Making documents publicly accessible in repositories

Time and again, authors and repository operators find themselves faced with the question whether a particular document may be made publicly accessible on a personal website or in a repository without the risk of violating the rights of third parties. The answer to this question depends largely on the rights that the author holds in the work in question, and in particular on the rights that have not been exclusively granted to a third party – for example a publisher. A further decisive factor is whether the author is eligible for the right of secondary publication under Section 38 (4) of the German Copyright Act (UrhG). And finally, posting the work to a repository or a personal website may be permissible under the terms of the contract concluded with the third party.

The baseline situation:

All rights are held by the author

If the author of a copyrighted work has not concluded a contract with a third party regarding the use of the work – in other words, if all entitlements to authorise or prohibit others to use his or her own intellectual property are held by the author – he or she is legally entitled to make the work available to the public on his or her personal website. If the work is to be ingested into a repository, the author must permit the operator of the repository to do so. It is sufficient that the author grants the operator a non-exclusive right to make the work publicly accessible via the repository. However, the author can also make the work available under an open content licence that provides for a non-exclusive right to make the work publicly available to everyone (more information can be found here).

Nowadays, works are often made available to the public only in electronic form via repositories. This is especially the case when an institution’s examination-, publication-, or doctoral regulations either expressly permit, or even provide for, the deposition of theses and dissertations in the institution’s repository. Agreements concerning hybrid publication are also possible. In this case, the author has the option of publishing the work with a publisher or on a print-on-demand basis in addition to making it available to the public in electronic form via a repository. As there are many possible constellations, they should be discussed with the repository operator.

The exception:

Non-exclusive rights of use in the work have already been granted

If the author has already granted non-exclusive rights of use in the work to a third party, this does not prevent him or her from making the work available to the public on his or her personal website or in a repository. For, even after granting non-exclusive rights of use, the author is still in a position to grant other third parties non-exclusive rights of use, and is therefore entitled to grant a repository operator such a right.

The rule:

A publisher has been granted exclusive rights of use

If the author has already granted a third party – for example a publisher – exclusive rights of use in the work, a distinction must be drawn between the following case.

Works published before 1995

In the case of works published before 1995, authors were not yet able to grant the publishers the right to publish the work on the internet because the possibility of offering a work via the internet was still a so-called “unknown type of use”. However, to make things easier for publishers, the German legislator has provided that either a retrospective deviating agreement must have been made, or before the end of 2008 the author must have declared an objection to the new type of use of the work by the third party to whom exclusive rights of use were granted. If neither has occurred, the third party may also make the work publicly accessible on the internet to the exclusion of the author.

Works published after 1995

In the case of works published in or after 1995, it depends on whether or not the exclusive rights of use granted to the third party – for example a publisher – included the right to make the work accessible via the internet. Under Section 31 (5) of the German Copyright Act (UrhG), if the agreement concluded between the author and the third party does not explicitly provide for the right to make the work accessible via the internet, only those rights of use are considered to have been granted that would have had to have been granted to achieve the purpose of the agreement. This includes, in any case, the right to reproduce and distribute the work. This view is referred to in German case law as the “purpose-of-transfer doctrine” (Übertragungszwecklehre).

Under Section 38 (1) of the German Copyright Act (UrhG), if an author permits the inclusion of a contribution in a periodically published collection, for example a journal, the publisher is deemed in cases of doubt to have acquired an exclusive right to reproduce, distribute, and make the work available to the public. However, this exclusive right is limited to a period of one year following the publication of the contribution (Section 38 (1) sentence 2 UrhG). Hence, upon expiry of one year, the author is once again in a position to grant others non-exclusive rights of use unless otherwise agreed with the publisher.
If the contribution was published in a collection that is not published periodically, for example in conference proceedings or a festschrift, the rights revert to the author only if he or she was not paid a fee for making the contribution available to the publisher (Section 38 (2) UrhG). However, a number of publishers interpret this provision very generously, and allow authors to self-archive such works in a repository or on their personal websites even if a fee has been paid. Authors should therefore ask the publisher whether there are any objections to self-archiving the work.

Works published after 01.01.2014

With effect from 01.01.2014, the German legislator created an irrevocable right of secondary publication for the authors of scholarly contributions produced within the framework of research, at least 50% of which was publicly funded, and which appeared in a periodical that is published at least twice a year. With regard to the nature of the public funding, there is a restriction to the effect that it must be third-party public funding. Hence, contributions that result from a research activity that was financed from a scientific institution’s basic funds or from a purely didactic activity do not establish the right of secondary publication.
However, if the preconditions for the establishment of the right of secondary publication are fulfilled, one year after the first publication the author, or a third party commissioned by the author, may make available to the public for non-commercial purposes the final accepted version of the scholarly contribution – that is, the accepted version after peer-review but before application of the publisher’s layout. Secondary publication is not obligatory. If the author decides in favour of secondary publication, he or she must state the source of the first publication. In these cases, therefore, self-archiving in a repository is legally possible.

SHERPA/RoMEO

Even if exclusive rights of use in a work have been granted to a publisher, it may nonetheless allow the work to be posted to the author’s personal website or a repository. The SHERPA/RoMEO database  provides information on publishers’ self-archiving policies. The database was developed at the University of Nottingham with funding from the Joint Information Committee (JISC). The German-language interface, which is derived from the SHERPA/RoMEO database, was created within the framework of the DFG-funded project “OA Policies”, which was conducted by Stuttgart University Library and the Computer and Media Service of the Humboldt-Universität Berlin. The data are continuously updated by the scientific community.
Publishers’ self-archiving policies vary. They depend in particular on whether a postprint or a preprint of a publication is to be made publicly accessible by means of self-archiving. However, it should be noted that a legal entitlement cannot be derived from the information in the SHERPA/RoMEO database alone. It is therefore essential to contact the publisher to obtain clarification. In most cases, the publishers listed in the SHERPA/RoMEO database allow works published with them to be made publicly accessible only on condition that the self-archived full-text file contain a reference to the published version. Such a reference could be worded as follows:

Author Posting. © Publisher [Name], 2007. This is the author’s version of the work. It is posted here by permission of Publisher [Name] for personal use, not for redistribution. The definitive version was published in Journal of [Name], Volume [Nr] Issue [No], pp. [PS] – [PE] January 2007, doi: [xx.xxxx/xxxxxxx (Link to the DOI)].

The case of doubt

It is often not clear whether making a document available to the public by self-archiving it in a repository violates the rights of third parties. Therefore, the general principle is: Ask before you post! Even though it may not be necessary in the individual case, one should always reach an agreement concerning self-archiving with the publisher to whom one submits a work for publication and distribution. This applies especially in the case of foreign publishers, where the publishing agreement may be subject to foreign law, even though, under copyright law, the principle of national treatment applies whereby, in Germany, in relation to his work every author is treated in the same way as a German national would be.