ORCID DE Online-Seminar: Persistent Identifier in Publikations- und Affiliationsrichtlinien
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Open Access About us
Initials of the platform The open-access.net platform provides comprehensive information on the subject of Open Access (OA) and offers practical advice on its implementation. Developed collaboratively by the Freie Universität Berlin and the Universities of Goettingen, Konstanz, and Bielefeld, open-access.net first went online at the beginning of May 2007. Target Groups The platform's target groups include all relevant stakeholders in the science sector, especially the scientists and scholars themselves, university and research institution managers, infrastructure service providers such as libraries and data centres, and funding agencies and policy makers. Quick and efficient access to relevant topics open-access.net provides easy, one-stop access to comprehensive information on OA. Aspects covered include OA concepts, legal, organisational and technical frameworks, concrete implementation experiences, initiatives, services, service providers, and position papers. The target-group-oriented and discipline-specific presentation of the content enables users to access relevant themes quickly and efficiently. Moreover, the platform offers practical implementation advice and answers to fundamental questions regarding OA. Collaborations In collaboration with cooperation partners in Austria (the University of Vienna) and Switzerland (the University of Zurich), country-specific web pages for these two countries have been integrated into the platform - especially in the Legal Issues section. Each year since 2007, the information platform has organised the "Open Access Days" at alternating venues in collaboration with local partners. This event is the key conference on OA and Open Science in the German-speaking area. Updates With funding from the Ministry of Science, Research and the Arts (MWK) of the State of Baden-Württemberg, the platform underwent a complete technical and substantive overhaul in 2015. Project open-access.network Verein open-access.network e.V....
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Open Access Event calendar
We are happy to receive information about events at info@open-access.network 1 2 Next 2026 Aug 20 Governance gestalten: Wie Journals den Diamond Open Access Standard umsetzen 20. August 2026 2026 Sep 17 OJS-Workshop 2026 (Hamburg) 17. September 2026 until 18. September 2026 2026 Sep 21 OASPA Annual Conference (Zagreb, Croatia) 21. September 2026 until 23. September 2026 2026 Sep 28 Open-Access-Tage 2026 (Linz) 28. September 2026 until 30. September 2026 2026 Oct 05 Open Science Forum Mitteldeutschland 2026 (Leipzig) 5. October 2026 Open Science als Gestaltungsaufgabe – Forschungsbewertung und Infrastruktur für die Wissenschaftspraxis 2027 Mar 03 E-Science-Tage 2027 (hybrid) 3. March 2027 until 5. March 2027 1 2 Next To the event archive...
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Open Access Financing
Learn more about Open Access Financing Research Funders and Open Access Business Models for Journals Business Models for Books...
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Open Access Legal Issues
Find answers to legal questions here Legal Issues in Germany Legal Issues in Austria Legal Issues in Switzerland Licences Publishing Agreements Data Protection and Open Access Data protection is particularly of interest in the case of the open access publication of research data, or data sharing. In some fields, for example medicine or psychology, data protection in the context of open access is especially important because sensitive personal data may be processed. At European level, data protection is regulated by the General Data Protection Regulation (GDPR) . As an EU decree law, it must be applied directly. The GDPR therefore takes precedence over national data protection law. In Switzerland, the Federal Act on Data Protection ( FADP, SR 235.1) applies. For higher education institutions in Switzerland, the data protection laws of the respective cantons are usually applicable. Further information on the topic of data protection and research data can be found on the website forschungsdaten.info ....
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Open Access Legal Issues in Germany
Introduction In connection with open access strategies , numerous legal questions arise for authors and for operators of publication platforms. They include, for example, questions regarding secondary publication rights when operating open access repositories . In addition, operators of publication platforms such as repositories and university presses must consider liability issues. On these pages, you will find introductory information on the statutory frameworks in Germany that are of relevance to the topic of open access. Please note that the content presented here is intended for information purposes only and does not constitute legal advice. When publishing works for the first time, or when making published works available to the public, authors and operators of publication platforms must comply with the relevant statutory frameworks , in particular the German Civil Code (BGB) and the German Act on Copyright and Related Rights (UrhG). As a consequence of diverse copyright reforms at European Union level and in Germany, copyright law has been fundamentally updated, also with regard to the digital possibilities in science and publishing. In doing so, possibilities for authors to make a version of their published works available to the public online (referred to in Germany as "the secondary publication right" [ Zweitveröffentlichungsrecht ]) have also been created. Irrespective of this, many publishers now allow authors to self-archive a version of their works in an institutional repository, albeit often subject to conditions such as an embargo period between the date of first publication of the work by the publisher and the date on which the work is made available to the public on the Internet. The open access policies of many publishers can be found in the Open Policy Finder database. However, whether and in what form self-archiving is permitted ultimately depends on the terms of the licensing agreement concluded with the publisher. If the licensing agreement forbids self-archiving, the publisher’s entry in the Open Policy Finder database will only be an indication of whether renegotiating the agreement is likely to be successful. Therefore, whether and in what way secondary publication is possible must always be assessed case by case. To give the authors and users of open access content legal certainty, the first publication of this content should, if possible, be made available under an open content licence . For operators of repositories, the liability risks associated with the operation of repositories are of particular importance. Especially when publishing data , data protection aspects or privacy and publicity rights may play a role. Copyright Sources of copyright Copyright law regulates at a moral, non-economic level the relationships between creators and the works they have created. It also regulates the way in which these works may be exploited, and the extent to which creators may claim protection for their works. Article 27 (2) of the Universal Declaration of Human Rights of 10 December 1948 states that everyone has the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which they are the author. In the constitution of the Federal Republic of Germany (Grundgesetz), this principle is enshrined in the right to free development of personality (Article 2), the right to freedom of expression in the arts and sciences (Article 5 [3]), and the guarantee of property (Article 14). For the territory of the Federal Republic of Germany, these rights are given concrete statutory form through the Act on Copyright and Related Rights ( UrhG ) and the Act on the Management of Copyright and Related Rights by Collecting Societies . Because copyright law is national law, the way it is framed in other states differs from the framing chosen in Germany. Cases with a cross-border dimension where the states in question are outside the EU are regulated by international treaties to which the Federal Republic has acceded. These treaties include in particular the Berne Convention for the Protection of Literary and Artistic Works as amended in 1979, the Agreement on Trade-Related Aspects of Intellectual Property Rights ( TRIPS ), and the World Intellectual Property Organization (WIPO) Copyright Treaty ( WCT ). In addition, there are a number of international treaties that cover neighbouring rights – that is, rights neighbouring, or related to, copyright. Within the EU, many aspects of copyright have been standardised by directives that member states were obliged to transpose into national law. Object of copyright law Authors are the main focus of copyright law. It regulates their relationships to their literary, scientific, or artistic works. The concept of “a work” is thus central to copyright law. Pursuant to Section 2 (2) of the German Copyright Act (UrhG), a “work” within the meaning of the Act is protected by copyright only if it reaches the requisite level of creativity ( Schöpfungshöhe ) – that is, it must be the result of a process of human creation that constitutes a personal creation in perceivable form and that has intellectual content and a personalised character. Further, the individuality of the author must be recognisable in “the author’s own intellectual creation”. The ideas, facts, and information contained in the work are not themselves protected. Pursuant to Section 2 (1) UrhG, personal creations in perceivable form include, for example, texts, speeches, computer programs, music, paintings, sculptures, buildings, photographic works, cinematographic works, and technical drawings and plans. Ownership of the work itself must be distinguished from copyright protection of the work: Whereas ownership of the work can be transferred in a commercial transaction, copyright always remains with the author, even if others have been granted rights of use. Thus, the owner of the work and the owner of the copyright are not necessarily one and the same person. Besides protection of the work under Section 2 (2) UrhG, intellectual creations may also be protected within the framework of “related rights” under Section 70 and seq. UrhG. Here, protection is based not on the quality of the work but rather (depending on the type of related right) on other aspects that constitute the value of the work from the perspective of the legislature. In the case of database rights (Section 87b UrhG), for example, one prerequisite for protection is that a substantial investment and effort was required to create the database. In the case of scientific editions (Section 70 UrhG), one prerequisite for protection is that “they represent the result of scientifically organised activity”. If a work or other subject matter does not satisfy these conditions, it is not protected by related rights. Protection by copyright accrues immediately upon creation of a subject matter that satisfies the above-mentioned conditions for protection. In other words, registration is not required. If several persons make an independent creative contribution to a work, they are deemed under Section 8 (1) UrhG to be joint authors if it is not possible to separately exploit their individual contributions to the work. This means that all those involved in the creation of the work are protected by the provisions of the Copyright Act. However, it also means they may only jointly avail of the rights resulting therefrom. Unless otherwise agreed, they may obtain their share of the proceeds derived from any exploitation of the work only “in accordance with the extent of their involvement in the creation of the work” (Sections 8 [2] and [3] UrhG). Legal relationship between authors and their works The rights of authors under copyright law can be divided into two groups: on the one hand, the moral rights of authors, which are inalienable in principle; on the other hand, the rights to commercially exploit the work. Moral rights Figuratively speaking, the moral rights of authors are the inseverable umbilical cord between authors and their works, by means of which authors remain permanently attached to their works. First and foremost, these moral rights grant authors the right to decide whether their works should be published at all (right of first publication; Section 12 UrhG). When the works are published, authors may determine whether they should bear a designation of authorship, and which designation (name/pseudonym) should be used (Section 13 UrhG). And finally, authors may always defend themselves against distortions of their works (Section 14 UrhG). Although these rights are formulated in the German Copyright Act as inalienable rights, this is not always the case in practice. Exploitation rights Exploitation rights above all ensure that authors have the right to permit third parties to use their intellectual property, where appropriate against payment of a fee. This permission may be limited in respect of persons, content, place, or time, or it may be so comprehensive that, in economic terms, the third party to whom the permission has been granted assumes the position of the author. Rights of use may be granted as non-exclusive or exclusive rights. If authors grant several parties equally the right to use the work in a certain way, a non-exclusive right of use is granted. Licensees must tolerate that the work is used at the same time in the same way by others besides themselves, and that the authors retain the right to allow further third parties to use their intellectual property. Example: If an author grants the operator of a repository a non-exclusive right to publish their article in the repository – which includes granting all the necessary rights of use, for example the right of reproduction, the right of distribution, and the right of making the work available to the public (online provision) – they may still publish the article in a scholarly journal and grant the publisher the necessary rights of use. However, if the author has already granted a publisher exclusive rights to publish the work in a journal, they can no longer grant others any rights of use for this type of use. Exclusive rights of use entitle licensees to exclude third parties from using the rights granted exclusively to them in relation to the work in question, and to do so in a manner in which otherwise only the authors themselves could. If authors grant exclusive rights for a certain type of use, they may no longer grant other third parties rights for the same type of use. Example: If an author grants a publisher exclusive rights of use to publish their article in a journal – which includes exclusively granting all the necessary rights of use, for example the right of reproduction, the right of distribution, and the right of making the work available to the public online – they may initially no longer self-archive the work in a repository, unless they reserved that right in the publishing agreement (for information on the secondary publication right under Section 38 [4] UrhG, see below). Legal relationship between author and user Limitations on copyright Based on the above, only the authors are entitled in principle to permit others to use – or to exclude others from using – their intellectual property. However, in view of the social responsibility of ownership, the German legislature has limited this exclusivity in such a way that it permits by law the use of the intellectual property of another exceptionally in certain cases if this is in the overriding interest of the general public. In the limitations on copyright (Section 44a and seq. UrhG), users are granted rights to use copyrighted works, and, as a rule, authors cannot forbid them to do so. In the context of research and teaching, the following limitations on copyright are particularly relevant: Up to 75 per cent of a work may be reproduced for personal scientific research (Section 60c [2] UrhG). Up to 15 per cent of a work may be reproduced, distributed, and made available to the public for the purpose of non-commercial research for the following circles of persons (Section 60c [1] UrhG): “for a specifically delimited circle of persons for their personal scientific research” (access limited to this specific circle of persons) and “for individual third persons insofar as this serves the monitoring of the quality of scientific research”. Illustrations, individual articles from the same professional or scientific journal , other small-scale works, and out-of-commerce works may be reproduced, distributed, and made available to the public in full (Section 60c [3] UrhG). “For the purpose of illustration in teaching at educational establishments, up to 15 per cent of a published work may be reproduced, distributed, made available to the public, and otherwise communicated to the public on a non-commercial basis: for teachers and participants at the respective event, for teachers and examiners at the same educational establishment, and for third persons insofar as this serves the presentation of lessons or lectures or the results of tuition or training or learning outcomes at the educational establishment” (Section 60a [1] UrhG). For the purpose of text und data mining (Brehm, 2022), works may be reproduced: for non-commercial research purposes in accordance with the provisions of Section 60d UrhG; for commercial research purposes and all other purposes in accordance with the provisions of Section 44b UrhG. In addition, there are a range of other limitations on the author’s power of disposal in favour of libraries, archives, museums, and other third parties involved in the process of training and further educating the public. As a rule, authors receive remuneration for the use of a work within the framework of the limitations on copyright. Collecting societies such as GEMA and VG WORT charge manufacturers and importers a “levy on hardware and blank media”, which is then distributed to the authors. For other uses, the fees are paid directly to GEMA and VG Wort based on agreements. However, this sometimes presupposes membership of the authors in, or at least registration of the work with, the collecting society – as is the case with VG WORT. Handbook on the Right of Citation Citing from the copyrighted works of others is permitted under certain conditions. Information on this can be found in Handreichung Zitatrecht , a handbook on the right of citation published by the Communication, Information, Media Centre (KIM) at the University of Konstanz (KIM, 2020). Licensing Agreements Apart from the aforementioned limitations on copyright, authors may freely manage their legal relationships with third parties in respect of works that they have created. This means that they are in a position to negotiate with a contractual partner of their choice a largely customisable agreement on the authorisation of the use of their intellectual property on terms to be determined by themselves (“licensing agreement”). In practice, it sometimes happens that economically stronger users impose their conditions on authors. However, authors may also grant a free licence that allows users to reuse their works free of charge in a manner that suits the authors. Standardised licensing models such as open source licences (e.g., the GNU General Public License ) or open content licences (e.g., Creative Commons licences) are often used for this purpose. Special Case: Authors in Employment or Service Relationships Works eligible for copyright protection that are created within the framework of an employment or service relationship constitute a special case. Copyright remains with the authors, as it is an inalienable right. However, in the case of works that are created by employees in the execution of their duties or following the instructions of the employer, the employer or principal acquires the right of use in the works at the latest upon delivery of the works – which the authors may be obliged to do under the terms of the employment contract. Derogations from this general rule may be agreed upon in the employment contract. University teachers and scientific personnel who are not bound by instructions in the conduct of their research are as a matter of principle exempt from the aforementioned general rule. Nor are they obliged to offer to the institution that employs them works created in the context of research activities that are not bound by instructions. However, if the research activities are conducted on the basis of concrete instructions, university teachers and scientific personnel are also subject to the provision described above. The Secondary Publication Right for Authors of Scientific Contributions A further special arrangement, which privileges the authors of scientific contributions, entered into force in Germany on 1 January 2014. If authors have written a scientific contribution in the context of research activities, at least half of which are/were financed by public funds that do not stem from the basic budget of a public research institution or higher education institution, and if the contribution was published in a collection that is published periodically at least twice per year – especially in a scholarly journal, they may, pursuant to Section 38 (4) UrhG, make the contribution available to the public online in the accepted manuscript version for non-commercial purposes upon expiry of 12 months after first publication, provided they cite the source of the first publication. The contribution may be made available only online. Thus, secondary publication in print form is not covered. The provision in Section 38 (4) UrhG may not be derogated from by contract, even if the authors have granted a third party – for example a scholarly publisher – exclusive rights of use. This somewhat unwieldy provision is the result of a compromise that has been subject to criticism, especially by publishers. Although authors are not obliged to make use of the secondary publication right, the provision has opened a further channel of communication, and it is now possible to distribute scientific knowledge via a channel other than that monopolised by the classical scholarly journals. The provision has been criticised insofar as it covers only contributions that result from third-party-funded projects or from research activities conducted at publicly funded non-university research institutions. It has been argued that this disadvantages research activities funded from the basic budget, and thus violates the principle of equality enshrined in Article 3 (1) of the constitution of the Federal Republic of Germany (Grundgesetz). It has been further argued that the wording should therefore be understood more broadly to cover all scientific contributions that result from research activities at least half of which were financed by public funds. However, no judicial decisions have been rendered to date in this matter. Although many individual questions regarding this statutory provision are still open, it can be deemed certain that “the accepted manuscript version” means the version that has undergone peer review and been accepted for publication. In other words, it is substantively identical to the first publication, and differs from it only by the absence of the publisher’s layout and logo. The secondary publication right under Section 38 (4) UrhG does not allow the scientific contribution to be made available under an open content licence. Nor may it be made available for commercial purposes, for example by charging a fee. Useful resources in this connection are the FAQ zum Zweitveröffentlichungsrecht [FAQ on the Secondary Publication Right published by the Alliance of Science Organisations in Germany’s priority initiative Digital Information, and the online talk “ Zweitveröffentlichungsrecht für Wissenschaftler*innen ” [The Secondary Publication Right for Researchers] in the open-access.network series “Open Access Talk” (Brehm, 2021). Wo und wie offen publizieren? “Wo und wie offen publizieren?” [Where and how to publish in open access?], the first online seminar in the open-access.network series “Open Access Talk” (Rücknagel & Schmeja, 2020), provides an introduction to open access. Copyright in Academic Work BMBF-Guideline about the most important regulations on copyright for education and research in Germany. Open Policy Finder Even if an author has granted the publisher exclusive rights of use in a work, it is possible that, on request, the publisher will allow the work to be self-archived in parallel with publication on the author’s personal website or in a repository. Whether an author may self-archive a work in parallel with publication depends on the terms of the licensing agreement concluded with the publisher. If self-archiving in parallel with publication is not mentioned in the agreement, it is not permitted, and the author is bound thereby. However, you can check the Open Policy Finder database to see whether the publisher in question permits self-archiving in parallel with publication. The information in the Open Policy Finder database is not legally binding for the publisher and does not permit an author to self-archive a work in parallel with publication if this is not provided for in the publishing agreement. However, the information in the Open Policy Finder database does give an indication of whether renegotiating the rights is likely to be successful. The Open Policy Finder database is updated by the scientific community on a continuous basis. oa.helpdesk Here you can ask concrete questions about open access. Making Documents Available on Publication Platforms Time and again, authors and operators of publication platforms face the question whether a specific document may be made available to the public on their own website or on a publication platform (e.g., a repository) without running the risk of violating the rights of third parties. The answer to this question depends largely on the rights that the author (still) holds in the work in question. If the document has already been published elsewhere, third parties (e.g., a publisher) may have been granted rights in the document – for example under a licensing agreement. If the publisher has been granted exclusive rights of use in the work, and the self-archiving of the work in a repository is not explicitly permitted under the licensing agreement, these rights of use may not be granted a second time. Further, it is decisive whether the author has a secondary publication right pursuant to Section 38 (4) of the German Copyright Act (UrhG). And finally, the right to secondary publication (e.g., in a repository or a personal archive) might also be restored in the context of renegotiations with the publisher. It must therefore be examined on a case-by-case basis whether there are any legal barriers to self-archiving. The following scenarios provide an overview of the legal considerations that must be taken into account: The Initial Situation All rights are held by the author If the author of a copyrighted work has not yet concluded an agreement on the use of the work with a third-party (e.g., a publisher), copyright is still held by the author, and it is legally possible to publish the work in a medium of the author’s choice. If the work is published via a repository or with a publisher – for example in an open access journal – the author must conclude a licensing agreement with the repository operator or the publisher permitting them to do so. To publish the work via a repository, it suffices for the author to grant a non-exclusive right of use to “make the work available to the public (online provision) via the repository”. The author may – without hesitation – also make the work available under an open content licence that provides for a non-exclusive right of use to make the work available to the public. In many cases nowadays, works are published solely via repositories. This is especially the case when the examination, publication, or doctoral regulations of higher education institutions or the requirements of research funders either expressly permit or even mandate self-archiving in a repository. Agreements regarding dual publishing are also possible. Here, the author has the possibility to publish the work with a publisher or on a print-on-demand basis as well as making it available to the public via the repository. The constellations are numerous and should be discussed with the repository operator. The exception Non-exclusive rights of use have already been granted If the author has already granted a third party non-exclusive rights of use in the work (e.g., when self-archiving a preprint in arXiv), this does not prevent the author from additionally self-archiving it on their own personal website or in a repository. For even after granting non-exclusive rights of use to a third party, an author is still in a position to also grant other third parties non-exclusive rights, and thus may also grant the operator of a repository such a right. Even after granting non-exclusive rights of use, exclusive rights of use may still be granted. However, before concluding a contract, the author should make sure to inform the contractual partner that they have already granted non-exclusive rights of use to others. This applies in particular when the work has already been published under an open access licence. The rule A publisher has been granted exclusive rights of use If the author has already granted a third party – for example a publisher – exclusive rights of use in the work, the following constellations must be distinguished: Works published before 1995 In the case of works published before 1995, authors could not yet grant a publisher rights of use that allowed the work to be published on the Internet, as this was still an “unknown type of use” in respect of which contracts could not yet be concluded. However, the German legislature has provided for transitional provisions aimed at enabling the use of these works. According to these provisions, the rights for new types of use developed by 1995 (especially the making available of works via the Internet) are deemed to also to have been granted if: the licensing agreement concluded before 1995 granted all essential rights of use exclusively without limitation of place and time for all types of use known at the time the contract was concluded; after 1 January 2008 no agreement to the contrary was concluded with the author; and the author did not object (Section 137l UrhG). If these conditions are met, the contracting party with whom the author concluded the contract (in case of doubt, the publisher) may also make the work available to the public (online provision). Works published in or after 1995 In the case of works published in or after 1995, it depends on whether the grant of exclusive rights of use to the third party – for example the publisher – included the right to make the work available via the Internet. If this is not expressly stated in the agreement concluded between the author and the third party, pursuant to Section 31 (5) UrhG, only those rights of use are deemed to have been granted that would have had to be granted to achieve the purpose of the agreement ( Übertragungszwecklehre [purpose-of-transfer doctrine]). This includes in any case the right to reproduce and distribute the work in print form, but not the right to make the work available online if this was not explicitly planned. Pursuant to Section 38 (1) sentence 1 UrhG, where the author permits a publisher to include a contribution in a collection that is published periodically (e.g., a journal), then in case of doubt the publisher acquires an exclusive right of reproduction, distribution, and (from 1 January 2014 onwards) making the work available to the public online, unless an explicit arrangement was made between the author and the publisher. Such an arrangement does not have to fulfil specific requirements as to form (e.g., a printed contract). Rather, it may also be contained in a sentence or a brief comment in an email. However, as these exclusive rights are limited to a period of one year following the publication of the contribution (Section 38 [1] sentence 2 UrhG), the author may once again grant non-exclusive or exclusive rights to others after the year has elapsed. If the contribution appeared in a collection that is not published periodically – for example conference proceedings or a festschrift – the rights revert to the author only if permission for the inclusion of the contribution in the collection was not granted for a fee (Section 38 [2] UrhG). However, a number of publishers interpret this provision very generously and allow self-archiving in parallel with publication even if a fee was paid. Therefore, authors should always ask the publisher whether self-archiving in parallel with publication is permitted. Works that were or are published after 1 January 2014 With effect from 1 January 2014, the German legislature created an inalienable secondary publication right for authors of scientific contributions that result from research activities at least half of which were financed by public funds and that were published in a collection that is published periodically at least twice a year (Section 38 [4] UrhG). Regarding the nature of the public funds in question, there is a limitation to the effect that they must be third-party public funds. For contributions that result from research activities that were financed from basic funding or from purely didactic activities – for example of universities that are run as foundations or corporations under public law – the secondary publication right does not apply. However, this condition has been criticised as it leads to unequal treatment between scientists whose research is financed from third-party funds and scientists whose research is funded from an institution’s basic budget, and because it does not follow from the wording of Section 38 (4) UrhG. However, if the conditions for the accrual of the secondary publication right are met, authors may make – or allow others to make – their scientific contributions available to the public in the accepted manuscript version (the version that has undergone peer review and been accepted for publication but before application of the publisher’s layout) for non-commercial purposes upon expiry of one year after the date of first publication. Authors are not obliged to make use of their secondary publication right. However, if they decide to do so, the source of the first publication must be cited. The self-archiving of the contributions in a repository is therefore legally possible in these cases. However, they may not be released under an open access licence. The case of doubt It is often unclear whether making a document available to the public by self-archiving it infringes the rights of third parties. This applies especially in the case of a foreign publisher, and where the publishing agreement is possibly subject to foreign law. In such cases, authors are well advised to make an agreement regarding self-archiving in parallel with publication with the publisher to whom they have granted the right to publish and distribute the document. Liability Law Liability for Copyright Infringement on the Internet The question arises as to who must make good the damage that arises in the case of a violation of intellectual copyright by posting information to a publicly accessible website – that is, who is liable for a rights infringement. In particular the operators of repositories or other publication platforms (e.g., publishers) and the authors who make their documents available to the public on their own personal websites may be exposed to liability risks if they do not correctly assess their behaviour in advance. However, it is possible to minimise the risks, especially by drafting contracts appropriately. Legal Basis of Liability for Making Information Available to the Public on Websites The violation of intellectual property rights may consist in an infringement of the copyrights of authors or of the rights of use granted by authors to third parties (e.g., a publisher). When information is made available to the public on websites, injured parties can often identify only the operators of the website. Anyone who operates a website is a service provider within the meaning of Section 2 (1) of the German Telemedia Act (TMG) ; they may also be a service provider within the meaning of Section 2 of the German Act on the Copyright Liability of Online Content Sharing Service Providers (UrhDaG) . Liability under the German Telemedia Act Website operators are not automatically liable under the German Telemedia Act (TMG) for a rights infringement. A distinction must be made between whether the document that was made available to the public, thereby violating the rights of a third party, is the website operator’s own content or whether it is adopted content or third-party content. Under Section 7 TMG, website operators are always liable for their own content. Content is deemed to be “own content” if the website operator created the information themselves (e.g., their own essay or other text or their own graphic image). “Created themselves” does not mean that the website operator uploaded the information to the website themselves. Rather, the content may have been created and uploaded by an employee or by a third party commissioned by the website operator. Nor must the content have been created for the first time. It suffices that existing own content or existing content created by another person is integrated into the website operator’s website. However, this also means that information created by third parties may become own information if it is adopted by the website operator. In that case, the website operator is responsible under Section 7 TMG for that content. Information is deemed to be “third-party content” if it was entered and integrated into the website by a third party without the knowledge of the website operator, and if the website operator has no control over it – for example information (e.g., social media posts) made available on the platform by users. Under Section 10 TMG, website operators are not responsible for third-party content. However, website operators are also liable for content that they adopt and that they integrate into their website in such a way that – to observers of the website – it appears to be content that the operator of the website created themselves. This is the case in particular if the website operator – themselves or their employees or commissioned third parties – editorially checked or processed the information of third parties before its integration into the website, or if they integrated the information of third parties without labelling it accordingly. Injured parties may above all demand that the infringer eliminate the infringement, cease and desist, and make good the damage caused by the culpable infringement of copyright or exclusive rights of use (Section 97 UrhG). Liability under the Act on the Copyright Liability of Online Content Sharing Service Providers (UrhDaG) Liability under the UrhDaG presupposes that via the service the public is given access to copyright-protected works uploaded by its users (Section 1 UrhDaG). The only service providers that fall within the scope of the Act are providers of services that among other things make available to the public a large amount of copyright-protected content uploaded by third parties, and that act for the purpose of making a profit, for example by generating revenue by advertising content (Section 2 UrhDaG). Where the UrhDaG is applicable, service providers cannot rely on the liability privilege contained in Section 10 sentence 1 of the Telemedia Act (TMG). The UrhDaG establishes first and foremost that service providers must conclude licensing agreements with the authors (Section 5 UrhDaG) to ensure that the authors are remunerated even if the content was uploaded by users of the platform. The licensing agreements concluded by the service providers also extend to the use of the content by users of the platform (Section 6 UrhDaG). If a licence cannot be obtained from the author, the content must be blocked, and the service provider must ensure that the work will in future not be made available to the public (Sections 7 and 8 UrhDaG). Risks When Operating Repositories and Other Publication Platforms (e.g., University Presses) Repositories Under Section 3 no. 2 UrhDaG, repositories are explicitly excluded from the scope of the Act on the Copyright Liability of Online Content Sharing Service Providers. Therefore, regarding liability for infringing content, the only question is whether repositories are liable under the Telemedia Act (TMG). Liability under the Telemedia Act depends on whether the operator of a repository provides access to “content of third parties” or “own content” when making a document available for retrieval by the public via the Internet. For a repository is basically a website with special, selected content. Because of the liability privilege contained in Section 10 TMG, if the document was third-party content, the operators would not be responsible for the infringement of the rights of third parties. However, the problem here is that a document is not included in a repository without a previous process of editorial selection, and possibly preparation. Thus, as a rule, it must be at least assumed that the repository operator has adopted the document as “own content”, even if the work is attributed to the author. Hence, there is a risk that in the case of an infringement of copyright or of the exclusive rights of use of a third party (e.g., a publisher), the operator of a repository will be pursued to remove the document from the repository, cease and desist from (re-)including it in the repository, and pay compensation. The liability of repository operators for removal and cease and desist is unavoidable. However, by appropriately designing agreements with authors who offer them their documents for inclusion in the repository, repository operators can reduce the risk of financial losses due to the obligation to pay damages. In an expert report, Professor Dr. Andreas Wiebe LL.M. (Virginia) suggested the inclusion of the following wording in such agreements: The author undertakes to indemnify the repository operator for claims of third parties arising from the fact that, as a result of culpably false information provided by the author regarding the non-existence of the rights of third parties, or as a result of other circumstances for which the author is responsible, an infringement of copyright or exclusive rights of use occurs when the work is published in the repository. This shall not apply if the infringement is due to intentional or grossly negligent conduct on the part of the repository operator, and the author is not culpable of wilful intent or gross negligence in the same manner. In the latter case, the apportionment of damages shall be carried out in particular by weighing up the respective shares of fault (Wiebe, 2011, p. 113; our translation). Alternatively, the following clause, which also covers the infringement of data protection and privacy and publicity rights of third parties and includes indemnity against liability, can be used: The Licensor confirms that the above-mentioned use of the Materials and metadata does not infringe any rights of third parties (e.g., copyrights, privacy or publicity rights , data protection). If the Materials were produced collaboratively, the Licensor confirms that the content of the Agreement is known to and has been approved by all collaborators. The Licensor shall indemnify [ the repository operator ] against claims that the use of the Materials in accordance with this Agreement constitutes an infringement of the rights of third parties, insofar as the Licensor is responsible for this. The Parties shall cooperate closely to prevent infringements of the rights of third parties. Operators of repositories must provide for a “notice and take down” procedure if rights of a third party have been infringed by information included in the repository. If repository operators are contacted by injured parties, they must block and if appropriate delete the infringing content. Digital Publication Services Provided by Research Organisations Research organisations provide publication services (e.g., for scholarly monographs, open access journals, or conference proceedings), possibly for a fee, via their own publication platforms (e.g., university presses). Regarding liability under the German Telemedia Act (TMG), the same principles apply as for repositories. However, in the case of fee-based services, the question arises as to whether the Act on the Copyright Liability of Online Content Sharing Service Providers (UrhDaG) might also apply. The UrhDaG is applicable in principle only if digital publication services are provided (digital conclusion of contract, digital retrieval of publications for users). If only print publication services are provided, the UrhDaG does not apply. However, even if research organisations provide digital publication services, the UrhDaG probably does not apply. For, on the one hand, authors usually publish their own works after concluding their own licensing agreement with a university press. Thus, “copyright-protected content uploaded by third parties” (Section 2 (1) no. 1 UrhDaG) is not made available to the public online. On the other hand, the revenue earned from publication fees generally serves only to cover costs, and no additional profit is earned (e.g., directly through usage fees or indirectly through sales of user data or through advertisements). Therefore, public non-profit services in particular do not fulfil the criterion for profit orientation in Section 2 (1) no. 3 UrhDaG. Nor do research organisations that provide digital publication services for a fee meet the criteria for “service provider” as defined in Section 2 UrhDaG. However, this should be assessed on a case-by-case basis, as publication services may differ greatly in nature. Risks When Making Documents Available on a Personal Website or on Social Networks For researchers who wish to make documents they have produced themselves available to the public via their own personal websites, the greatest risk is that by so doing they will violate agreements with third parties – for example a publisher. Where an author has already granted a third party exclusive rights to make the work available to the public (online provision), they may no longer make the work available to the public online – not even via their own personal website. The same applies when researchers upload content to social networks such as X (formerly Twitter), ResearchGate, or Academia.edu. However, there is no risk involved in sharing links to content published on other websites, provided the content is not embedded in the website and it is recognisable that the links are to external or third-party websites. Where third-party content is adopted as “own content”, the liability risks for operators of private websites are the same as those for operators of repositories. References Brehm, E. (2021). Zweitveröffentlichungsrecht für Wissenschaftler*innen. [Online talk in the open-access.network series Open Access Talk] . German National Library of Science and Technology (TIB). https://av.tib.eu/media/51789 Brehm, E. (2022, October 28). Guidelines zum Text und Data Mining für Forschungszwecke in Deutschland . German National Library of Science and Technology (TIB). https://oa.tib.eu/renate/handle/123456789/10352 Communication, Information, Media Centre (KIM). (2020, July). Handreichung Zitatrecht [Handbook on the Right of Citation]. KIM, University of Konstanz. https://www.kim.uni-konstanz.de/en/openscience/publishing-and-open-access/legal-questions-when-publishing/ Rücknagel, J., & Schmeja, S. (2020, September 30). Wo und wie offen publizieren? Eine Einführung in Open Access [Online seminar in the open-access.network series Open Access Talk ]. open-access.network. https://zenodo.org/doi/10.5281/zenodo.4059961 Wiebe, A. (2011). Gesetzliche Haftung der Repositorienbetreiber und Wirkung von Haftungsfreistellungen. In R. Kuhlen & M. Seadle (Eds.), Zur urheberrechtlichen Gestaltung von Repositorien . Humboldt Universität zu Berlin. https://doi.org/10.18452/23216 Content editor of this page: Elke Brehm, TIB – Leibniz Information Centre for Science and Technology and University Library (Last updated: January 2024)....
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Open Access Policy Frameworks
Intro Open Research Europe Graphic: Open Research Europe in Action. Source: Open Research Europe (2021). faster-h2020.eu The key takeaways from this article are 1 The main players in the policy area of open access in Europe and Germany, respectively, are the European Commission, the German Federal Ministry of Research, Technology and Space (BMFTR; until 2025 called the Federal Ministry of Education and Research, BMBF), and the governments of the federal states. 2 Through various policy measures, these players promote and expect open access to knowledge. 3 At the level of the German federal states, different trends in the areas of open access and open science are emerging. Practical tip The presentation “ Open Access unterstützen – Praxistipps für Landesregierungen ” lists measures with which the governments of the German federal states can practise and support open access. Object of Governance, Subject of Policy Discussion The topic of open access and the formulation and implementation of open access policies are the subject of policy discussions and negotiation processes. Who are the driving forces, and what are their positions? Open access policies are driven both from the top down – especially from the European level to the level of the national states and federal states – and from the bottom up, by committed scholars and scientists, scientific institutions, and open access initiatives. Important milestones in the debate on open access to information are (see also the History of the Open Access Movement ) are : the Declaration of the Budapest Open Access Initiative (2002) , the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities (2003) . Further milestones include: the Bethesda Statement on Open Access Publishing (2003) the Amsterdam Call for Action on Open Science (2016) , The Vienna Principles: A Vision for Scholarly Communication in the 21st Century (2016) , the Jussieu Call for Open Science and Bibliodiversity (2017) , Plan S (2018) the Action Plan for Diamond Open Access (2022) . Many national and supranational institutions, for example the European Union (EU), the German Federal Ministry of Research, Technology and Space (BMFTR; until May 2025 called the Federal Ministry of Education and Research, BMBF), federal state ministries, the German Research Foundation (Deutsche Forschungsgemeinschaft, DFG), and to some extent also universities and non-university research institutions, play a dual role in this regard. As political actors, they participate through various interventions and measures in negotiation processes on open access; at the same time, they are also research funders , and in that capacity, they directly set standards and framework conditions. In what follows, we provide an overview of the main state actors in the policy area of open access. In each case, we briefly explain how free access to scientific knowledge is enabled or promoted by policy regulations in the respective contexts. Kindling, M., Martin, L., Neufend, M., & Wenninger, A. (2022). Open Access Atlas Deutschland: Status Quo in Bund und Ländern (1.0). Zenodo. https://doi.org/10.5281/zenodo.6472672 Supranational Level At the supranational level, the European Commission (EC) and the European Research Council (ERC) provide important stimuli for the implementation of open access and open science. In 2021, UNESCO also adopted a Recommendation on Open Science . Governance of Open Access in Europe As early as 2012, the European Commission issued a Recommendation on access to and preservation of scientific information, in which it called on Member States to implement clear and binding open access policies. According to the recommendation, it should be mandatory to provide open access to publications resulting from publicly funded research, preferably immediately but no later than 6 months after the date of publication in the case of the natural sciences and 12 months in the case of the humanities and social sciences. Although European Commission recommendations are not binding, the majority of the 27 EU Member States (inter alia Belgium , Greece , Italy , Croatia , Latvia , Malta , Poland , Portugal , Slovakia , Slovenia , Spain , Czech Republic , Hungary ) and three non-member States ( Norway , Serbia, and Switzerland ) have by now adopted open access and open science strategies. In the area of research funding , the European Commission requires funding recipients to provide open access to research publications resulting from funded projects (see also Horizon Europe ). [MG1] Error 404 bei Slovenia. [PSM2] Danke – das hier scheint der richtige Link zu sein: https://www.openaire.eu/community/blogs/slovenia-open-science-in-the-recently-adopted-resolution-on-the-slovenian-scientific-research-and-innovation-strategy-2030 Open Access in Germany In contrast to many other European countries, Germany does not have a uniform national open access policy. In its coalition agreement for the legislative period 2021–2025 , the previous German Federal Government undertook to strengthen open access and open science and to establish open access as a common scientific standard. This was duly taken into account with the adoption in 2023 of Joint Guidelines of the Federal Government and the Länder for the implementation of open access in Germany (Federal Ministry of Education and Research, 2023 ). In the coalition agreement of the current federal government in 2025 , open access is not explicitly mentioned; however, access to scientific research is to be facilitated by a research data act. Federal Ministry of Education and Research At federal level in Germany, the amendment of the Copyright Act (UrhG) in 2013 created the legal framework for green open access by implementing an inalienable secondary publication right ( Pflüger, 2016 , p. 14). In 2016, the then German Federal Ministry of Education and Research (BMBF; renamed the Federal Ministry for Research, Technology and Space, BMFTR, in May 2025) published a strategy for open access in Germany , which was updated in 2018. The aim of the updated strategy is to further establish open access as the standard for scholarly publishing and to close the gap between the scientific community’s desire for more open access publications and current publishing practice ( Federal Ministry of Education and Research, 2018 , p. 7). According to the strategy, various ways of providing open access should be allowed in principle, and academic freedom should remain untouched. Furthermore, publications resulting from publicly funded research should be openly accessible, and established quality assurance procedures should be ensured. Whereas the transposition into concrete policies is the responsibility of the individual federal states, the BMBF, in its capacity as a funding agency, set guidelines: Research projects funded by the BMBF – or its successor, the BMFTR – are expected to publish their results and their research data in open access . Besides scientific and scholarly institutions and libraries, funding recipients also include private sector actors, such as publishers and other service providers, that are establishing themselves in the open access landscape. Open Access at Federal State Level Because of the sovereignty of the federal states in the area of education and higher education policy, the adoption and implementation of open access and open science policies in Germany takes place mainly at federal state level (Kindling et al., 2022). These federal state policies are thus central elements of the open access transformation in the Federal Republic of Germany (Kindling et al., 2021). Some states, for example Baden-Württemberg , Berlin , Brandenburg , Hamburg , and Schleswig-Holstein have state strategies, which in some cases define concrete objectives. These objectives include, for example, an open access quota for journal articles, as well as open access officers and open access policies at all institutions ( Berlin ); the monitoring of open access publication figures ( Thuringia ); the adoption of a clear position on open access by university managers ( Brandenburg ); and a uniform technical infrastructure ( Hamburg ). Some federal state governments support open access through other instruments of higher education governance. For example, support for open access is mentioned in the science plan ( Bremen ), in the higher education development plan ( Saxony ), or in the digital strategy ( Rhineland-Palatinate , Saxony-Anhalt , Hesse ) of the respective federal states. Other federal state governments support the scientific institutions in their states through targeted measures, for example openaccess.nrw in North Rhine-Westphalia; through an open access publication fund ( Thuringia , Lower Saxony ); through open access networking units ( Berlin , Brandenburg ); or by funding openness as a cross-sectional topic ( Bremen ). Although other federal states have not yet adopted an explicit science policy position, many institutions already have well-established open access service offerings (e.g. Saarland, Saxony, Saxony-Anhalt, Bavaria, Hesse, Mecklenburg-Western Pomerania, Rhineland-Palatinate) (Kindling et al., 2021).The Bundesländer-Atlas (Kindling et al., 2021), the oa.atlas federal state dossiers (2024), and the Open4DE Landscape-Report ( Bärwolf et al. 2023 ) also provide an overview of current and past open access and open science activities of the German federal states. Open Access in Austria and Switzerland Open Access in Austria In Austria, various open access initiatives emerged at a national level at an early stage (see the History of the Open Access Movement ). For example, in 2014, in cooperation with the Austrian Science Fund ( FWF ), the Austrian Academic Library Consortium ( KEMÖ) , as one of the first national library consortia worldwide to do so, concluded an open access agreement with a publisher (see Mayer 2022, p. 47). The FWF had already introduced its own open access policy in 2004, with a strong recommendation to publish works open access. In 2012, Open Access Network Austria (OANA; since 2022: OSA – Open Science Austria ) was founded as a joint national networking initiative on the part of the FWF and Universities Austria ( uniko ). OANA subsequently drew up a number of recommendations, inter alia for a national open access strategy (2016) and a national open science strategy (2020). Following the publication of the 2016 recommendations paper , many research institutions published open access policies. The 2020 recommendations served as a basis for the national Open Science Policy Austria , which was adopted in 2022. A secondary publication right was incorporated into law in 2015 (see also Legal Issues in Austria ). In 2019, the national funding initiative “Digital and Social Transformation in Higher Education” of the then Austrian Federal Ministry of Education, Science and Research enabled the launch of several digitalization projects with a focus on open access, for example AT2OA2 . In its Government Programme 2020–2024 , the Austrian Federal Government gave a clear commitment to open access and actively supported Plan S for the implementation of open access. The current Government Programme 2025–2029 does not focus explicitly on open access or open science. Open Access in Switzerland According to the strategic vision of the Swiss Higher Education Policy Coordination 2025–2028 (Gesamtschweizerische Hochschulpolitischen Koordination 2025–2028 ), 100% of scholarly publications from Swiss universities will be made available in open access. In particular, swissuniversities , the umbrella organisation of universities in Switzerland, plays the role of a superordinate actor for the promotion of open access. As a funding institution, swissuniversities supports various open access projects . The Swiss National Open Access Strategy published in 2017 was updated in 2024. In the updated strategy, swissuniversities and the Swiss National Science Foundation (SNSF) set the framework conditions for the country’s open access transformation. The Open Science Delegation coordinates cooperation between the stakeholders. Besides this national strategy, the Swiss Library Network for Education and Research ( SLiNER ) published National Open Access Policy Guidelines in 2019, which serve as recommendations for the institutional open access policies of Swiss universities. In 2023, 86% of universities in Switzerland had an open access policy (see swissuniversities, 2023). Eleven partner institutions are collaborating to create a national diamond open access consortium ( CoDOA ) to enable the long-term and sustainable funding of diamond open access journals. The groundwork for enshrining a secondary publication right in law is currently in progress. References Bärwolff, T., Benz, M., Dreyer, M., Neufend, M., Kindling, M., Kirchner, A., & Schmidt, B. (2023). Open4DE landscape report . Open-Access-Büro Berlin. https://doi.org/10.21428/986c5d43.bab38f02 Federal Ministry of Education and Research. (2023). Open access in Germany. Joint guidelines of the Federal Government and the Länder . https://www.bmftr.bund.de/SharedDocs/Publikationen/DE/FS/772970_Open_Access_in_Deutschland_en.pdf?__blob=publicationFile&v=4 Federal Ministry of Education and Research. (2018). Open Access in Deutschland. Die Strategie des Bundesministeriums für Bildung und Forschung [Open access in Germany. The strategy of the Federal Ministry of Education and Research]. https://www.bildung-forschung.digital/files/2018-08-Open_Access_neu_barrierefrei.pdf Kindling, M., Neufend, M., & Wenninger, A. (2021). Bundesländer-Atlas Open Access . Zenodo. https://doi.org/10.5281/zenodo.5761153 Kindling, M., Martin, L., Neufend, M., & Wenninger, A. (2022). Open Access Atlas Deutschland: Status Quo in Bund und Ländern (1.0). Zenodo. https://doi.org/10.5281/zenodo.6472672 Kindling, M., Martin, L., & Neufend, M. (2024). oa.atlas: Konzept . Open-Access-Büro Berlin. https://doi.org/10.21428/986c5d43.54fbd167 Mayer, K. (2022). Open Access im Wandel. Infrastrukturen, Monitoring und Governance als zentrale Elemente einer erfolgreichen Transformation. Baseline Report zur Open Access Transformation in der Wissenschaft . Centre for Social Innovation (ZSI), Vienna. https://doi.org/10.22163/fteval.2022.533 Pflüger, T. (2016). Open Access-Regulierung im internationalen Vergleich. In T. Dreier, V. Fischer, A. van Raay, & I. Spiecker [known as Döhmann] (Eds.), Informationen der öffentlichen Hand: Zugang und Nutzung (1st ed., Vol. 3, pp. 537–562). Nomos. https://kops.uni-konstanz.de/bitstream/handle/123456789/37572/Pflueger_0-395438.pdf?sequence=1&isAllowed=y swissuniversities. (2023). Open access strategy review. Background report . https://www.swissuniversities.ch/fileadmin/swissuniversities/Dokumente/Hochschulpolitik/Open_Access/OA_Strategie/OA_Strategy_Review_Background_Report.pdf UNESCO. (2021). UNESCO recommendation on open science . https://doi.org/10.5281/zenodo.5741832 Further Reading Fuhrer, C., & Schurte, R. (2018). Nationale Open Access-Strategie in der Schweiz: Herausforderungen für die Hochschulen und ihre Bibliotheken. In Zentralbibliothek Zürich, A. Keller, & S. Uhl (Eds.), Bibliotheken der Schweiz: Innovation durch Kooperation: Festschrift für Susanna Bliggenstorfer anlässlich ihres Rücktrittes als Direktorin der Zentralbibliothek Zürich (pp. 97–118). De Gruyter Saur. https://doi.org/10.1515/9783110553796-004 German Science and Humanities Council. (2022). Recommendations on the transformation of academic publishing: Towards open access . https://www.wissenschaftsrat.de/download/2022/9477-22_en.pdf?__blob=publicationFile&v=0 Taşkın, Z., Melinščak Zlodi, I., Laakso, M., Torny, D., Arasteh, S., Bargheer, M., Klaus, T., Schima, J., Agnoloni, T., Peruginelli, G., Davidson, A., Franczak, M., María Ángeles, C. B., de Pablo Llorente, V., Dobson, H., & Heyman, J. (2024). D5.2 National overviews on sustaining institutional publishing in Europe . Zenodo. https://doi.org/10.5281/zenodo.13683953 Verdicchio, D., Kissling-Näf, I. (2020). Digitale Transformation und Open Access von Forschungsresultaten in der Schweiz. In J. Schellinger, K. Tokarski, & I. Kissling-Näf (Eds.), Digitale Transformation und Unternehmensführung (pp. 11–27). Springer. https://doi.org/10.1007/978-3-658-26960-9_2...
