Introduction to the Legal Framework

The legal framework around open access or open science in general, is complex.

The most notable law regarding publishing for Germany is the German Copyright Act (Bundesamt für Justiz 2022), which defines the relationship between an author and his or her “work”. In general, scholarly publications are automatically protected by copyright regardless of being published or not. For a work to be protected, a certain level of originality (“Schöpfungshöhe”) must be reached. This usually applies to textual materials, works of art, audiovisual materials, maps or software (see Section 2 German Copyright Act). In contrast, research data need to be looked at more closely in terms of the extent to which the criterion of the level of human creativity is being met. (Forschungsdaten.info. 2022)

Additionally, a work can have joint authors. Along with the authorship come the moral rights (“Persönlichkeitsrechte”), guaranteeing that authors remain connected to their work. This means that in German law copyright cannot be transferred. For the purpose of transferring rights of use, exploitation rights (“Verwertungsrechte”) exist. Authors may transfer non-exclusive or exclusive rights of use to third parties, e.g. publishers. By receiving an exclusive right of use the rightsholder, e.g. the publisher, can exclude all other persons (including the author) from using the work or grant rights of use. In contrast, non-exclusive rights do not exclude others from future uses.

To regulate the extent of granted rights of use to a work, a publishing agreement, which is a contract, is concluded between an author and a publisher. “Pursuant to Section 8 of the Publishing Act, an exclusive right of use is granted to the publisher unless otherwise specified.”(open-access.network 2022)

What can you do to be able to publish open access?

Ideally you choose an open access publisher to whom you grant a non-exclusive right of use to publish your work with an open content licence. By doing so you will be able to take advantage of your own work in the future, e.g. for a cumulative dissertation.

Having a closer look into the publishing agreement is a must. Depending on the jurisdiction, do not transfer your copyright to the publisher. Be aware of the rights of use you are about to transfer. There might be circumstances you cannot address on your own, maybe because you have written an article with several colleagues or you provide a contribution to an edited collection or a conference. If you submitted your work to a closed-access journal or publisher try not to grant an exclusive right of use. After you have done so, it would be up to the publisher to decide whether or not an open content licence is allocated or self-archiving allowed. To avoid this situation, you can either cross out restrictive formulations from the publication agreement or attach an addendum to the agreement, such as the SPARC Author Addendum (SPARC 2006). If you are working in a project funded by funding organisations you have to comply with funding policies. You can check which requirements apply to your work in the Sherpa Juliet (JISC. Research Funders’ Open Access Policies 2022) database.

If you already have signed a publication agreement, you might still be able to make a version of your publication available on a repository. Many publishers nowadays have open access archiving policies, allowing authors to self-archive their work.

Additionally, starting in 2014 the secondary publication rights (see Section 38 German Copyright Act) allow authors under specific circumstances to upload an accepted author manuscript on a repository. However, the following conditions must be met:

• The scholarly contribution must result from a research project that has received at least 50 % public funding (basic funds of a public research institution or a university are not included).
• The scholarly contribution must have been published in a periodical collection that is published at least twice a year.
• The scholarly contribution can be made available only for non-commercial purposes after 12 months of the first publication. The source of the original primary publication must be credited.

The international validity of the secondary publication right is debatable. For this reason, it is advisable to check with publishers not based in Germany that secondary publication on a repository is permitted. Sherpa Romeo is a database which offers an orientation about these policies, but only the publishing agreements are legally binding. If you no longer have a version of the publishing agreement, you can renegotiate with the publisher about the possibility of self-archiving. In many cases, this may only be done after a certain time has passed since the primary publication and must be done on institutional repositories due to the fact that further commercial uses are prohibited. This means that commercial platforms such as ResearchGate are not suitable for self-archiving. You can find more informations and examples for usage on the website of the open access network.