A question which both authors and repository operators are frequently obliged to ask themselves is whether it is permissible to make a particular document openly accessible in a repository. Fortunately, the answer to this question is often an unequivocal ¨Yes!¨.

Nowadays, most publishers have no objections to their authors' depositing a preprint or postprint of their article in an open access repository, a process which is referred to as self-archiving. The SHERPA/RoMEO listings provide details of publishers' self-archiving policies. It is fairly unlikely that publishers who do not allow self-archiving of the preprint or postprint version would take legal steps against one of their authors to have the document deleted. However, to be on the safe side from a legal point of view, it is advisable to check on a case-by-case basis whether there are any legal impediments to self-archiving. The following material is intended to provide an overview of the legal aspects which must be considered in each case.

Self-archiving articles which have already been published in a journal

If an agreement on copyright was concluded (for example, as part of a written publishing agreement) when the article was published in the journal, then the terms of that agreement will apply.

In the Austrian judicial area too, the answer to the above question depends primarily on the terms of the publishing agreement between the author and the publisher. As a rule, publishers require authors to transfer all exploitation rights to them and do not permit them to reserve, for example, the right to make the work publicly available [online]. Hence, it would normally be unlawful for the author to make the work available in a repository or on his or her personal website in parallel with publication.

If the publishing agreement does not explicitly regulate this matter, the agreement must be interpreted.

However, under Section 36 (2) of the Austrian Copyright Act ((Ö)UrhG), which applies also to journal articles, even an exclusive right of reproduction and distribution granted to the publisher in respect of contributions to periodically published collections (and hence in respect of journal articles) expires one year after the end of the calendar year in which the contribution appeared. As a result, from that point onwards (i.e. two years at the latest and one year and one day at the earliest after the article is published), the author is once again free to decide on the reproduction and dissemination of the contribution in question. However, it is problematic that the said provision does not explicitly refer to non-corporeal rights, in other words to the so-called 'making available right' (Section 18a (Ö)UrhG, 'online right'), which is of interest here. Therefore it does not grant absolute legal security.

Section 36 of the Austrian Copyright Act ((Ö)UrhG) states:

Contributions to collections
Section 36. (1) If a work is accepted as a contribution to a periodical collection (newspaper, journal, yearbook, almanac, etc), the author shall retain the right to reproduce and distribute the work elsewhere unless otherwise agreed or unless it is evident from the circumstances that the editor or the publisher of the collection is supposed to acquire the right to reproduce and distribute the work in [the collection] as an exclusive right in the sense that the work may not be reproduced or distributed elsewhere.
(2) In the case of contributions to a newspaper, such an exclusive right shall expire immediately after the publication of the contribution in the newspaper. In the case of contributions to other periodically published collections and contributions that are accepted for a collection that is not published periodically and for which the author is not entitled to remuneration, such an exclusive right shall expire after the lapse of one year from the end of the calendar year in which the contribution was published in the collection.

It should be noted that in an international context, for example in the case of a repository located abroad, a foreign legal system may apply.

Self-archiving contributions which have already appeared in collective volumes (e.g. festschrifts)

If an agreement on copyright was concluded (for example, as part of a written publishing agreement) when the collective work was published, the terms of that agreement will apply.

In the Austrian judicial area too, the answer to the above question depends primarily on the terms of the publishing agreement between the author and the publisher. As a rule, publishers require authors to transfer all exploitation rights to them and do not permit them to reserve, for example, the right to make the work publicly available [online]. Hence, it would normally be unlawful to make the work publicly accessible in a repository or on one's personal website. If the publishing agreement does not explicitly regulate this matter, the agreement must be interpreted. When doing so, it must be asked what the parties would have agreed upon if, when concluding the contract, they had wished to regulate the matter in a fair and reasonable manner. When interpreting the contract, the publisher's editorial policy should be consulted - if available. In the case of a typical publishing agreement that does not relate to a periodical collection such as newspapers, journals or other regularly published collective works, one will usually have to assume in case of doubt an exclusive and comprehensive grant of rights to the publisher. Hence, even in the absence of explicit contractual regulation of this matter, if the author makes a contribution that has been accepted for publication in a non-periodical collective work available in a repository or on his or her personal website, this will be deemed unlawful. However, it should be noted in this connection that under Section 36 (2) of the Austrian Copyright Act ((Ö)UrhG), in the case of contributions included in a non-periodical collective work, for example a festschrift, for which the author was not entitled to payment, an exclusive right granted to the publisher to reproduce and distribute the work expires upon the lapse of one year after the end of the calendar year in which the contribution appeared. Hence, from that point onwards (i.e. two years after the date of publication at the latest and one year and one day after publication at the earliest), the author is once again free to decide on the reproduction and distribution of the contribution. However, it is problematical that the said provision does not explicitly refer to non-corporeal rights, in other words the right to make a work available [online] (Section 18a ((Ö)UrhG) 'online right'), which is of interest here, and does not therefore grant absolute legal certainty.

It should be noted that in an international context, for example in the case of a repository located abroad, a foreign legal system may apply.

Self-archiving articles which have already been published in a newspaper

If an agreement on copyright was concluded (for example, as part of a written publishing agreement) when the article was published in the newspaper, then the terms of that agreement will apply.

In the Austrian judicial area too, the answer to the above question depends primarily on the terms of the publishing agreement between the author and the publisher. As a rule, publishers require authors to transfer all exploitation rights to them without reserving the right, for example, to make the work publicly available [online]. Hence, it would usually be unlawful for the author to make the newspaper article available in a repository or on his or her personal website in parallel with publication.

If the publishing agreement does not explicitly regulate this matter, the agreement must be interpreted. However, it should be borne in mind in this connection that in Austria there is a collective agreement for the editors, trainee editors and reporters employed by Austrian daily newspaper. Under this agreement, the rights of use are, as a matter of principle, transferred to the respective publisher "exclusively and without restrictions in terms of time, space, or content". The collective agreement for regular freelance contributors contains a similar provision (cf. Kucsko, Urheberrecht [Copyright], 1st edition. 2008, p. 515).

However, under Section 36 (2) of the Austrian Copyright Act ((Ö)UrhG), the editor's or publisher's exclusive right in respect of contributions to a newspaper expires after the article has been published in the paper. Hence, from that moment on, the author is once again free to decide on the reproduction and dissemination of the contribution. However, it is problematic that the said provision does not make explicit reference to non-corporeal rights, i.e. to the right to make the work available (Section 18a 'online right'), which is of interest here, and therefore does not grant absolute legal security.

It should be noted that in an international context, for example in the case of a repository located abroad, a foreign legal system may apply.

Self-archiving of monographs which have already been published

If an agreement on copyright was concluded (for example, as part of a written publishing agreement) when the work was published, the terms of that agreement will apply. Should the agreement not regulate the matter explicitly, then it must be interpreted. In any case, it is advisable to enquire with the publisher before self-archiving the work in an OA repository.

It should be noted that in an international context, for example when the repository is located abroad, a foreign legal system may apply.

Primary publication of monographs

Monographs and collective volumes can be self-archived in institutional or subject-based repositories or published in open access with university presses who have an OA policy. While institutional repositories and university presses usually accept only the works of their own members, subject-based repositories impose no such restrictions. The institutions' websites usually provide comprehensive support for authors. Whether it is legally permissible to make a published monograph openly accessible via a repository depends on the rights which you, as the author, granted to the publisher. You should consult your publishing agreement and/or enquire with the publisher. Some publishers are increasingly well-disposed towards the Open Access idea and consent to the self-archiving of monographs in OA repositories.

Self-archiving documents published prior to 1995

Austrian copyright law contains no such provision! Hence to answer the question it is necessary to interpret the contract or, where applicable, consult the addendum. The purpose of the contract is of particular relevance is this regard. A point that should be borne in mind is that, in case of doubt, even a comprehensive grant of rights must be reduced to the dimensions that appear necessary for the practical purpose of the proposed use of the work. Nonetheless, it can be stated as a general rule that where future types of use are not set out in the contract, a restrictive interpretation is indicated. Hence the Austrian Supreme Court of Justice (OGH) found that, despite the fact that a publishing agreement dating from some decades back granted the publisher an unlimited right of reproduction, this did not include the right to make the work available online (OGH 12.08.1998 – Vienna Group). The OGH also held that the use of photos on the Internet was not covered by a conclusive grant of rights (OGH 04.09.2007 – Internet use). See: Walter, Österreichisches Urheberrecht, Handbuch [Austrian Copyright Law, Handbook], Part 1, 1st edition, 2008, p. 802).