Making documents openly accessible in repositories
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
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) <a"öffnet href="http://www.openaccess-germany.de/?id=265#464"></a"öffnet>SHERPA/RoMEO Listings<//a> provide useful information on the self-archiving policies of individual journal publishers. For example, it is quite common for publishers to permit authors to self-archive their own version as a <a"öffnet href="http://www.openaccess-germany.de/?id=169#1242"></a"öffnet>postprint<//a> 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 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).
Under German law, in the absence of an explicit publishing agreement, the publisher is deemed to have acquired an exclusive right of reproduction and distribution – i.e., print publication – in the work. One year from the date of appearance, this right becomes non-exclusive, at which point the author may allow third parties to reproduce the article.
This is laid down in Section 38 (1) of the German Copyright Act (UrhG) (Section 38 UrhG Contributions to Collections) which regulates secondary rights to published contributions:
¨If the author consents to the inclusion of his work in a collection which appears periodically, the publisher or editor shall be deemed in case of doubt to have acquired an exclusive right of reproduction and distribution. However, the author may otherwise reproduce and distribute the work after the expiry of one year from the date of appearance, unless otherwise agreed.¨
Hence, when self-archiving an article which has already appeared in a journal, authors may proceed in accordance with Section 38 (1) UrhG and deposit their work in a repository one year from the date of appearance.
However, self-archiving in repositories is a form of online distribution, whereas Section 38 UrhG originated in the analog world. Whether or not it covers the right to make work publicly accessible within the meaning of Section 19a UrhG, which right is a prerequisite to online distribution, is currently the subject of controversial discussion among legal experts. Section 19a UrhG defines the right to make work publicly accessible as follows: ¨The right to make the work publicly accessible is the right to make the work accessible on a wired or wireless basis and in such a way that it is accessible to members of the public from places and at times of their choice.¨
The library law specialist Eric Steinhauer takes the view that, in the absence of an explicit publishing agreement, the right to make work publicly accessible cannot be deemed to have been automatically granted:¨Insofar as an author makes a contribution available to a publisher for publication in a journal or a festschrift without concluding a specific agreement, the publisher cannot be deemed to have also acquired the right to make the work publicly accessible¨ (Steinhauer, 2006). From this it follows that, in the absence of an explicit contractual agreement, the publisher did not at any stage acquire the right of online distribution in the work. Therefore, the author is basically free to distribute the work online or to authorise third parties to do so.
However, the legal experts Joern Heckmann and Marc Philipp Weber take a different view. They construe Section 38 UrhG in conjunction with the general principle laid down in Section 31 (5) UrhG that the scope of the usage rights should be determined in accordance with the purpose envisaged when granting the rights, and they conclude that, on the one hand, the publisher also acquires the right to make the work publicly accessible and that, on the other hand, after one year the author acquires only the right of physical distribution in the work. In their opinion, the scope of Section 38 does not extend to making work accessible online and it cannot, therefore, be invoked to justify self-archiving in parallel with print publication (Heckmann & Weber, 2006, p. 2).
Even if one accepts Steinhauer's argument, it still remains unclear whether authors must accept vis-à-vis their publishers the so-called obligation to desist from reproducing or distributing the work or whether contributions may be made immediately accessible online in parallel with print publication. This obligation on the part of authors to desist is laid down in the German Publishing Act (Section 2 VerlG). As a rule, it remains in force for the duration of the period in which the publisher holds the exclusive right of print publication in the work. If, pursuant to Section 38 UrhG, the publisher's exclusive right of use becomes non-exclusive one year after the appearance of the work and the author is then entitled to otherwise distribute his or her text in printed form, there is no longer any reason to continue to desist from online distribution. The less so, according to Steinhauer, because, in the case in question, the publisher never actually acquired the right of online distribution.
By contrast, the historian Klaus Graf takes the view that scholars are entitled to make their articles publicly accessible online even before the one-year period expires because, as he sees it, Section 38 UrhG regulates only physical distribution. Hence the right to make the work publicly accessible online is not affected. However, the distribution of the work under a free Creative Commons Licence would not be permissible until after the expiry of the one year period because such a licence grants a non-exclusive right of use to everyone which also includes the right of physical distribution (Graf, 2006). It would, however, be possible to grant a <a"öffnet href="http://www.openaccess-germany.de/?id=240#1828"></a"öffnet>DIPP Licence<//a>.
References to Section 38 UrhG hereafter are based on the assumption that Eric Steinhauer's interpretation is correct.
Self-archiving contributions which have already appeared in collective volumes (e.g. festschrifts)
Contributions which have been published in books or festschrifts may be otherwise distributed one year after they first appear unless otherwise agreed and unless the author received remuneration for the (primary) publication. However, the right of online distribution on expiry of the one-year period exists only in the absence of a contractual agreement governing online distribution because in that case Section 38 UrhG refers solely to physical distribution:
Section 38 UrhG: "(1) If an author consents to the inclusion of his work in a collection which appears periodically, the publisher or editor shall be deemed in case of doubt to have acquired an exclusive right of reproduction and distribution. However, the author may otherwise reproduce and distribute the work on expiry of one year from the date of release, unless otherwise agreed.
(2) The second sentence of subsection (1) shall also apply to a contribution to a collection which does not appear periodically if the author is not entitled to remuneration for making the contribution available."
Many publishers now allow such contributions to be self-archived even if the author received remuneration. It is therefore worthwhile enquiring with the publisher.
Self-archiving articles which have already been published in a newspaper
Immediately after an article appears in a newspaper, authors have the right to otherwise distribute it unless otherwise agreed:
Section 38 (3) UrhG ¨If a contribution is made available to a newspaper, the publisher or editor shall be deemed to have acquired a non-exclusive right of use, unless otherwise agreed. If the author grants an exclusive right of use, he shall be entitled, immediately after the appearance of the contribution, to otherwise reproduce and distribute the work, unless otherwise agreed.¨
Self-archiving of published monographs
There are no legal provisions as to when a published monograph may be otherwise distributed. The only provision which applies also to monographs is that which refers to documents published prior to 1995. In the case of such works, the right of online distribution is held by the author because prior to 1995 online distribution was an unknown type of use of which authors could not grant rights. In other words, authors are entitled to distribute these works online (Section 15 UrhG). (However, this applies only if no agreement with regard to online distribution was concluded subsequently.) After the end of 2008, the online distribution rights automatically devolved to the publisher unless the author had already lodged an objection to this type of use or had granted the rights of online use to a third party (for more details, see Copyright law reform in Germany).
With regard to self-archiving monographs published after 1994, 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.
Primary publication of monographs
Many documents, for example dissertations, are not published in the strict sense at all but only made accessible to the public via digital repositories. From a legal point of view, it is especially important that the doctorate regulations of the university in question be observed in this case.
If authors intend to make their work openly accessible in parallel with print publication, this should be recorded in the publishing agreement. Many publishers, for example university presses, already offer this so-called hybrid publishing model. It is often worthwhile mentioning specifically to the publisher of your choice your desire to self-archive in an open access repository. Some publishers are quite open to this because parallel open access often stimulates demand for the print version.
Where possible, the document should be distributed under an open content licence.
Self-archiving documents published prior to 1995
In the case of documents in respect of which a publishing agreement was signed prior to 1995, the online distribution rights were held by the author until the end of 2008. (Exception: The publisher informed the author that it wishes to avail of the online rights of use. In this case, the author had three months within which to lodge an objection.) Prior to 1995, online distribution is deemed to have been an unknown type of use in respect of which the author could not have granted any rights. Under Section 137l of the German Copyright Law (UrhG), the documents in question may be self-archived if, before the end of 2008, the authors granted a third party the non-exclusive right of online distribution or lodged an objection with the publisher against the online use by the publisher. The transition period was regulated under Section 137l UrhG. For more details, see Copyright law reform in Germany: Which changes are relevant to Open Access?
