Legal issues

In pre-Internet times, scientists generally gave little thought to the question of who held what rights to their texts after publication, e.g. in a journal.  

With the arrival of the Internet -- and especially the advent of open-access publishing and self-archiving in open-access repositories -- the possibilities for disseminating and using scholarly knowledge have increased enormously. However, authors must now have a greater awareness of who has (or should have) what rights to their own published work. Such an awareness is all the more advisable in the light of the fact that leading national and international research funders have incorporated open-access principles into their policy guidelines.  

For example, the open-access guidelines of the German Research Foundation (DFG) state:

"The DFG expects that research findings funded with its resources be published, where possible digitally, and that they be made openly accessible on the Internet. To this end, the contributions in question should either be deposited in discipline-specific or institutional repositories after conventional publication or be published directly in refereed and/or recognised open-access journals.  

When entering into publishing agreements, scientists participating in DFG-funded projects should endeavour to ensure that they permanently reserve a non-exclusive exploitation right to archive their research findings electronically for the purpose of open access. Discipline-specific embargoes, usually of 6-12 months duration, may be agreed which preclude the deposition of published research findings in discipline-specific or institutional repositories until after the embargo period has expired." (Our translation)  

Because detailed information on legal issues [German] regarding deposition in repositories is available on the open-access.net portal, we will confine ourselves here to a few important points[1]:   

1. You are interested in retrospectively depositing an article in SSOAR, which has already been published in a restricted-access journal, in order to make it available to as wide a (scholarly) readership as possible:      

  • Check whether the publisher's open-access policies are already available in the SHERPA/RoMEO database, a project now run by SHERPA: Securing a Hybrid Environment for Research Preservation and Access. By now, numerous publishers allow authors to archive their manuscripts in full-text repositories in parallel with, or after, publication.
  • If the journal or publisher in question is not (yet) on the SHERPA/RoMEO list, the author's entitlement to self-archive in SSOAR must be determined on an individual basis. The respective publishing agreement terms are decisive here.
  • Under German law, in the absence of an explicit publishing agreement, the publisher acquires an exclusive exploitation right to reproduce and distribute the work. However, one year after publication, this right becomes non-exclusive, thereby allowing you to then deposit the article in SSOAR. (For more detailed information, see open-access.net [German]).    
  • Some publishers now allow (immediate) self-archiving in open-access repositories under certain conditions. They frequently require that a statement be added when the manuscript is deposited in the repository. It is SSOAR's policy to cite the original places of publication in such a way that readers can also contact the publishers directly via a hyperlink, where available. However, sometimes a certain citation style is mandated by the publisher. For example:  

"When archiving in document servers, please give the following bibliographic details: Author publication. (c) Publisher A, 2007. This version is that of the author which has been archived with the authorisation of publisher A. The original version was published in Journal B, volume C, issue D in month E, year F. DOI: link G."  

Authors whose publishing agreement includes such a provision should make sure to quote it when submitting a manuscript to SSOAR.  

2. You are interested in retrospectively self-archiving in SSOAR a) a contribution which has appeared in a book or a festschrift or b) a monograph:  

In the case of a), if there is no contract provision to the contrary and if no remuneration was given for the original publication, you may deposit the contribution in SSOAR one year after publication [1].  

Under the German law, in the case of b), there are no statutory provisions governing online distribution. Monographs and other types of manuscript which were published before 31 December 1994 may be archived without any restriction. Because electronic distribution was unknown at that time, authors could not assign rights to exploit their work in this way. Thus, the electronic distribution rights are held by the author. In other words, these works may be made available to the public online notwithstanding contract provisions to the contrary. (This does not apply if an agreement on digital distribution was made retrospectively.) In the case of monographs published after 31 December 1994, it is advisable to enquire with the publisher. It may be that the publisher no longer carries the monograph or has no objections to it being archived in SSOAR since the increased accessibility could stimulate demand for the print publication.  

3. You are interested in depositing a monograph in SSOAR as a means of making it available to the public for the first time:  

Nowadays, many manuscripts such as dissertations are only made digitally available to the public via electronic repositories. From a legal point of view, it is especially important that the doctorate regulations of the respective university be observed in this instance. If you are planning to make your work openly accessible in parallel with print publication, this should be documented in the publishing agreement. Many publishers, for example university publishers, already explicitly offer this so-called hybrid publishing model. It is often worthwhile to mention to your publisher of choice your desire to make your work freely available for all to access online in parallel with publishing. Some publishers are quite open to this because parallel open-access distribution often stimulates demand for the printed version. It is essential that the document be made available to the public under an open-content licence which regulates and ensures the safeguarding of your rights vis-à-vis users of the online version. You can obtain information on the various licences available when depositing your document in SSOAR.  

If, in the future, you are interested in publishing your work in a restricted-access journal because there is no suitable open-access journal in existence, but you want to avoid legal uncertainty and safeguard in advance your right to complementary or retrospective deposition in SSOAR or any other open-access repository, you should make sure that, in the publishing agreement, either the publishers acquire only a non-exclusive exploitation right or that you, as the author, reserve a non-exclusive exploitation right to self-archive your research findings in a digital repository.

[1] We wish to stress that the following scenarios describe the situation under German law. They are provided for information purposes only, do not constitute legal advice and should not be relied upon as such (see Disclaimer).