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Open Access for Scientific Publications

Due to the increasing digitalization and spread of the internet there are many new chances for scientists, especially in the area of publications. One omnipresent term is Open Access: The following article gives answers to questions like “what is OA?” and “what opportunities provides OA for scientists?“.

Note: This article provides an overview of the legal framework which may be relevant for language scientists. As information they are not legally-binding and cannot substitute for experts' information on the respective topic.

 

What is Open Access?

Open Access is a publication strategy which provides free and unrestricted access to knowledge and information, especially peer-reviewed scholarly research.

There are two ways the author can provide open access:

  1. The Golden Road: Scientific and scholarly articles are initially published in Open Access journals or other forms of OA publications (monographs, collective volumes,…). The authors pay a publication fee to the OA publishers.
  2. The Green Road:The articles are self-archived in openly accessible institutional or subject-based servers (=OA repositories) as digital documents – either alongside or after publication in a paid access journal.

 

What are the benefits of OA for scientists?

 

Case 1:

You want to primarily publish your work in an OA repository to make it available for the broadest (professional) audience possible.

Make use of an open-content license (e.g. Creative Commons) to publish it in an institutional repository or open-access journal. You can choose from a wide range of repositories. Note the the restrictions of use on your work.

 

Case 2:

You’ve already published your work in a journal and now want to publish it through Open Access (e.g. for archiving purposes).

If the work was published before Dec 31, 1994, you as an author have the right of electronic distribution; “in other words, these works may be made available online to the public notwithstanding contractual provisions to the contrary. (This does not apply if an agreement on digital distribution was made retrospectively.)” [i]

If the work was published after Dec 31, 1994, the publisher has the right of electronic distribution because since then, online use belongs to the officially recognized types of uses in the copyright system.

If the work was published between Jan 1, 1966 and Jan, 1 2008, see § 137 1 UrhG: If the author has vested his rights of exclusive use to another party in a licensing agreement, “the rights of online use […] automatically devolved to the holder of the exclusive rights of use unless the author lodged an objection with the holder of these rights before the end of 2008”[ii] or 3 months after the new type of use becomes known.

If you now reach the result that the publisher holds the exclusive right to your work, you have to 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. The SHERPA/RoMEO Listings provide details of journal publishers' policies with respect to the self-archiving of scientific and scholarly publications. The listings are not, however, legally binding. In case of doubt, the publishing agreement prevails.

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.” [iii]

Some licensing agreements in recent years permit a concurrent archiving on OA repositories provided that the source of initial publication is stated. Concerning this matter, read your contract carefully and consult a lawyer.

“In the absence of an explicit publishing agreement, the publisher acquires an exclusive 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 [an OA repository]. (For more detailed information, see open-access.net).” [iv]

Legal basis for this rule is § 38 I UrhG: Unless otherwise contractually agreed, the author of a journal article is entitled to make it available elsewhere one year after the date of primary publication (although he vested his exclusive right of reproduction, dissemination and making publicly available to the publisher).

Case 3:

You’ve already published your work in a non-periodical collective volume (like monographs, commemorative publications, etc.) and want to publish it again via open access.

If there is NO payment agreement settled, the same answer as to question 4 applies here; in other words, you are allowed to publish your work via OA after an embargo time of 1 year. Legal basis is § 38 II UrhG (“This applies also to contributions in collective volumes which do not appear periodically provided the author did not receive remuneration for the contribution.”).

 

Special Case 4:

On Oct 1, 2013 the German legislature finally modified § 38 UrhG and added a section (IV)[v] which allows the author of a scientific work to make the accepted version (i.e. the version accepted by the journal, not the final edited version) of the manuscript publicly available (cf. BT 17/13423, S. 10) – under the following conditions:

1. The scientific work has to be generated in the context of a research activity and published in a periodical collection (meaning a periodical that is published at least biannually).

  • The law applies to every kind of scientific publications in journals and magazines.
  • The law does not apply to monograph series, open-ed articles, proceedings, annuals and commemorative publications. (See BT-Drs. 17/13423 and BT-Drs. IV/270, 59 for more information and a detailed list).

2. The scientific work is funded at least 50 % by public funds.

  • DOES NOT APPLY TO UNIVERSITIES.

As laid down in BT 17/13423, S. 22f., the German legislature excluded the “basic” research of universities and official university tasks intentionally.

  • The law applies to every research activity of public project funding and publicly financed, non-university research facilities. (cf. BT 17/13423, S. 9).
  • The work can be financed by federal and state (“Länder”) sources as well as municipal funding. EU and private funds are excluded.
  • Note: If the research activity is financed by public and private funds (e.g. Max Planck Institut), make sure that more than 50 % is financed publicly. Otherwise, the law doesn’t apply.

3. A period of twelve months has passed after the first publication of the scientific work.

4. The publication is for non-commercial purposes.

5. The author has to acknowledge the source of the first publication.

Note: Under these conditions, the author is neither allowed to make the rough draft version of the manuscript publicly available nor the final version with the editorial modifications (as this would mean that the same publication is published twice).

The author’s right to republish open access prevails even if the author has already made a contract/agreement to the contrary. In other words: even if an author has previously assigned all the exclusive rights of use in the copyrighted work to an editor or publisher.

All provisions or agreements that contradict this are invalid under the new § 38 IV UrhG.

 

Review

  • With this new law, the German legislative aims to align Germany’s national law with the European Open Access policies that are clearly expressed in the EU Commission’s Recommendation and the EU Commission’s Communication (see links below)
  • Most of the editors are international publishing houses – the German copyright law is not applicable: If an author enters into a contract with a foreign publisher, he wanders into a gray area of law. Taken the worst case, he commits a breach of a law by republishing open access.[vi]

 

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