Legal basis for Open Access

The following passages are from:

Hilty, Reto M. and Seemann, M. (2009) Open Access - Access to scientific publications in Swiss law (Expert opinion commissioned by the University of Zurich)


From the Swiss perspective, the relevant legal basis is to be found in the form of the Swiss Copyright Act (URG) and a number of international agreements, in particular the WIPO Copyright Treaty (WCT) and the Revised Berne Convention (RBC).

The object of protection of copyright is a work as an intellectual creation (Art. 2 Para. 1, URG), and this, as a matter of principle, irrespective of its embodiment in a physical work. Thus, for instance, it is not the specific graphic design of a paper that is protected, but only the article "of itself". Hence copyright protection exists independently of whether the article is represented in the form of a manuscript, the published publisher's PDF with or without publisher's logo or in any other manner.

Intellectual creations only enjoy copyright protection to the extent that they have an "individual nature" (Art. 2 Para. 1, URG). With scientific works, which are mentioned separately in the Act (Art. 2 Paras. 2 a and d, URG), the individual nature is to be found less in the contents of the work - since the contents will be determined strongly by the logics of the subject - but rather in the specific linguistic or stylistic form, in the wording and the structuring of the material. As a matter of principle, scientific publications are subject to copyright unless they are a mere compilation of data.

Swiss Copyright consists of a number of sub-rights (Arts, 9-15, URG). These include, to begin with, the user rights such as the rights to reproduce, to distribute and to make available the copyright work (Art. 10, URG). In addition, the author also has the right to recognition of his authorship and the right to decide on the first publication of the work (Art. 9, URG), as well as the right to the integrity of his work (Art. 11, URG). In addition, there are rights that relate to individual copies of the work (Arts. 13-15, URG) such as the right of access to an original copy. The individual rights can again be further subdivided. With Open Access uses and the contracts concluded in this context, a precise examination must be made of what sub-rights under copyright are affected.

Copyright is subject to certain limitations (Art. 19 et seq., URG). Where the use of a work falls within a limitation, it may be unrestricted, i.e. possible without the consent of the copyright holder; however, depending on the use, it may be subject to the payment of a fee (e.g. Art. 20, URG). Of interest for Open Access use are, above all, the limitations of personal use (Art. 19 Para. 1 a, URG), internal use (Art. 19 Para. 1 c) and the making of archive copies (Art. 12 Para. 1 and 1bis, URG).

Competition Law

Open Access platforms constitute a part of the publishing sector and at the same time represent a potential competitor to it. For this reason, competition law aspects must also be considered. The relevant legal basis is to be found in the Anti-Trust Act (Kartellgesetz - KG) and the Federal Act against Unfair Competition (UWG).

In the context of Open Access, the focus is on the question of the extent to which scientific publishers are subject to competition law monitoring in terms of pricing and access to the works controlled by them.

Contract law

The grant of copyright to scientific works is by means of contracts. Of interest in connection with Open Access use are, above all, the publishing contract and standard terms of business (STBs) that, if the parties involved consent, likewise have the status of a contract. The relevant legal basis is the Code of Obligations (OR), in particular the regulation of the contract of publication (Arts. 380 et seq. of the OR) as well as the copyright contract law principles that are expressed in Art. 16 of the URG.

Contracts take priority over non-mandatory legislation, but not over the binding legislation. According ot Arts. 380 et seq. of the OR, publishing contract law is entirely non-mandatory, and the URG contains practically no binding regulations specifically for copyright contracts. This means that the contracting parties can as a matter of principle abandon these rules. If for instance a publishing contract lays down that a second publication of the work in a repository is forbidden or only permitted under specific conditions (e.g. omitting the publisher's logo and the publisher's page numbers), there is as a general rule, no statutory, copyright or publishing contract law rule, that would forbid such a clause.

However, the anti-trust law provision of Art. 7 of the KG, concerning unlawful conduct by market-dominant enterprises, is binding. In the present context, however, it only applies in individual exceptional cases.

International Private Law

In international constellations, it is necessary to determine the applicable law, i.e. it must be clarified whether the factual constellation in question is to be assessed according to Swiss or a foreign law. It must first be determined whether there is a legal venue in Switzerland; the legal basis for this is to be found, above all, in the Lugano Convention (LC) and in the Swiss Federal Act on International Private Law (Bundesgesetz über das Internationale Privatrecht - IPRG). If a Swiss court has jurisdiction, it answers the question concerning the applicable law according to the provisions of the Swiss law on conflict of laws, which in turn is reguIated in the IPRG.

Copyright infringement is as a matter of principle subject to the country of protection principle, i.e. the law applies of the country in whose territory copyright protection is claimed (Art. 110 Para. 1, IPRG).

However, a distinction must be made between infringement of copyright and breaches of contract. Publishing contracts are, as a matter of principle, subject to the law of the country in which the publisher has its business establishment (according to the prevailing legal opinion on the interpretation of Art. 117 IPRG).

In addition, it must be examined in each case whether the parties have concluded a valid agreement concerning the applicable law. If so, it takes priority.

Further aspects

Criminal law: It should be pointed out that copyright and competition law infringements may have not only civil law but also criminal law consequences (Art. 67 et seq., URG, Art. 54 et seq., KG, Art. 23 et seq., UWG).

Public law: Scientific publications are often made available by public law institutions and to this extent depend in many respects on public law aspects. Mention must be made for instance of the organisational regulations for universities and libraries, the law concerning the employment of researchers at universities and the university doctoral regulations with their provisions concerning the online publication of dissertations.

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