Safeguarding your rights
If you, as an author, wish to make your work open access (OA), you should be aware of certain legal issues. One central question is whether you have the so called online exploitation right in the work, which includes the right to self-archive it in an OA repository. This should not be taken for granted, especially if the contribution in question has already been published by a conventional publishing house. To a certain extent, the legal issues associated with primary publication in an OA journal (the so-called golden road to OA) differ from those relating to self-archiving in parallel with journal publication (the so-called green road to OA).
Self-archiving in repositories in parallel with publication
Nowadays, the majority of publishers allow their authors to deposit a version (preprint, postprint or publisher's version) of their work in an institutional or subject-based OA repository. (The SHERPA/RoMEO listings provide details of the copyright and self-archiving policies of the major publishers of peer-reviewed academic journals.) When entering into a publishing agreement, you should endeavour to persuade your publisher to accept non-exclusive rights of use because otherwise you, as author, lose the right to exploit your work online. You could consider attaching an addendum to your publishing agreement in order to retain the right to self-archive your contribution in a non-commercial repository. A number of author addenda can be downloaded free of charge from the Internet (see, for example, SPARC and Creative Commons licences). To become legally binding, the addendum must be countersigned by the publisher. Some publishers refuse to accept such author addenda. However, as mentioned above, the majority are nonetheless willing to allow self-archiving in an OA repository.
For authors who have had their work published by German publishing houses in the past, an amendment to the German Copyright Act (UrhG) which came into effect on 1 January 2008 was also of relevance here: Section 137l was an interim arrangement for new types of use. It applied retrospectively to exclusive rights of use granted between 1 January 1966 and 1 January 2008 and stipulates that, unless the author lodged an objection, the holder of these exclusive rights of use is also considered to hold the rights to types of use which were unknown at the time the agreement was concluded.
This objection could be lodged within one year only (by 31 December 2008 at the latest.) Moreover, the right of objection expired three months after the other party has sent notification to the author of his intention to proceed with the new type of use, which notification shall be sent to the author's last known address. For more detailed information, see the overview produced by the Max Planck Digital Library.
Primary publications in Open Access journals
The situation with regard to primary publications in OA journals or with OA publishing houses is quite different. As a rule, authors must warrant that they hold the online exploitation rights in the work and that it has not been published elsewhere. For their part, OA journals and publishers usually allow authors to make a version of their contributions openly accessible online provided the published source is acknowledged. OA journal websites usually provide detailed information on their copyright policy. The SHERPA/RoMEO listings detail the copyright and self-archiving policies of the major publishers of peer-reviewed academic journals.
Licensing Open Access documents
In Open Content licences authors grant rights to others to use their work in a particular manner (rights of use) and stipulate the conditions under which the work may be used. The use of licences of this kind to grant rights for specified uses makes it easier to have copyright infringements penalized and provides users with exact information on the manner in which the document may be used.
