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, many 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 (accepted manuscript) 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

Authors are frequently obliged to observe an embargo period between the publication date and the date on which the document is made openly accessible online. Other conditions imposed by publishers relate to the version of the work which may be archived and the inclusion of an addendum acknowledging the published source. The (legally non-binding) SHERPA/RoMEO Listings provide useful information on the self-archiving policies of individual journals. For example, it is quite common for publishers to permit authors to self-archive their own version as a postprint  in parallel with the print publication. The postprint is the post peer-review version as accepted for publication but still in the format submitted by the author. In contrast to the preprint, which is the unrefereed version submitted for consideration to the publisher, the postprint (accepted manuscript) does not usually differ in terms of content from the publisher's version.

Some publishers now permit immediate self-archiving under certain conditions. Authors whose publishing agreements feature such clauses should state this when submitting documents to the repository. As mentioned above, publishers often require authors to include a pre-worded addendum when self-archiving:

Example: If you wish to post your version of this article within your institutional repository please include the following wording: Author Posting. (c) Publisher X, 2007. This is the author's version of the work. It is posted here by permission of Publisher X for personal use, not for redistribution. The definitive version was published in Journal of XXX, VolumeXX Issue X, April 2007. doi:XX.XXXX/XXXXXXX (link to doi).

If an agreement on copyright, such as a written publishing contract, was concluded when the article was published in the academic journal,, the provisions it contains will apply.

Otherwise, the provisions of publishing contract law contained in the Swiss Code of Obligations will apply. Art. 382 Para. 3 of the Code lays down that: “Contributions to collective volumes or larger contributions to journals may not be republished by the publishee before expiry of three months after the complete publication of the contribution.” Accordingly the author of an academic paper, such as an article in a journal, that deals with a topic in depth can make it publicly accessible in a repository or other server three months after it has been published in full. The author’s version (accepted manuscript) can certainly be used for this purpose. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar legislation. However, there is no established judicial practice on the question of format.

It should be noted that in international constellations, such as where the document server is 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, such as a written publishing contract, was concluded when the article was published in the collective work, the provisions it contains will apply.

Otherwise, the provisions of publishing contract law contained in the Swiss Code of Obligations will apply. Art. 382 Para. 3 of the Code lays down that: “Contributions to collective volumes or larger contributions to journals may not be republished by the publishee before expiry of three months after the complete publication of the contribution.” Accordingly the author of an academic paper, such as a contribution to a book, provided that it deals with a topic in depth, can publish it in a repository or other server three months after it has been published in full. The author’s version (accepted manuscript) can certainly be used for this purpose. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar legislation. However, there is no established judicial practice on the question of format.

Many publishers now allow such contributions to be self-archived even if the author received remuneration. It is therefore worthwhile enquiring with the publisher.

It should be noted that in international constellations, such as where the document server is located abroad, a foreign legal system may apply.

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

If an agreement on copyright, such as a written publishing contract, was concluded when the article was published in the newspaper,, the provisions it contains will apply.

Otherwise, the provisions of publishing contract law contained in the Swiss Code of Obligations will apply. Art. 382 Para. 2 of the Code lays down that: “Newspaper articles and individual smaller papers in journals can be republished by the publishee at any time.” Accordingly reports with a topical relevance, such as newspaper articles, can be published by the author in a repository or other server at any time. The author’s version (accepted manuscript) can certainly be used for this purpose. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar legislation. However, there is no established judicial practice on the question of format.

It should be noted that in international constellations, such as where the document server is located abroad, a foreign legal system may apply.

Self-archiving of published monographs

If an agreement on copyright, such as a written publishing contract, was concluded at the time of publication, the provisions it contains will apply.

Otherwise, the provisions of publishing contract law contained in the Swiss Code of Obligations will apply. Art. 382 Para. 1 of the Code lays down that: “Unless the editions of the work to which the publisher is entitled are out of print, the publishee is permitted to dispose elsewhere neither of the work in entirety nor of individual parts thereof to the publisher’s disadvantage.” Accordingly, the author cannot publicly deposit works such as monographs or textbooks in a repository in competition with the publisher unless the edition is out of print. Versions that cannot be cited correctly and that do not constitute genuine competition are permitted, such as files without the original page numbers in subjects where citations give the exact page number.

It should be noted that in international constellations, such as where the document server is located abroad, a foreign legal system may apply.

With regard to self-archiving older monographs, it is worthwhile enquiring with the publishers because it is possible that they no longer carry the monograph or have no objections to it being deposited in a repository.

Dissertations

Most Swiss universities allow the electronic publication of dissertations. It is usually the university libraries that are responsible for digital publication and they will give you the information you need. As the author of the dissertation, you are permitted to place it under an open-content licence.

If, however, the dissertation contains parts that have already been or will be published elsewhere, the provisions of the corresponding publishing contract or the non-mandatory statutory provisions, as the case may be, must be complied with, and account taken of the information about submitting manuscripts to the journal or the publisher. It may therefore be appropriate to make only parts of the dissertation accessible on a repository and to refrain from disclosing other parts. The doctorate regulations of the university or faculty will also apply.

International constellations

The author and the publisher can conclude an agreement on legal venue and applicable law within the limits set by the Swiss Federal Act on International Private Law (AIPL) and the Lugano Convention.

In the absence of such an agreement, it must first be determined whether there is a Swiss legal venue, which is the case for instance if an action is filed against an author whose place of residence is in Switzerland. The Swiss court then determines the applicable law according to the Swiss AIPL. A distinction is made between matters of contract law (which concern a publishing contract) and specifically copyright law questions (which concern copyright).

  • Publishing contract law aspects are as a matter of principle subject to the law of the country in which the publisher has its place of business (Art. 117 Para. 2, AIPL).
  • Copyright issues are subject to the country-of-protection principle, according to which the law of the country for which protection is requested applies (Art. 110 Para. 1, AIPL). If for instance an action is brought for the removal of a specific publication from a repository in Switzerland, Swiss law applies, while a German repository would be subject to German law.

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