Performing Open Access - on 13th December artists, academics and artistic-scientific staff exchanged came together and shared their needs around Open Access. As part of the open-access.network, the Open-Access-Büro Berlin and the Universitätsbibliothek der Universität der Künste organised an interactive workshop that addressed the performing arts. The 25 participants met in Gather.town for exchange and networking.
At the beginning, Jason Corff (Hochschulübergreifendes Zentrum Tanz) took the audience on a journey that showed his work, which is situated between cartography and choreography. "Open Access" does not always mean the same - where the sciences have different requirements for making knowledge available, artistic content produces different publication formats - such as video recordings or enhanced publication - and has also a different understanding of one's own work. Corff pointed out the challenges he encounters during his research. For example, "access to research", the search for publications, is already severely hampered by a lack of vocabulary.
From the insights into the practice, the participants got information about practical and the legal aspects. Dr. Paul Klimpel (irights.law) referred to the performative moment of creation, the work, which consists in the performance or the moment of performance itself. Reproduction thus have a somewhat different understanding in the performing arts. To record what has been created might sometimes be less important than the moment of performance. Sometimes artists do have the feeling of loss of control, which is often expressed in choosing the licence CC-BY-NC-ND for their own work. Behind lie fears of unwanted use, not being crediting or a big changes in / of one's own work. A Multitude of legal aspects must be considered, from copyright and the range from personal rights to performance rights.
Dr. Anna Luise Kiss, rector of Hochschule für Schauspielkunst Ernst Busch, emphasised why it is nevertheless important to advocate for barrier-free publications. She states out the performing arts' immanent turn towards openness on many levels: Digital documentation serves as a sounding board outside its own community, she said, and the process enables a backlash towards the Arts. Thus, Open Access publications, such as in the Journal of Artistic Research, are an "instrument of openness" that promotes an examination of what has been created. She also sees the public genesis of the performing arts, the per se desire to present, as the best starting position for Open Access.
In a part dedicated to the topics of publications and support, Casper Schipper presented the publication platform Research Catalogue. In addition to a Europe-wide institutional connection, the author has the opportunity to "self-publish" files, research data and descriptions of their own work as an "exposition". The platform should fulfill the needs of the arts and offers an all-in-one presentation of one's own work. Compared to other repositories, the Research Catalogue is not just a publication platform, but an exhibition of artistic and scholarly work. Afterwards, Peggy Große (arthistoricum.net) presented the services and services of the NFDI4Culture, including guidelines, a repository and "Radar4Culture". The consortium's work thrives on participation, in the form of forums, plenaries and #CultureHours. At two virtual tables, the participants had the opportunity to address their questions to the previous speakers and enter into conversation with each other.
The afternoon's speakers and discussants addressed the opportunities and challenges of Open Access in the performing arts. The results of a survey by the Fachinformationsdienstes Darstellende Kunst (FID) on the topic of "Publishing Research Data", presented by Franziska Voß and Julia Beck, showed that the respondents have difficulties in finding or re-using data, but that only a small percentage of them publish open research data themselves. The FID provides researchers with access to open access literature via free purchase. PD Dr. Dr. Grischka Petri (Leibniz-Institut für Informationsinfrastruktur Karlsruhe) addressed questions and concerns about copyright and licensing. He is one of the supervisors of the NFDI4Culture Legal Helpdesk. He pointed out the special challenges associated with the "perception formats" in the performing arts. For example, performance, broadcasting rights and scripts are parallel - but how do property rights relate to each other?
A report by Till Ansgar Baumhauer (Hochschule für Bildende Künste Dresden) shed light on the EU-funded project EU4Art. He emphasised that the process of creation was becoming increasingly important and thus "intermediate data" played an important role. The obligation to make the content of work available in open access poses questions for the international project around data sources and the curation of data volumes.
The day ended with an interactive exchange of experiences according to the motto "Bring your own problem". The participants addressed the questions to each other. Topics included the rights of a theatre publisher to a work resulting from its translation (the author had already been dead for 70 years) or the clarification of rights in the case that a publisher does no longer exists. The discussion revealed a desideratum: so far, there is a lack of a publicly funded possibility to deposit multimedia contents in compliance with the FAIR principles. It remains a challenge for the Kunsthoschulen to contribute their expertise.
The one-day workshop brought together commissioners, artists and academics from the field of the performing arts for the first time and built a way to the future. In addition to a state funding for a legally compliant publication platform, networking within the community is needed. It is important to teach students about open access during their studies and collect existing services. In order to facilitate "access to research", in the words of Jason Corff, a commonly used vocabulary would be needed. Despite many fields of activity, the performing arts have set out to share their work and knowledge....
Legal Basis for Publishing Agreements A publishing agreement is a special contract with no requirements as to form that is usually concluded between an author and a publisher when publishing a contribution in a scholarly journal, an edited collection, or a monograph. It regulates the extent of the rights of use in the work that are granted to the publisher. Germany In Germany, publishing agreements are governed by Sections 31–44 of the German Copyright Act (UrhG) and by the German Publishing Act (VerlG) . Pursuant to Section 8 of the Publishing Act, an exclusive right of use is granted to the publisher unless otherwise specified. This right is known as the Verlagsrecht (publisher’s right). Irrespective of the rights granted to the publisher in the publishing agreement, Section 38 of the German Copyright Act gives authors of scientific contributions that result from research at least half of which was publicly funded and that appear in a collection that is published periodically at least twice a year the right to make the accepted manuscript version of the works available to the public in a repository 12 months after first publication. The right to self-archive the works applies even if the publishers were granted exclusive rights of use ( Brehm & Rücknagel, 2021 ). Austria In Austria , publishing agreements are considered to be a separate contract type and are regulated in Sections 1172 and seq. of the Austrian Civil Code (ABGB ). However, the most important provisions applicable to publishing agreements are laid down in the Austrian Copyright Act (UrhG ). Sections 23 and 24 and Sections 26–37 UrhG are particularly relevant. Under Section 1172 of the Austrian Civil Code, the author, or their legal successor, undertakes to entrust the work to a publisher for reproduction and distribution on its own account. In return, the publisher undertakes to reproduce and distribute the work. Unless otherwise agreed, it can be assumed that a right of use in the work pursuant to Section 26 UrhG has been granted to the publisher, and that this right is therefore exclusive (see Walter, 2008, p. 820 and seq. ). Further information about the legal situation in Austria in this regard can be found on the website of the Open Science Network Austria (OANA) . Switzerland In Switzerland , the conclusion of a publishing agreement is not subject to a certain form ( Art. 380 and seq. of the Swiss Code of Obligations, OR ). An email exchange or the sending of the manuscript by the author to the publisher with the request to publish it are deemed legally to be a publishing contract if the publisher publishes, or at least promises to publish, the work. Under the Swiss Copyright Act (CopA), exceptions to copyright apply even if the rights in question have been granted to a third party. One example is the exception to copyright in favour of use in enterprises ( Art. 19(1) point c CopA ). However, this exception is subject to various preconditions. The concept of prohibiting the granting of rights in respect of unknown rights of use is unknown in Swiss law. If "all copyrights" were granted before 1995, the now customary online rights are also affected. Further information on publishing agreements and legal questions in Switzerland can be found on the website of the Main Library of the University of Zurich . Agreements with Publishers Outside Germany In the case of agreements with publishers outside Germany, the same applies as in the case of German publishers. Should the agreements be available only in English, care must be taken not to grant the publisher exclusive rights . Zweitveröffentlichungsrecht für Wissenschaftler*innen Quelle: Brehm, E. (2021). Zweitveröffentlichungsrecht für Wissenschaftler*innen, open-access.network. https://doi.org/10.5446/51789 ( CC BY 3.0 DE ) Practical Tip Here you can find a German handout of the Communication, Information, Media Center (KIM) of the University of Konstanz on the topic of self-archiving as well as a German information page of the BMBF on the topic of self-archiving rights. Practical Tip Find further legal information regarding Austria here: Open Science Network Austria (OANA) (German). Depending on the publisher and the journal, the remaining rights may be more or less extensive or limited, although many publishers now expressly allow their authors to self-archive their contributions in a repository. An overview of publishers’ open access archiving policies can be found in the Open Policy Finder database. A fee may be agreed in the publishing agreement, and it is tacitly deemed to have been agreed if the delivery of a manuscript can usually be expected only on payment of a fee. However, a fee is not one of the essential contractual obligations – the so-called cardinal obligations – under the publishing agreement. Although publishing law does not contain any provisions about rights other than reproduction and distribution, the publisher is, as a rule, also granted other exclusive rights of use (e.g. the right to make the work available to the public, which applies to publications on the Internet). The wording in the publishing agreement is decisive – and here contractual freedom applies. The various rights of use can be granted individually. Contractual provisions take precedence over dispositive statutory provisions. The following cases must be distinguished: The transfer of copyright In Germany ( Section 29 UrhG ) and Austria ( Section 23 UrhG ) copyright is not transferrable. In Switzerland, copyright is transferrable ( Art. 16 CopA ). Authors may transfer their rights to a publisher. Example: In the publishing agreement, "the author assigns copyright [the publisher] without limitation of space, time, or content". Licensing/rights of use Authors retain copyright but grant rights of use to third parties. Granting of an exclusive licence /exclusive rights of use: Authors undertake not to grant any other licences for the work in question. Example: "The author grants the publisher the exclusive right to reproduce and distribute the work (the publisher’s right) without limitation of space and content for the duration of the statutory copyright." Granting of a non-exclusive licence/non-exclusive rights of use : Authors may grant other persons or organisations further non-exclusive licences/non-exclusive rights of use. Example: "For an online publication of the work, the publisher is granted a non-exclusive right of use without an obligation of use." Possibilities of Contractually Securing the Right to Self-Archive Works in Open Access Repositories In the case of publishing agreements concluded in the past, the question arises as to what provisions the agreement contains with regard to the author’s right to make the work available to the public online in parallel with publication . By contrast, when concluding new publishing agreements, there are various ways of contractually securing this right. Some authors who publish their articles in fee-based journals but who nonetheless want to retain the right to make the work available in open access in parallel with publication, cross out certain passages in the publishing agreement before signing it. Another possibility is to supplement the publishing agreement to be signed with addenda or text passages in order to secure one’s rights to make the work available in open access . Many research performing organisations now expressly expect this. For example, the University of Zurich requires its researchers to obtain a legal guarantee from the publisher "to make the complete work accessible in ZORA [the institutional repository], if applicable after an embargo period." Crossing Out Words in the Publishing Agreement Authors can amend publishing agreements that restrict their right to self-archive the work in a repository by clearly crossing out wording such as exclusive transfer of all rights or other restrictive formulations, for example exclusive rights of use or exploitation rights . It should be noted, in particular, that the term exclusive rights grants the publisher a legal position that, as a rule, excludes the authors from exploiting the works themselves. In an accompanying letter, authors should draw attention to the changes they have made to the contract. Should a contract be available only in electronic form, the words can be crossed out in the print copy. If only digital agreement to the terms of the contract is provided for, authors can request the publisher to make the contract available in print form. Addenda As an alternative to crossing out words, authors can attach an addendum to the publishing agreement in order to retain a non-exclusive right to deposit the work in an online repository. To acquire legal validity, this addendum must be countersigned by the publisher. The most well-known addendum is the SPARC Author's Addendum . It was developed by the Scholarly Publishing and Academic Resources Coalition (SPARC) , an alliance of libraries in the USA and Canada that works to encourage the development of new models of scholarly communication that increase the dissemination of scholarly literature and reduce the financial pressure on libraries. The addendum comprises two parts: the actual addendum and instructions for use. Via the Scholar’s Copyright Addendum Engine provided by Science Commons and SPARC, authors can automatically generate an addendum as required in one of three variants: Access – Reuse , Delayed Access , or Immediate Access . Access – Reuse means that the author retains sufficient rights to make the work available to the public under a Creative Commons Attribution NonCommercial (CC BY-NC) licence in addition to publishing it with a publisher. Under the Delayed Access model, the author has the right to make their final version of the article (author’s accepted manuscript, AAM) available to the public online immediately, but they may not make the publisher’s version available until six months after the date of publication. By contrast, the Immediate Access option gives the author the right to make both the publisher’s version and the author’s accepted manuscript version available to the public online immediately. Examples of addenda "The publisher agrees that the author shall retain the non-exclusive right to deposit a digital copy of the document before/during/after publication by the publisher on an open access academic non-profit server for an unlimited period. The author undertakes to cite the original document on the academic non-profit server ." or "For an online publication of the work, the publisher is granted a non-exclusive right of use without an obligation of use. The author is free to make the work available to the public online in PDF form via their personal website, an institutional server, or a suitable disciplinary repository." or (in jurisdictions where copyright is transferrable) "I hereby declare that I do not wish to transfer full copyright to [name of the publisher] but reserve the right to self-archive the article in full in an open access repository." A further example of an addendum is provided by MIT Libraries: Managing your Copyright . However, authors must be aware of the consequences when they retain only non-exclusive rights of use. This prevents them from making the contribution available under an open access licence, as the decision on licensing remains with the publisher. It is therefore preferable not to grant exclusive rights of use to the publisher in the first place . References Brehm, E., & Rücknagel, J. (2021). Zweitveröffentlichungsrecht für Wissenschaftler*innen . https://doi.org/10.5446/51789 Walter, M. M. (2008). Österreichisches Urheberrecht: Handbuch. 1. Teil: Materielles Urheberrecht, Leistungsschutzrecht und Urhebervertragsrecht . Verlag Medien & Recht. Further Reading Brettschneider, P. (2020). Rechtsfragen beim Veröffentlichen - Rechtlichen Aspekten des Publizierens von Texten und Daten . https://doi.org/10.5281/zenodo.4018749 Brettschneider, P., & Universität Konstanz. (2020). Rechtsfragen beim Veröffentlichen . https://www.youtube.com/watch?v=CrvnMLxGppI&t=1s Hirtle, P. (2006). Author Addenda. An Examination of Five Alternatives. D-Lib Magazine , 12 (11). https://doi.org/10.1045/november2006-hirtle Mantz, R. (2006). Open Access-Lizenzen und Rechtsübertragung bei Open Access-Werken. In G. Spindler (Ed.), Rechtliche Rahmenbedingungen von Open Access-Publikationen (pp. 55–104). Universitätsverlag Göttingen. https://www.retosphere.de/files/Mantz,Open_Access-Lizenzen_und_Rechtsuebertragung_bei_Open_Access-Werken.pdf SPARC. (2006). Author Rights. Using the SPARC Author Addendum to secure your rights as the author of a journal article. https://sparcopen.org/wp-content/uploads/2016/01/SPARC-Author-Rights-Brochure-2006.pdf Spielkamp, M. & iRights.Lab (2015). Zweitveröffentlichungsrecht für Wissenschaftler. Geltende Rechtslage und Handlungsempfehlungen. Online verfügbar unter https://irights.info/wp-content/uploads/2017/09/zweitveroeffentlichungsrecht-20150425.pdf Steinhauer, E. W. (2007). Rechtsfragen und praktische Umsetzung von Open Access . https://kobra.uni-kassel.de/bitstream/handle/123456789/2007032317433/Kassel%20II.pdf?sequence=1 Thema Creative Commons + Lizenzen . (n.d.). IRights Info. https://irights.info/kategorie/themen/creative-commons-lizenzen Please note that the content presented here is intended for information purposes only and does not constitute legal advice....
