation in any language or to authorize the preparation of such a translation, but such right is subject to the Author's approval of the translator, which is not to be unreasonably withheld.
4. After the Work has been published in the Journal, the Journal shall have the right, after notification of the Author, to authorize another party to reproduce and distribute the Work in the forms specified in Paragraph 1 (a).

e. The Author grants the above rights without claim of royalties or other compensation.

2.  Author's Ownership of Copyright and Reservation of Rights

a. The copyright in the Work shall remain with the Author.

b. The Author retains the rights:

i. To reproduce and distribute the Work, and to authorize others to reproduce and distribute the Work, in any format, to students for classroom use, at or below cost;

ii. To include the Work, in whole or part, in another work of which the Author is the sole or joint author or editor, provided that in either circumstance the Author may not submit a work for publication that is substantially the same as the Work to another periodical without the permission of the Journal sooner than one (1) year after publication of the Work or two (2) years after execution of this Agreement, whichever is sooner, and provided further that such Work identifies the Author, the Journal, the volume, the number of the first page, and the year of the Work's publication in the Journal.

iii. To post the Work, in whole or in part, on an Internet or Intranet site over which the Author has effective control provided that such Work identifies the Author, the Journal, the volume, the number of the first page. and the year of the Work's publication in the Journal.

Source: AALS Model Publication Agreement (at Archive.org).

Exclusive license:

2. The copyright in the Work shall remain with the Author, and nothing in this Agreement shall be construed as an assignment of copyright to Duke University School of Law or the Journal.

3. The Author grants to the Journal, a license to publish, reproduce, and distribute the Work in the Journal and in any and all other media, now or hereafter known. This license shall be exclusive for a period of 18 months from the date of this Agreement, or 6 months from the date of first publication in the Journal, whichever is shorter, and shall be nonexclusive thereafter. The Author retains the right to post the Work on the Author’s web page or any open access online repository.

In all other cases the Author must obtain the Journal’s written approval to publish the Work anywhere else during the period of the Journal’s exclusive license.

4. As part of the license that the Author grants pursuant to paragraph 3, the Author authorizes the Journal to: publish, reproduce, and distribute the Work in LexisNexis, Westlaw, Hein Online, and other aggregated online collections; and to authorize one or more third party, print-on-demand services to reproduce and distribute the Work.

Source: Duke Law School model journal agreement.

Exclusive license, third-party permissions:

1.1 AUTHOR transfers and assigns a royalty-free and exclusive (as provided below) right of first publication in the ARTICLE to the JOURNAL. AUTHOR shall not grant a similar license with respect to this ARTICLE for publication in any other scholarly or professional journal without the express written consent of the JOURNAL. This right shall be exclusive for a period beginning when this Agreement is executed and ending either one (1) year after publication of the ARTICLE in the JOURNAL or two (2) years after the execution of this Agreement, whichever is shorter. The exclusivity of this right during this period may only be altered through the express written consent of the JOURNAL. In all such cases where written consent has been given, the re-publication of the ARTICLE in whole or in part shall give proper credit to the JOURNAL.

1.2 Notwithstanding the foregoing, AUTHOR further grants the JOURNAL the right and authority to disseminate the ARTICLE, in whole or in part (including public dissemination via the JOURNAL website), and to license or transfer such rights, in any and all databases, aggregator services, or aggregated collections throughout the Universe in perpetuity including publication in databases, aggregator services, or aggregated collections including, but not limited to, Westlaw and LexisNexis, HeinOnline, or any computer-assisted research service that it may choose

1.4 AUTHOR further grants the JOURNAL the right to authorize and distribute reprints of the ARTICLE, either individually or in collection in the whole JOURNAL. Upon mutual written agreement of the parties, the ARTICLE may be re-published in another scholarly or professional journal in total or in part. JOURNAL may authorize re-publication of work if reasonable attempts are made to contact the AUTHOR but AUTHOR cannot be reached. The JOURNAL issue shall include a notice stating that the ARTICLE may be reproduced and distributed, in whole or in part, by nonprofit institutions for educational purposes including distribution to students, provided that the copies are distributed at or below cost and identify the AUTHOR, the JOURNAL, the volume, the number of the first page, and the year of the ARTICLE’s publication.

Source: New Mexico Law Review sample agreement.

Editing policy, author copies:

2.1 The Author agrees that the Publisher may edit the Article as suitable for publication in the Journal. To the extent that the Publisher’s edits amount to copyrightable works of authorship, the Publisher hereby assigns all right, title, and interest in such edits to the Author. The Publisher agrees to publish the Article subject to the understanding that the Article will not be published in the Journal unless, in its final form, the Article is acceptable to both the Author and the Publisher.

3.1 The Publisher promises to send to the Author, within a reasonable time after the Article has been published, an electronic copy of the published version of the Article if the Publisher has such a copy within its possession, custody or control at or about the time of publication, and as part of the Publisher’s normal publishing operations. 3.2 If the Publisher is unable to send to the Author an electronic copy of the Article under the terms of paragraph 3.1 of this Agreement, the Publisher promises to send to the Author a copy of the final electronic file supplied by the Publisher to Publisher’s printer within a reasonable time after the Article has been published.

Source: Science Commons Model Publication Agreement.

Creative Commons Open Access Law Program: http://www.sciencecommons.org/projects/publishing/oalaw/

Duke Law Journal model agreements: https://dlj.law.duke.edu/about/submissions/author-agreements/

SPARC Author Addendum: https://sparcopen.org/our-work/author-rights/brochure-html/

New Mexico Law Review: http://lawschool.unm.edu/nmlr/common/docs/sample-nmlr-publication-agreement.pdf

AALS Model Agreement (at Archive.org): https://web.archive.org/web/20060117135933/https://www.aals.org/deansmemos/98-24.html

Tulane Law Review License Agreement: http://www.law.tulane.edu/uploadedFiles/Tulane_Journal_Sites/Tulane_Law_Review/TLR%20License%20Agreement.pdf

Open Access

Open Access has a number of definitions. At a minimum, it includes a mechanism for readers to obtain copies of a work without paying for it, usually open availability somewhere on the internet, whether at the journal's website, the author's institution's repository, or a discipline-specific open repository. It may also include a license allowing others to freely share the work, or for others to adapt or re-use the work. The latter are usually accomplished through Creative Commons or similar licenses.

Gold Open Access

Gold open access means that, at a minimum, authors and readers may freely download, copy, and redistribute a work. More uses may be available depending on the specific license that a work is licensed under. Fully open-access journals are Gold journals. All articles in open-access journals are freely available to anyone on the journal's website. Additionally, the author may post it on a repository, and readers may make copies. A gold open-access journal may require the author to pay an article processing charge (APC).

Hybrid journals are typical subscription journals in which a subscription is required to access articles, but which allow an author to license a single article for open access. Hybrid journals always require an APC. When an article is published open access in a hybrid journal, that article is freely available on the journal's website, the author may post it on a repository, and readers may make copies, but other articles in the journal will require a subscription for access.

Depending on the publisher, individual book chapters may also be published as Gold open access after payment of an APC.

The Charles B. Sears Law Library pays article processing charges for UB Law School faculty members. Faculty members publishing in an open-access or hybrid journal should contact John Beatty or Beth Adelman at the law library for assistance.

Green Open Access

Green open access refers to publisher policies that allow self-archiving. Self-archiving is when an author uploads articles or book chapters to an institutional repository at their school or to a discipline-specific repository like SSRN. Many publishers allow a publisher to self-archive, but limit the conditions under which a work may be posted. Common limitations are on where the work may be posted, when it may be posted, and which version may be posted.

Embargo: Commercial and university presses will usually demand an embargo period of six months to two years following initial publication before an author may post a work on a repository.

Location: Publishers may restrict postings to department websites, institutional repositories, discipline-specific repositories, or any combination. Some designate between commercial and non-commercial repositories, which will usually be defined in the policy. Sometimes posting is restricted generally on commercial repositories, but then specific sites are exempted from the policy.

Version: Gold open access almost always means that any version including the final published version of a work may be freely posted. In Green open access, publishers almost always place restrictions on which version may be posted. Often different restrictions apply to each version. Many publishers allow immediate posting of a pre-print after acceptance or publication, but require an embargo period before a post-print may be posted.

• Pre-Print: The author's initial submitted manuscript, before editing, comments, or peer review.
• Post-Print: The author's final accepted manuscript, after editing, peer-review, and any re-drafting following review, but before copy-editing or typesetting. Also called "accepted manuscript."
• Final: The final published version after copy-editing and typesetting, as it appears in the journal. Also called "version of record." Commercial publishers almost always require an APC and, therefore, Gold open access, to post the final version on any online server.

Law Reviews

Student-run law reviews often allow self-archiving of articles by the author. They also, increasingly, offer free full-text downloads of current volumes on their websites. A few have signed on the Science Commons Open Access Law Journal Principles, which includes commitments allowing self-archiving, allowing authors to use a Creative Commons license, providing an electronic copy to the author for archiving, and either using the Science Commons model agreement or posting their standard agreement. Of those few law reviews who have signed the agreement, many have not posted their publication agreements and some do not mention anywhere on their website that they have signed on to this agreement. Of law reviews that have not signed on to the agreement, several have publicly-posted open access policies. But unfortunately, although most law reviews will allow self-archiving, it is necessary to refer to the publication agreement to find the policy.