Deciphering the Read & Publish agreements

With the advent of new technologies and rise of digital mediums, the dynamics of publishing industry are changing briskly. One such change is the increasing use of Read & Publish (hereinafter referred to as ‘R&P’) agreements vis-à-vis traditional agreements in the publishing industry. Shilpi Mehta Nanda, Founder & Managing Partner, ZEAL Attorneys, shares more.

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R &P agreement is an alternative to the traditional subscription model. It allows publishers (in many cases, libraries) to purchase both content and open access publishing with yearly fee. In other words, R&P agreement is an agreement in which the publisher receives payment for reading and publishing packed into a single contract. As a result, the Author does not have to pay for the article processing fees (APC) and the reader does not have to pay for an individual article or journal subscription. The said model is often facilitated by Libraries.

Benefits for libraries…

Since time immemorial, libraries have been considered custodian of knowledge and have contributed immensely in the creation, dissemination and preservation of the same. Libraries often prefer R&P agreement to avoid paying heavy subscriptions and publishing fees and are moving towards open access publishing ecosystem.

Benefits for authors…

R&P agreements are most beneficial to libraries and its members while simultaneously benefitting the authors and researchers. While the purpose of libraries is to freely (or at very less cost) disseminate literature, and the purpose of copyright law is to preserve the exclusivity over the literary work; libraries often help in preserving the literary work (even after expiry of the term of copyright) and make it freely accessible for bonafide and genuine use by the general public at large.

Drafting an R&P agreement…

Some of the important considerations to be kept in mind while drafting/signing the R&P agreement. The first and the foremost question which arises while publishing any agreement is the ownership on the literary work.

Further, the questions like duration of the license as well as the exclusivity arrangements with the publisher/libraries are the common questions to be deliberated upon. Is the author giving the publisher only publication/distribution rights or translations rights are included in the bundle as well? Is right to create derivative work accompanied with the publication/ distribution rights? These questions are answered on case-to-case basis depending upon the negotiation power and skill of the parties negotiating.

Rights of an author…

Author generally retains copyright ownership in their literary work in the R&P agreement and can reproduce/republish the same any number of times without the need of seeking any permission from the publisher/library. In most of the R&P agreement, Author remains the owner and gives right to the libraries to publish their work for a limited duration. It is important for author to understand the difference between his economic rights and moral rights. The author may give any or all of the economic rights to the publisher – right to publication, reproduction, distribution, sale, offer for sale etc, he will still hold the moral rights over the work, that is, the right of attribution and rights against distortion and mutilation of the work.

Rights of a publisher…

While drafting agreements it is important to note that from the Publisher’s perspective, an exclusive license is more beneficial. Ordinarily, journal articles and books mostly are published on an exclusive basis whereas short items in journals (reviews, news items, etc) are published on non-exclusive licence. The Publisher may also want the right to publish the material in all formats and in all media (print and electronic) and may want the right to sublicense as well.

Generally, the publishing houses include a warranty in the agreements (including R&P agreement) from the Author that all the work is original and not copied from anywhere and does not infringe any third party’s copyright. Warranty clause should also include that the literary work does not contain any defamatory statements and does not infringe upon the rights or privacy of others.

These agreements also have the Indemnity clause, that is, if the author breaches anyone’s copyright and as a result the publisher is sued, the author would indemnify the publisher/library.

Arbitration laws…

R&P agreements should also have the jurisdiction clause especially since the publisher/library may be based in any part of the world. Arbitration laws often come to the rescue of the parties in cross border transactions since both the parties have the option to choose the place of arbitration even though the parties may not have any nexus with the seat and place of arbitration. Further, arbitration clause may assist in reducing forum shopping and save the parties from the complex and lengthy procedures of the Court.

On a concluding note…

R&P agreement have changed the dynamics of the publishing industry by moving towards open access publishing. It would not be incorrect to state that R&P agreements play an important role in publishing world and has come up as a strong option when compared to the traditional method of publishing.

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