The license agreement grants the licensee the right to use the work in the manner and to the extent defined in the agreement. In the Czech Republic Act No. 89/2012 Coll., the Civil Code, sets out the requirements of a licence agreement in Sections 2358 – 2389 (valid in the Czech Republic).
When granting a licence, it is necessary to clarify whether it is possible to dispose of the copyright work at all (and therefore to publish it in open access):
- Have I granted someone an exclusive license?
- Do I have the right to dispose of the copyright work?
- For a work with multiple authors, you need to have the consent of all co-authors.
- Employee work – unless otherwise stated, the employer has the property rights to copyright works created in the course of employment. For more information see section 58 of the Copyright Act.
- For works created on commission, it depends on the terms set out in the agreement. Similarly for copyright works created within the framework of a project.
- In some cases, the property rights in works are held by collective administrators. For more information see section 59 of the Copyright Act.
The license agreement may be concluded as:
- Exclusive – the licensee is the only one who may use the copyright work in the manner and to the extent provided for in the agreement. Even the author himself cannot use the copyright work in this way. An exclusive licence agreement must be concluded in writing.
- Non-exclusive – the author is not restricted in the further use of the copyright work and in the scope of its use by its conclusion. The author may use the work himself (suitable for Open Access) or grant an additional non-exclusive licence to other licensees. Unless the contract explicitly specifies whether the licence agreement is exclusive or non-exclusive, it is a non-exclusive licence agreement.
When concluding a licence agreement, particularly with publishers, it is advised to consider the appropriate form of licence agreement. The key is not to prevent further use of the copyright work, such as its publication in Open Access mode. Some programmes, such as Horizon 2020, require scientific information to be made available for use, dissemination, extraction or reproduction, so that scientific documents can be read online, downloaded or printed. The licence agreement should also allow the copyright work to be displayed in a repository.
Essentials of licensing agreements:
- Remuneration – must be set at a specific amount or determined in relation to the revenue from the use of the licence.
- If the parties wish to negotiate a royalty-free licence agreement, this condition must be explicitly agreed in the agreement.
- In case the parties wish to conclude the contract without specifying a remuneration, the remuneration shall be set at the amount that is usual at the time of conclusion of the contract under similar contractual conditions.
- Scope/Conditions – The following conditions apply unless otherwise stated in the contract:
- Quantity (number of copies covered by the licence) – means the usual quantity
- Place (territory for distribution of the work) – within the territory of the Czech Republic
- Time – the usual length, but no longer than 1 year from the grant of the licence
- Determine whether the contract is non-exclusive or exclusive. Unless otherwise agreed, licensing agreements are considered non-exclusive.
- Sub-licence – entitles the licensee to grant licences to a 3rd party. This arrangement must be agreed in writing. The author must be informed of the grant of the licence to another person and must consent to the assignment (again in writing).
- Definition of (individual) uses (e.g. dramatization of the work, writing a screenplay, publishing a book – in print or electronic form).
- Licensing agreements may only be concluded for those uses that are known at the time the agreement is concluded.
- Publishing licences (see for more details sections 2384 – 2386 of the Civil Code) are considered exclusive (unless otherwise agreed in the contract), unlike other licence agreements. However, this does not apply to periodical publications.
When publishing, it is necessary to have all contractual arrangements in order – not only with the authors of the text, but also with translators, cover designers, illustrators, photographers, authors of introductions/headings, typographers, etc.
The wording of the licence agreement and all the provisions contained in it should be given due consideration!
Examples of licence agreement provisions
The Provider grants the License to the Purchaser as exclusive. During the term of the Licence, the Provider is not entitled to transfer the licence to a third party or to dispose of the Subject of the Licence in any way within the scope of the granted Licence.
Such an arrangement with the Publisher is very restrictive and will prevent the Author from publishing his own work in open access. Such an arrangement is therefore not recommended.
The Provider grants the License to the Purchaser as non-exclusive. The Provider is entitled to transfer the license to a third party to the Subject of the license as well as to exercise its rights in the Subject of the license.
This wording is fine from an open access publishing perspective.
The Provider grants the License to the Purchaser for a fixed term, namely for a period of (…) months/years.
The Provider grants the License to the Purchaser for a fixed term from the date of signing of this Agreement until (…).
If the Publisher has been granted an exclusive contract for a fixed term, it is possible to publish it with an embargo. It should be kept in mind that some grant providers allow embargoes with a maximum period of six months for the so-called Green Road, others do not allow them at all.
Pursuant to Section 2366(1)(b) of Act No. 89/2012 Coll., the Provider grants the License to the Purchaser without the right to remuneration, i.e. free of charge.
Valid agreement on the gratuitousness of the grant of the License. If, on the other hand, neither the amount of the remuneration neither the gratuitousness is agreed upon in the contract at all, the remuneration shall be in the amount that is customary at the time of conclusion of the contract under similar contractual conditions. In any case, it is better to explicitly agree the amount of the remuneration or gratuitousness in the license agreement. If the parties have not agreed on the amount of the remuneration customary at the time of conclusion of the contract under similar contractual conditions, the court would have to determine that amount.
Related legislation: