In this article, we'll discuss the publishing agreement. What are its characteristics and why should creators be interested in the potential benefits of such an agreement? To explore the subject of a publishing agreement, which can allow many creators to break into the wild, we'll conduct a purely legal analysis of this structure:

1. The parties to the publishing contract are the Publisher and the Author;
2. The contractual relationship under a publishing agreement is structured in such a way that the Author undertakes to prepare the work, while the Publisher undertakes to publish it. This is the most important part of the agreement, which can be structured in various ways, i.e., a deadline is specified within which the Publisher is entitled to publish the work. The entire agreement loses its purpose entirely if the Publisher fails to undertake to publish the work. This, combined with the views of Polish legal doctrine, de facto prevents the existence of a publishing agreement.
3. The contract must specify what work will be its subject.
4. The contract must specify the fields of exploitation in which the Author grants a license or transfers copyright to the Publisher.
5. It is necessary to specify the form and conditions in which the work will be delivered ; therefore, the publishing agreement most often specifies the deadline by which the work is to be prepared; sometimes such deadlines are set several times within a single agreement to separate the parts of the work that must be delivered by a given date. The legislator, of course, anticipated a scenario in which the Author fails to deliver the work by the appropriate deadline. The provision I am referring to is found in Article 52, paragraph 2 of the Act on Copyright and Related Rights of February 4, 1994 (Journal of Laws of 2021, item 1062), hereinafter referred to as "upapp." From the Author's perspective, this is an extremely important provision, as it gives them some margin of error; of course, the final decision still rests with the Publisher.
6. The contract should include information regarding acceptance of the work . The publisher can proceed in three different ways:

a. The first option is to accept the work in the form in which it was published. Acceptance of the work is tantamount to acceptance;
b. The second option is to reject the work. It's worth preparing contractual provisions for such a situation, specifying what should be done in such a situation. However, it should be noted that the Publisher does not have 100% discretion in rejecting the work, as such discretion would often lead to pathological solutions. In this case, Article 55 of the Copyright and Related Rights Act comes to the rescue; however, it is strongly recommended that the issue of acceptance, or lack thereof, be described in detail within the contract to avoid any potential unpleasantness.
c. You can also indicate that the Publisher will accept the work, but only after making certain changes. In our experience, the third scenario occurs quite often, although the parties usually reach a consensus. We have also encountered provisions which stipulate that if the changes proposed by the Publisher go significantly beyond the basic framework of the project, the Author is entitled to additional remuneration in proportion to the additional workload.

7. The essence of this type of agreement also involves granting a license or, alternatively, transferring copyright to the work. Of course, it's advisable to include as many restrictions as possible regarding the granted license, such as the license duration and the fields of use to which the license applies.

It's important to note that a publishing agreement can be a very comprehensive document, regulating numerous issues and agreements between the parties. It's impossible to fully describe all the information about a publishing agreement or point out the potential pitfalls we should be aware of when considering this type of agreement. However, the above list should allow you to identify the purpose of such an agreement and understand its basic assumptions.

The Copyright and Related Rights Act explicitly stipulates certain provisions that should be included in this type of agreement. On the other hand, licensing or transferring copyrights is not as straightforward as some of the "must-haves" of a publishing agreement, as mentioned above. It's safe to say, therefore, that drafting a publishing agreement yourself is no easy task, especially for complex projects. It's worth consulting the entire process with someone who specializes in this field, which I strongly encourage you to do.

This alert is for informational purposes only and does not constitute legal advice.

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