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OASPA Webinar: Policy into Action. The UNESCO Recommendation on Open Science under the spotlight - actions for publishing

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OPEN SCIENCE AND THE ROLE OF RIGHTS MANAGEMENT

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Online-Workshop am 09. Februar 2022

Wir wollen mehr Open Access wagen! Wege, Modelle und Services für die Politikwissenschaft Der Online-Workshop "Wir wollen mehr Open Access wagen! Wege, Modelle und Services für die Politikwissenschaft" findet am 9. Februar 2022 von 10:00 bis 14:30 Uhr statt. Veranstaltet wird er im Rahmen des BMBF-geförderten Projekts open-access.network gemeinsam vom Open-Access-Büro Berlin und dem Fachinformationsdienst Politikwissenschaft - Pollux . Ob Aufsatz, Buchpublikation oder die Veröffentlichung einer Dissertation - die Möglichkeiten im Open Access zu publizieren sind so breit aufgestellt wie die Politikwissenschaft selbst. Der Workshop soll darüber informieren, welche Möglichkeiten es gibt, die eigenen Publikationen in den Open Access zu überführen bzw. diese barriere-, kostenfrei und rechtssicher online zur Verfügung zu stellen. Was bedeutet es, ob als Professor*in oder Nachwuchswissenschaftler*in, im Open Access zu publizieren? Welche Beispiele und Angebote bieten Orientierungspunkte? Welche Bedarfe, Vorbehalte und Wünsche der Unterstützung gibt es? Gemeinsam blicken wir auf die Wege des Publizierens, die Chancen, aber auch die Herausforderungen des Publikationsprozesses. In zwei thematischen Blöcken möchten wir eine Möglichkeit zum Austausch für Wissenschaftler*innen und wissenschaftlich Publizierende in der Politikwissenschaft bieten. Jun.-Prof. Arndt Leininger , Ph.D. (Politikwissenschaftliche Forschungsmethoden, TU Chemnitz) und Dr. Philipp Schulz (Institut für Interkulturelle und Internationale Studien der Universität Bremen) gewähren Einblicke in Ihre Erfahrungen mit dem Thema Open Access. Praktische Umsetzbarkeit und Unterstützungsangebote werden vorgestellt sowie die Gelegenheit zum Netzwerkaufbau geboten. Um Anmeldung über unten stehendes Anmeldeformular wird gebeten. Zielgruppe Der Workshop richtet sich an Wissenschaftler*innen und Publizierende der Politikwissenschaft. Vorerfahrungen im Bereich Open Access sind nicht erforderlich. Agenda 9:45-10:00 Ankommen 10:00-10:20 Begrüßung & Warm-Up 10:20-10:30 Einführende Impulse 10:30-11:10 Open Access - Erfahrungsberichte (Jun.-Prof. Arndt Leininger, Ph.D., TU Chemnitz & Dr. Philipp Schulz, Uni Bremen) 11:10-11:40 Peer-to-Peer-Austausch 11:40-12:00 Alles was Recht ist (Dipl.-Wirt.Jur. Thomas Hartmann, LL.M., FIZ Karlsruhe) 12:00-12:10 Bewegte Pause mit Noemi 12:10-13:00 Pause 13:00-13:45 Open-Access-Publizieren - Wo & Wie? (Dr. Agathe Gebert, SSOAR & Stefanie Hanneken, transcript Open Library PoWi & Dr. Kurt Salentin, IJCV) 13:45-14:15 Ask the expert - Publikationswege 14:15-14:30 Wrap-Up & Feedback Veranstaltungsort Die Veranstaltung wird online in Zoom (bereitgestellt durch die Universität Bremen) stattfinden. Die Zugangsdaten erhalten Sie kurz vor der Veranstaltung via Email. Mit Ihrer Anmeldung stimmen Sie den Nutzungsbestimmungen von Zoom zu. Anmeldung geschlossen. Beiträge Impulse open-access.network & Einführung in Open Access (Linda Martin, open-access.network) Fachinformationsdienst Politikwissenschaft - Pollux (Regina Pfeifenberger, Pollux) Alles was (Urheber-)Recht ist (Dipl.-Wirt.Jur. Thomas Hartmann, LL.M., FIZ Karlsruhe) Publizieren Publizieren mit SSOAR (Dr. Agathe Gebert, SSOAR) Publizieren in der transcript Open Library Politik (Stefanie Hanneken, transcript) International Journal of Conflict & Violence (Dr. Kurt Salentin, Universität Bielefeld) Organisation Fachinformationsdienst Politikwissenschaft - Pollux Projekt open-access.network Open-Access-Büro Berlin...

Online-Workshop: Wir wollen mehr Open Access wagen! Wege, Modelle und Services für die Politikwissenschaft

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Open Access Information Materials

Collection of the open-access.network project Presentations and reports from events of the open-access.network project, as well as all materials can also be found on our Zenodo community page. We make our materials available under an open licence, and we welcome their reuse. Videos from the project open-access.network Videos to introduce the topic Open Access in 60 seconds https://doi.org/10.5446/50832 10 reaons for Open Access (in German only) https://doi.org/10.5446/51995 Science communication and the publishing process https://doi.org/10.5446/59396 Why is Open Access so important? https://av.tib.eu/watchlist/14980 Open-Access-Myth Checking Watchlist of the individual clips: https://av.tib.eu/watchlist/14927 Full video: https://av.tib.eu/media/62326 ) What is the problem with the journal impact factor? https://av.tib.eu/media/67071 The advantages of an open access dissertation (in German only) https://av.tib.eu/media/68305 Videos about Open Access in practice Funding of Open Access articles (in German only) https://doi.org/10.5446/49536 Funding of Open Access monographs (in German only) https://doi.org/10.5446/49535 The 101 of Creative Commons licenses https://av.tib.eu/watchlist/14489 Alternative business models for open access publications https://doi.org/10.5446/60354 From now on Open Access - How journals can transform their business model https://av.tib.eu/watchlist/14704 Other oa.talk http://av.tib.eu/watchlist/14488 Guides, handouts and infographics (most in German only) Open-Access-Definition https://doi.org/10.5281/zenodo.12684571 Open-Access-Infografik: Open vs. Closed Access https://zenodo.org/records/10973225 In wenigen Schritten zur Zweitveröffentlichung. Ein Leitfaden für Mitarbeiter:innen in Publikationsservices https://zenodo.org/records/10489037 Checkliste zur Qualität von Open-Access-Zeitschriften https://doi.org/10.5281/zenodo.7571993 10 Gründe für Open Access https://doi.org/10.5281/zenodo.7575092 Open-Access-Finanzierung – Das sind Ihre Möglichkeiten für die Publikation von Artikeln https://zenodo.org/records/7564431 Open-Access-Literatur finden https://doi.org/10.5281/zenodo.7572602 Open Access unterstützen - Praxistipps für Hochschulbibliotheken https://doi.org/10.5281/zenodo.7572517 Open Access unterstützen - Praxistipps für Hochschulen https://doi.org/10.5281/zenodo.7572559 Open Access unterstützen - Praxistipps für Wissenschaftler*innen https://doi.org/10.5281/zenodo.7575037 Open Access unterstützen - Praxistipps für Landesregierungen https://doi.org/10.5281/zenodo.7572546 Open Access unterstützen - Praxistipps für Verlage und Journale https://doi.org/10.5281/zenodo.7572574 Veranstaltungskonzept. Eine Vorlage zur Organisation von Open-Access-Veranstaltungen https://zenodo.org/records/6078419 Handout „Beitritt zum Editorial Board einer Zeitschrift: Ja oder Nein? Kriterien zur Entscheidungsfindung“ https://doi.org/10.5281/zenodo.12805440 Publishing a Compilation Thesis Open Access – A Quick Guide for Ph.D. Candidates https://zenodo.org/records/13959523 Further materials and project results (in German only) Wahrnehmung und Bewertung von Angeboten und Fördermaßnahmen durch Open-Access-Professionals https://zenodo.org/records/7593728 Umsetzung von Open Access: Erhebung zu offenen Open-Access-Infrastrukturen https://zenodo.org/records/7558697 Umsetzung von Open Access: Erhebung zu Beteiligungsoptionen für Unternehmen an Open-Access-Finanzierung https://zenodo.org/records/7558684 Wahrnehmung von Open Access: Erhebung zu Anforderungen und Hindernissen in ausgewählten geistes- und sozialwissenschaftlichen Disziplinen. Geschichtswissenschaften und Soziale Arbeit https://zenodo.org/records/7540764 Wahrnehmung von Open Access: Erhebung zu Anforderungen und Hindernissen in ausgewählten Technik- und Naturwissenschaften. Maschinenbau und Chemie https://zenodo.org/records/7540662 Wahrnehmung von Open Access: Erhebung zu Anforderungen und Hindernissen in den Rechtswissenschaften https://zenodo.org/records/7535165 open.access-network Rätselpaket https://doi.org/10.5281/zenodo.12779107 Literature on open access A collection of all literature references that can be found on our information pages on open access is available in our Zotero Library ....

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 ....

Open Access Legal Issues in Austria

Intro Numerous legal issues must be considered when implementing open access strategies or operating open access repositories and open access journals . On these pages you will find information on the legal framework for open access in Austria. In practice, both authors and repository operators often face the question of what legal regulations must be observed when making documents available to the public in repositories. These regulations are based on copyright law, the law most frequently consulted when it comes to open access. By now, most publishers allow their authors to self-archive a version of their articles in an institutional repository or on their own personal websites. However, conditions and restrictions are often imposed. For example, authors are often obliged to observe an embargo period between the publication date and the date on which the work is made openly accessible online. The Open Policy Finder database (formerly SHERPA RoMEO) provides information on the self-archiving policies of individual publishers. Nowadays, many authors whose publishers do not yet permit self-archiving supplement their standard publishing agreements with contract addenda that enable them to make their works available in open access in parallel with publication. Such addenda can also be used to avoid embargo periods. To give authors and users of open access contributions legal certainty, these works should be distributed only under an open content licence . Repository operators must also pay particular attention to the liability risks involved in operating repositories. Furthermore, data protection aspects play a very important role, especially in the case of open access to data. Copyright Austrian Copyright Law In Austria, the Federal Law on Copyright in Works of Literature and Art and on Related Rights ( Austrian Copyright Act – UrhG ) applies. Copyright as a body of law (i.e. copyright in the objective sense) grants authors subjective rights in their intellectual property (i.e. copyright in the subjective sense). Copyright is inheritable, but it is not otherwise transferrable (Section 23 UrhG). However, authors may permit others to use their works in a particular manner or in any manner of exploitation to which they are entitled under Sections 14–18a UrhG (right of use in the work and authorisation of the use of the work). The Territoriality Principle and Lex Loci Protectionis The copyright law of a state applies only within its own territory. This means that it has effect only within the borders of the country in which it was enacted. Hence, for example, the provisions of Austrian copyright law apply only on Austrian territory and those of German copyright law are applicable only on German territory (territoriality principle). Because the protective reach of national copyrights is limited spatially to the territory of the state in question, there is no uniform, globally valid copyright. Rather, a whole bundle of territorially limited national copyrights is available to authors. Where there is a connection between a work and a specific foreign country (“foreign nexus”), the territoriality principle also has conflict-of-laws implications insofar as the law that is applicable is that of the country for whose territory protection is claimed. This is referred to as the lex loci protectionis principle. It follows from this principle that the accrual, substance, and expiry of (subjective) copyright are determined by the law of the country in which the respective use, exploitation, or infringement takes place. The question of the personal applicability of copyright – that is, who enjoys protection under the respective applicable provisions and for what – is a separate issue. It is also referred to as the domestic nexus. In Austria, Section 94 et seq. of the Austrian Copyright Act (UrhG) are relevant in this regard. Besides the primarily relevant citizenship principle (Section 94 UrhG), further possible points of reference include, in particular, the place of publication and the place of performance (Section 95 and Section 97 UrhG). Nationals of European Union (EU) and European Economic Area (EEA) countries can invoke the principle of non-discrimination (Article 18 of the Treaty on the Functioning of the European Union [TFEU] and Article 4 of the European Economic Area Agreement). Copyright protection against nationals of third countries exists according to state treaties or subject to reciprocity (Section 96 UrhG). A key role is played by international copyright treaties (e.g. the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention), which lay down the principle of “national treatment”. For example, a US researcher who is working at a Swiss university and in the course of their work there publishes an article with a German publisher that is uploaded without their consent to the website of an Austrian database operator can invoke the protection of Austrian copyright law. Harmonisation of copyright law at the European level is leading to increasing standardisation of national provisions, which in turn is leading to international alignment of protection levels. Nonetheless, non-negligible and sometimes major differences exist between the national legal systems, which must be considered in each individual case. The Berne Convention – an international treaty to which most states in the world are a party – has led to the harmonisation of many elements of copyright law. As a result, the principle of lex loci protectionis (the law of the place where protection is claimed) also leads to fewer upheavals. For example, a scholarly publication in Germany enjoys the same protection as in the United States or South Africa. Things get more complicated in the case of limitations on copyright (also referred to in Germany as Schranken des Urheberrechts ) – that is, types of use permitted by law. For example, if a German researcher in Austria downloads a U.S. publication from a U.S. database in order to conduct a natural language processing (NLP) analysis in Austria within the framework of their research, this is covered by Section 42h of the Austrian Copyright Act (Text and Data Mining). Even if the publisher’s terms of use explicitly forbid such an action, it remains permissible under local law. In the event of legal proceedings, the dispute would be judged according to Austrian law because the owners of the U.S. database would seek legal protection in Austria, and therefore – according to the lex loci protectionis principle – Austrian law would be applicable. What Does Copyright Protect? Copyright protects works and related rights (also known as “neighbouring rights”). Works within the meaning of the Austrian Copyright Act (Section 1 UrhG) are original intellectual creations in the fields of literature, music, art, and cinematography. According to Austrian case law, the individual character alone is decisive for determining the existence of an original intellectual creation. A creation is individually characteristic if it sets itself apart from the everyday or the commonplace. The result of a creative intellectual activity that derives the individuality that distinguishes it from other works from the personality of its creator is deemed to be a work. A specific degree of originality (“threshold of originality”) is not required. As a result, even simple and apparently trivial creations can enjoy copyright protection irrespective of their aesthetic, scientific, or other value, provided they can be assigned to a category of works in the domains of literature, music, art, or cinematography. Copyright protects a work in whole or in part. Adaptations of a work (Section 5 UrhG) and collections (Section 6 UrhG) also enjoy copyright protection. Furthermore, copyright protects only works created by humans. Although this point has recently become particularly relevant in connection with outputs generated by artificial intelligence (AI), it is also of relevance when assessing the protection of machine-generated research data. Even if the latter are the result of complex processes, and setting up the experiment or the machine may involve considerably more effort than, for example, writing a short text, the results (i.e. the data) are not protected unless the individual expression of the author comes through in them. The situation is similar in the case of AI-generated works (including texts produced with large language models [LLMs]). To obtain copyright protection, the work must reflect conscious decisions on the part of the creator. The boundaries are fluid and sometimes difficult to determine. As a rule of thumb, wherever a process is merely initiated by humans (e.g. by entering a prompt or starting a machine), the results do not enjoy protection. What Are Related Rights? Related rights (also known as neighbouring rights) protect performances or products that are not themselves works but are performed or produced in connection with works or are similar to them. This includes performances by performing artists (Section 66 et seq. of the Austrian Copyright Act [UrHG]), the protection of event organisers (Section 72 UrhG), the production of photographs and moving images (Sections 73–75 UrhG), the production of audio recordings (Section 76 UrhG), the protection of broadcasts (Section 76a UrhG), the first publication of works in which copyright has expired (Section 76b UrhG), the production of investment-intensive databases (Sections 76c–76e UrhG), and – since the amendment of the Austrian Copyright Act in 2021 – the production of press releases (Section 76f UrhG). Compared with copyright protection in the narrower sense, the prerequisites for and the scope of protection are less extensive in the case of related rights. Furthermore, the term of protection of related rights is shorter. What Rights Does Copyright Grant Copyright grants authors moral rights on the one hand and economic exploitation rights on the other. The moral rights of authors, which are non-transferrable, protect authors’ moral interests in their works, whereas the exploitation rights regulate their powers to economically exploit a work. Exploitation rights are so-called exclusive rights, that is, they entitle the author to exploit the work to the exclusion of all other persons. The most important exploitation right is the right of reproduction, which entitles the author to forbid any unauthorised reproduction of the work (e.g. any digital copy). Other important rights include the right of making works available to the public (which is, e.g., important when uploading protected content online) and the right of broadcasting. Term of Protection of Works Copyright protection accrues the moment a work is created. Further measures, for example registration or an official administrative act, are not required. Copyright ends 70 years after the death of the author or – in the case of several joint authors – 70 years after the death of the last surviving joint author (Section 60 of the Austrian Copyright Act [UrhG]). In contrast to industrial property rights (especially trademark, design, and patent rights), the term of protection of copyrights and related rights cannot be extended. A work whose term of protection has expired can be used freely. However, as explained in the following paragraph, caution is warranted when doing so. Several rightholders with rights of different terms of protection may have participated in a work. In the case of a piece of music, for example, the copyright of the composer or the lyricist may have expired long ago, but the related rights of the performing musicians and producers may still persist. In the case of texts that have been translated or otherwise adapted, besides the term of protection of the rights of the authors, the rights in the adaptation may have to be considered separately. In the case of photos, a distinction must be made between the rights of photographers and, if applicable, the rights in the photographed object. Only when all copyrights and related rights have expired, may the content be freely used in its entirety. And finally, it should be borne in mind that the term of protection may differ in other countries. When calculating the term of protection, the year of occurrence of the event that determined the commencement of the term of protection (e.g. the death of the author) should not be counted. In other words, the term of protection always begins on 1 January of the calendar year that follows the decisive point in time. Freely Usable Content Works in the public domain are not protected by copyright and may thus be used freely (Section 7 of the Austrian Copyright Act [UrhG]). They include laws, regulations, official decrees, public announcements, and court decisions, as well as other official literary works and works of a scientific or didactic nature produced exclusively or primarily for official use that consist of two- or three-dimensional figurative representations (e.g. maps or relief representations of mountain ranges), provided they are not classified as works of art. However, materials published by higher education institutions, for example examination tasks, sample solutions, scripts, etc., are not deemed to be works in the public domain. Furthermore, ideas, thoughts, concepts, methods, rules of play, etc. are not eligible for copyright protection. Only the tangible, outwardly perceptible form enjoys protection, not the still intangible intellectual content as such. For example, ideas or concepts for a specific course or research project, a didactic concept, or criteria for the successful completion of a course are not eligible for protection. Scientific findings and teachings, such as formulae, scientific or didactic methods, laws of nature, individual chords, a style, a verse form, geometric symbols, saga material, and inspirations from nature or history, are also freely usable. They are classified as intellectual property in the public domain. This category also includes the CVs of persons, historical events, current events, and news content. Therefore, copyright in a scholarly work does not protect the historical, economic, or societal data, facts and theories presented therein. Rather, protection accrues to the respective presentation, structure, selection, etc. – that is, to the concrete elaboration or preparation of a specific material. Authorship / Accrual of Copyright Protection The author of a work is the person who created it (Section 10 [1] of the Austrian Copyright Act [UrhG]). Thus, the “creator principle” is enshrined in law. It follows from this that the author can only ever be a human being (a “natural person”) and never an animal, a machine, or a legal person (e.g. a regional or local authority, a university, or an enterprise). However, a legal person may acquire exclusive rights of use in the works ( Werknutzungsrechte ) or authorisations to use the works ( Werknutzungsbewilligungen ; licences) of third parties and thus become the holder of derived rights of use. But the natural person who created the work always remains the author. This applies also to a ghostwriter who is commissioned by another to write on their behalf and who is the only one who can claim authorship. This right cannot be waived (Section 19 [2] UrhG). However, a person may validly waive the right to be named as the author of a work (Section 20 [1] UrhG). After the author’s death, the heirs, as universal successors in title, assume the legal position of copyright holder. From the creator principle, it further follows that statutory copyright protection accrues automatically the moment the work is created (“real act of creation”). In contrast to brands, designs, or patents, the acquisition of protection requires neither registration nor a sovereign act. The advantage of the “automatic” accrual of copyright protection is that a work is effectively protected immediately without additional financial expense and formal effort. Several Participants in the Creation of a Work Joint authorship Where several persons have jointly created a work, and the work constitutes an indivisible unit, copyright accrues jointly to all joint authors (Section 11 [1] of the Austrian Copyright Act [UrhG]). Each joint author is separately entitled to take legal action against violations of copyright. Alteration or exploitation of the work requires the consent of all joint authors. If a joint author refuses consent without sufficient reason, any other joint author may sue for the grant of consent (Section 11 [2] UrhG). The combination of works of different types – for example a work of music and a literary or cinematographic work – does not establish joint authorship (Section 11 [3] UrhG); nor does an adaptation, where a work is used as a basis for a new work, or an individual contribution to a collection (e.g. a legal commentary). However, the authors of a jointly authored essay are joint authors. Joint authorship can also arise because of the transfer of copyright to several heirs due to the death of the copyright holder (Section 23 [4] UrhG). Partial Authorship The divisible combination of independent works of different types (e.g. a film and film music) does not establish joint authorship but rather partial authorship. The authors of individual contributions in a collection may – independently of the editors and the authors of other contributions – decide freely on the exploitation of the content of their own contributions, unless otherwise contractually agreed. The same applies, for example, to the setting to music of a song text. Unless an agreement to the contrary has been entered into, the authors of song texts are entitled to commission a new score without the consent of the composers, and the composers are entitled to use new lyrics. Assistants Furthermore, assistants and persons who contribute ideas must be distinguished from joint authors. Because only a person who makes a creative contribution to a work can be deemed to be an author of the work, mere ideas or tips from the mentors of a thesis, for example, do not suffice to establish joint authorship. This applies even if the mentors suggested the topic of the thesis. Therefore, ideas, abstract suggestions, or the supervision of a work do not result in joint authorship. Assistants do not make an independent creative contribution to the creation of a work, either, and therefore do not acquire copyright. Hence, the purely routine activities – such as literature searches, the production of subject indexes and bibliographies, the elaboration of footnotes, and copy editing – that are typically performed by research assistants or student assistants do not lead to the accrual of (joint) copyright. However, it should be noted that, according to the Austrian Universities Act (UG), university members who have made an independent scientific or artistic contribution to a work must be named as co-authors (Section 106 [1] UG). Plagiarism is deemed to have been committed when text, content, or ideas are used and presented as one’s own. This encompasses in particular the appropriation and use of text passages, theories, hypotheses, findings, or data by directly quoting, paraphrasing, or translating them without appropriate identification and citation of the source and the authors (Section 51 [2] Number 31 UG). Rights Ownership in the Case of Contractual and Employment Relationships In practice, the granting of rights of use often means that authorship and rights ownership are separated. Especially in cases where persons are paid to create copyrighted works – in other words in contractual and employment relationships – it is customary that the authors themselves are not entitled, or are entitled only to a limited extent, to make decisions about the exploitation of their works, because the exploitation rights pass to the contracting entity or the employer. Except in the case of computer programs and database works (Section 40b and Section 40f [3] UrhG), the Austrian Copyright Act does not contain any explicit special provisions for the creation of works in a contractual or employment relationship. Contracting entities and employers therefore primarily need – and are well advised – to have the rights contractually granted to them. However, even in the absence of an explicit agreement about rights ownership, a tacit grant of rights is assumed in the case of works created in the course of official duties, to the extent that that is necessary to fulfil the purpose of the (work) contract. According to previous case law, the following already applied before the amendment of the Austrian Copyright Act in 2021: If a work is created on behalf of a third party, that party is – at least logically – granted the right to use the work for the purpose for which it was commissioned. If the contract is meaningful for the contracting entity only if that entity alone is entitled to use the work product, then the contract between the contracting entity and the performing contractor includes the granting of a right of use in the work. In cases of doubt, the scope of the rights granted was determined by the practical purpose of the envisaged use of the work. With the amendment of the Austrian Copyright Act in 2021, the principle that the purpose of the contract determines the rights granted ( Zweckübertragungsgrundsatz ) was also enshrined in law (Section 24c UrhG). However, it does not apply to works created in the context of an employment relationship. Particular consideration should be given to the employment relationship when interpreting (implied) contracts. Clauses granting rights of use can also be found in the usual (employment) contracts at universities and research institutions. If such an agreement with researchers is lacking, and if they produce a work, for example a PowerPoint presentation or an E-learning unit, it should be established whether it arose in performance of official duties or whether another obligation to produce the work can be derived from the underlying contractual relationship. In these cases – for example in the case of project staff employed to generate E-learning content – a tacit grant of rights can be assumed even in the absence of an explicit legal agreement, so that the rights are held by the university. It should be noted that because of the constitutionally guaranteed freedom of research and science (Article 17 Austrian Basic Law [StGG]), university members and university teachers have the right to freely dispose of the results of their own work and to decide themselves about the publication or exploitation of their works. The authors of the teaching and learning material are therefore the respective teachers. Where they have commissioned third parties to produce the material, these third parties are considered to be the authors of that material. In the absence of contractual agreements to the contrary, the exploitation rights in teaching and learning material are always held by the teachers because their duties primarily comprise teaching and the transfer of knowledge but not, however, the provision of material. Caution is therefore warranted when assuming tacit grants of rights. In the absence of corresponding provisions in the (employment) contract, separate licensing agreements should be concluded. Where university members and university teachers generally act outside the obligations of their (employment) contracts, they may freely dispose of such works and decide independently about their exploitation. In this case, too, contractual agreements are necessary in order to be able to exploit such work results. Where a higher education institution intends to make their students’ dissertations and theses available in its own repository, it must secure the necessary rights of use from the authors (see also Section 86 of the Austrian Universities Act [UG]). If exclusive rights of use are granted in a specific work, the authors are excluded from using and further exploiting the work themselves. In this case, the licensing of the content by the author under an open source/open access licence such as a Creative Commons licence is ineffective. Links for Further Reading Amini, S. & Forgó, N. (2019). Urheberrechtsfragen beim Einsatz von Multimedia an Hochschulen. Ein Leitfaden für die Praxis am Beispiel der Universität Wien. Available online: https://phaidra.univie.ac.at/o:28164 Making Documents Publicly Available in Repositories The most important source of information about the permissibility of self-archiving one’s own contribution in a repository after concluding an agreement with a publisher is the publishing agreement itself. Most publishing agreements are standard contracts that provide for the granting of relatively comprehensive rights to the publisher. It is therefore advisable to study the agreement closely and if necessary to talk to the publisher about individual clauses. In the absence of an explicit provision, rights are deemed to have been granted only to the extent that they are necessary for the purpose of the agreement. There are two provisions in the Austrian Copyright Act (UrhG) that may still be relevant after the agreement has been concluded. Section 36 of the UrhG aims to give authors the opportunity, under certain circumstances, to republish works that have appeared in a collection. The prerequisite for its application is therefore that the work (e.g. an essay or also non-written works such as videos or images) is part of a collection. The term “collection” should be understood in a broad sense; it includes anything that comprises several parts that are connected at least outwardly but not necessarily in terms of content. However, the collection must be published periodically, that is, at regular intervals. Typical examples include yearbooks, journals, and newspapers, but not works such as Festschriften, memorial volumes, or monographs If these prerequisites are met, the Austrian Copyright Act (UrhG) provides for specific time limits for the expiry of exclusive rights, after which the contributions may be further exploited. In the case of newspapers, the rights expire after publication of the contribution, otherwise after one year. Note, however, that the application of this provision may be precluded by the publishing agreement and is also precluded in practice. Hence, it is important to always check the publishing agreement carefully. The second provision is the so-called secondary publication right , which is regulated in Section 37a of the Austrian UrhG. Even if the author has already granted exclusive rights of use to a publisher, they can still seek to have the contribution republished after an embargo period of 12 months under the following conditions: The author must be a member of the academic staff of a research institution at least half of which is financed by public funds, and they must have created the contribution in this capacity. The contribution must have appeared in a collection that is published periodically at least twice a year. The version used for secondary publication may only be the author’s accepted manuscript version (i.e. not the publisher’s typeset and formatted version, also known as the version of record). The secondary publication may only be for non-commercial purposes. The source of the first publication must be cited. This right cannot be contractually precluded . The secondary publication right also facilitates the exploitation of works in the context of academic teaching. Although only the authors themselves may exercise this right in their own works, they are entitled to republish the work under an open content licence , for example, for the purpose of making it available to the public, and thus also to permit it to be used in digital or analogue mode in seminars in a legally watertight way. In addition, it should be noted that making a work available in open access in a repository constitutes making the work available to the public within the meaning of the Austrian Copyright Act, and licences for protected content of third parties in the publication (e.g. figures) may be necessary, as free uses of the work provided for in the Act, such as those in the area of research and teaching, then no longer apply. Further Links On secondary publication right A brief overview of further innovations resulting from the copyright amendment Uhr-Nov 2015 A guide to copyright and digital media (available only in German) Liability Liability for Copyright Infringements on the Internet In principle, the same liability rules apply on the internet as in the analogue world. Anyone who undertakes activities exclusively reserved for the author without the authorisation of the author or the corresponding rightholders breaks the law. Hence, anyone who includes, for example, copyright-protected images or texts of third parties in their publication and makes that publication freely accessible in a repository without the authorisation of the respective authors is liable to prosecution, as this constitutes making the work available to the public. Consequences in the event of infringement are usually a cease and desist and removal claim (i.e. an obligation to cease the action, refrain from it in the future, and remove all traces of it; Sections 81 and 82, respectively, of the Austrian Copyright Act [UrhG]) and the payment of an appropriate licence fee (Section 86 UrhG). According to Section 89a UrhG, large online platforms are also responsible for copyright infringements on the part of their users if they have not taken appropriate countermeasures. This provision, which derives from an EU regulation (and which has also become known under the heading “upload filter”), primarily targets large online platforms like YouTube, but it can also have an impact in other contexts. What is important, however, is that it does not apply to scholarly repositories and encyclopaedias. Liability Risks Involved in Operating Institutional Repositories The tasks of institutional repositories usually comprise storing and managing documents produced by researchers from the respective higher education institution or research organisation and making them available to the public. When a document is deposited in an institutional repository, it is not available online immediately but rather undergoes checks that vary in scope depending on the repository. These may range from checking details, through keyword tagging and cataloguing, to content checking (on quality assurance in general in electronic archives, see Andermann & Degwitz, 2004 , p. 53 et seq.). In the context of the storage of files in repositories, infringements of intellectual property rights (such as copyrights, trademark rights, and patent rights) and trade secrets law are conceivable. As mentioned above, Section 89a of the Austrian Copyright Act (UrhG) on the liability of large online platforms or copyright infringements on the part of their users does not apply to scholarly repositories. However, authors can also address their claims for damages against a repository within the framework of so-called intermediary liability (see Section 81 [1a] UrhG). Article 6 of the EU-wide Digital Services Act (DSA) provides for the so-called host-provider privilege. It states that a hosting service provider, for example an online repository, is not liable for the information stored in the infrastructure at a user’s request, provided it does not have actual knowledge of the circumstances giving rise to liability or, upon obtaining such knowledge, it acts immediately. This means in particular that repositories are not obliged to individually check their users’ content. Rather, they are obliged only to act immediately as soon as they obtain knowledge of the circumstances from which the illegal activity is apparent. Conversely, this means that wherever curatorial services are provided – that is, where data are prepared by repository staff in collaboration with researchers – this liability privilege does not apply, because content preparation occurs. In such constellations, it is important that appropriate contractual provisions be put in place. The above-mentioned intermediary liability (Section 81 [1a] UrhG) applies only to a limited extent where the host-provider privilege under Article 6 of the Digital Services Act applies – in the first step, the only possibility is to notify the repository of the infringement. Upon receipt of the notification, the repository must immediately investigate the allegations and, if necessary, remove the content. In addition, liability may also arise from a data protection perspective if personal data are stored in the repository and data protection regulations are not complied with. In this context, it is relevant whether the repository is acting as a controller (Article 4 [7] of the EU General Data Protection Regulation [GDPR]) or as a processor (Artikel 4 [8] GDPR). The controller is the natural or legal person that determines the purposes and means of the data processing, while the processor is merely the natural or legal person that carries out the actual processing on behalf of and bound by the instructions of the controller. Here too, a distinction is made depending on the extent to which the repository influences the preparation of the data or whether it merely makes unsupervised storage space available. Personal Homepage/Website Self-archiving in the sense of self-posting refers to the individual, non-standardised archiving of publications and making them available to the public on an author’s personal homepage on a faculty or institute website, or on their own personal website. Here too, infringements of intellectual property rights may occur (see the previous two tabs), and the principles remain the same. Furthermore, it should be noted that anyone who operates a website – that is, anyone who is responsible for its content design – is a media owner within the meaning of the Austrian Media Act (MedienG). This becomes particularly relevant when an author provides an opportunity for interactive discussion on their own personal website and invites users to submit comments, because, as the owner of the website, the author can then be made liable for infringements of rights that occur in the discussion forum Contractual Limitation of Liability A contractual indemnification and hold harmless agreement should be concluded with the persons who deposit content. In addition, to ensure that the host-provider privilege can be maintained in the event of legal proceedings, the repository should reserve the right to remove the content from the repository at its own discretion and after review if a rights infringement is suspected. Otherwise, a conflict could arise where researchers have a contractual right to store content in the repository, but the repository is required by a third party to cease and desist but cannot remove the content without being in breach of contract. In addition, researchers should be made aware that compliance with legal requirements is their responsibility and that the repository merely makes the infrastructure available. Furthermore, repositories should make use of the possibility to allow limited access to sensitive content, as this may also enable them to claim types of use permitted by law, for example digital use in teaching and learning. References Andermann, H., & Degwitz A. (2004). Neue Ansätze in der wissenschaftlichen Informationsversorgung. Bibliothek: Forschung und Praxis, 28(1), 35–59. https://doi.org/10.1515/BFUP.2004.35 Open Access Basics - How to publish and What to Consider? Find an introduction here. Open Access Helpdesk Please feel free to contact us with any open access-related questions. Ursprüngliche Bearbeitung der Kapitel Repositorien und Haftungsrecht: Dipl.-Jur. Seyavash Amini. Bearbeitung des Kapitels Urheberrecht: Dr. Alexander Baratsits und Dr. Katharina Majchrzak. Aktualisierung und Ergänzung der Inhalte dieser Seite: Christoph Korab (Stand: August 2025). Bitte beachten Sie, dass die hier dargestellten Inhalte nur der Information dienen und keine rechtsverbindlichen Auskünfte sind....

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)....

Open Access Legal Issues in Switzerland

Intro Numerous legal questions arise in connection with open access policies and the operation of open access repositories and open access journals . On this page, you will find information on the legal frameworks in Switzerland that are of relevance in the context of open access . Please note that the content presen­ted here is intended for information purposes only and does not constitute legal advice. Copyright Legal Bases and Sources From a Swiss perspective, the relevant legal bases are the Swiss Copyright Act (CopA) and several international agreements, in particular the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and the Berne Convention for the Protection of Literary and Artistic Works as amended on September 28, 1979 . Object The object of protection of the Swiss Copyright Act (CopA) are works in the sense of "intellectual creations" ( Art. 2(1) CopA ), irrespective of their embodiment in a copy of the work. In the case of an article, for example, it is not the article in a particular graphical layout that is protected, but rather the article "in and of itself". Intellectual creations enjoy protection under the Swiss Copyright Act only to the extent that they have "individual character" ( Art. 2(1) CopA ). In the case of scientific works, which are specifically mentioned in the act ( Art. 2(2) points a and d CopA ), the individual character is to be found not so much in the content of the work – for the content is strongly determined by material logic – but rather in the concrete linguistic or stylistic presen­tation, in the wording and organisation of the material. As a rule, scholarly publications enjoy copyright protection provided they are not a mere compilation of data. The Swiss Copyright Act comprises a number of partial rights ( Arts 9–15 CopA ). They include, first, the exploitation rights, for example the right to produce and distribute copies of the protected work and to make it avail­able ( Art. 10 CopA ). Moreover, the author has the right to recognition of authorship; the right to decide whether, when, how and under what designation the work should be published for the first time ( Art. 9 CopA ); and the right to the integrity of the work ( Art. 11 CopA ). In addition, there are rights that refer to individual copies of works ( Arts 13–15 CopA ), for example the right of access to the original. The individual rights can in turn be further subdivided. In the case of open access uses, and the agreements concluded in this connection, it is necessary in each case to check exactly which partial rights under Swiss copyright law are affected. There are certain exceptions to copyright ( Art. 19 and seq. CopA ). Provi­ded the use of a work is covered by one of these exceptions, it may take place freely, that is, without the consent of the copyright holder. How­ever, the use of the work may be subject to remuneration (e.g. Art. 20 CopA ). Of interest for open access uses are, in particular, the exceptions with regard to private use ( Art. 19(1) point a CopA ), use in enterprises ( Art. 19(1) point c CopA ), and the making of archive copies ( Art. 24(1) and (1bis) CopA ). Source: Hilty, R. M. and Seemann, M. (2009). Open Access – Zugang zu wissenschaftlichen Publikationen im schweizerischen Recht (Expert opinion on open access commissioned by the University of Zurich). https://doi.org/10.5167/uzh-30945 Right of Quotation In accordance with the exception to copyright provided for in Article 25(1) of the Swiss Copyright Act, published works (text, images, audio, film, etc.) may be quoted by anyone if the quotation "serves as an explanation, a reference or an illustration" (so-called documentary function of the quotation). A quotation that serves only as a decorative illustration – for example a figure that has no substantive connection to the text – is not permissible. Moreover, the size of the quotation must be justified by its purpose. In other words, only as much of a work may be quoted as is needed. In individual cases, this may be an entire work, for example a poem, if that is necessary for an analysis of the text. Quoting means using – as a rule, an excerpt from – a protected work , word for word, note for note, etc. Conversely, this means that works that are not, or that are no longer, protected by copyright may be quoted without regard to Article 25 of the Swiss Copyright Act. So-called paraphrasing is not regulated by the exception with regard to freedom of quotation ( Art. 25 CopA ), either. Paraphrasing means merely restating or summarising the meaning of a (protected) textual work in another form. In contrast to quoting, when paraphrasing a text, one restates the content in one’s own words. Quotations must be designated as such, and the source must be given ( Art. 25(2) CopA ). Moreover, provided the author can be determined from the reference, they must be named. A person who does not identify a quotation as such is guilty of plagiarism because they claim to be the author of the text, the image, etc. Authors whose rights are infringed in this way can defend themselves on the basis of Article 68 of the Swiss Copyright Act. Source: Kompetenzzentrum für digitales Recht (n.d.). Grundlagen des Urheberrechts: 5.5 Das Zitatrecht. https://ccdigitallaw.ch/index.php/german/chapters/5/55-das-zitatrecht Making Documents Available in Repositories A question that authors and repository operators alike often ask themselves in practice is: Are we allowed to make this document available to the public in repositories ? Although many publishers allow self-archiving in principle, policies in this regard vary from publisher to publisher. The Open Policy Finder database provides details of publishers’ and journals’ open access archiving policies. Although it is unlikely that a publisher that does not allow a preprint or post-print of a work to be made available online will take legal steps to force its own authors to delete it, it is advisable to be legally on the safe side by checking on a case-by-case basis whether there are any legal impediments to self-archiving. In the following, we provide an overview of the legal aspects that must be considered. Self-Archiving of Articles That Have Already Been Published in a Journal When self-archiving articles that have already been published in a jour­nal, authors are often obliged by the publisher to observe an embargo period between the date of publication and the date on which the work is made available in open access. Other conditions that may be imposed by the publisher relate to the version of the work that may be self-archi­ved, and the inclusion of an addendum acknowledging the published source. For example, it is quite common for publishers to allow the au­thor’s accepted manuscript version (also known as the post-print) to be self-archived in parallel with the publication of the article by the publi­sher. The author’s accepted manuscript (AAM) is the final author ver­sion after peer review and acceptance for publication but before format­ting by the publisher. In contrast to the preprint – that is, the version sub­mitted to the publisher, which has not yet been peer reviewed – the post-print does not usually differ substantively from the publisher’s ver­sion (also known as the published journal article or the version of record). Some publishers now allow immediate self-archiving subject to certain terms and conditions. Authors whose publishing agreements include such passages should state them when depositing their articles in repositories. The passages in question are often specific addenda that are to be attached to the articles when they are being self-archived. Example : If you wish to post your version of this article within your institutional repository please include the following wording: Author Posting. (c) Publisher X, YYYY. This is the author's version of the work. It is posted here by permission of Publisher X for personal use, not for redistribution. The definitive version was published in Journal of XXX, VolumeXX Issue X, Month YYYY. https : / /doi.org/XX.XXXX/XXXXXXX ( Link to the DOI ). In Switzerland, if no agreement on copyright was concluded when the article was being published in a scholarly journal, the provisions of publi­shing contract law contained in the Swiss Code of Obligations (OR) apply. Article 382(3) of the Code of Obligations states: "Contributions to collections or anthologies and relatively lengthy magazine articles must not be published elsewhere by the originator within three months of the appearance in print of such contribution or article." Therefore, the authors of scholarly contributions, for example journal articles, may self-archive them in a repository or on another server three months after publication, provided the works deal with a topic in depth. In any case, the author’s accepted manuscript version (post-print) may be used for this purpose. According to the expert opinion by Reto Hilty and Matthias Seemann , the published version (publisher’s PDF, version of record) may also be used, albeit without the publisher’s logo, which is protected by trademark law. However, there is no established judicial practice on the question of format. It should be noted that in international constellations, for example in the case of a document server outside Switzerland, a foreign legal system may apply. Self-Archiving of Contributions That Have Already Been Published in Collections or Anthologies If an agreement on copyright, for example in a written publishing agree­ment, is concluded when publishing a contribution in a collection or an anthology (e.g. in a festschrift), the terms and conditions of that agreement apply. Otherwise, the same holds as for the self-archiving of journal articles: The provisions of publishing contract law contained in the Swiss Code of Obligations (OR) apply. Article 382(3) of the Code of Obligations states: "Contributions to collections or anthologies and relatively lengthy maga­zine articles must not be published elsewhere by the originator within three months of the appearance in print of such contribution or article." Therefore, authors may self-archive scholarly contributions, for example book chapters, in a repository or on another server three months after publication, provided the works deal with a topic in depth. In any case, the author’s accepted manuscript version (post-print) may be used. According to the expert opinion by Reto Hilty and Matthias Seemann , the published version (publisher’s PDF, version of record) may also be used, albeit without the publisher’s logo, which is protected by trademark law. However, there is no established judicial practice on the question of format. It should be noted that in international constellations, for example in the case of a document server outside Switzerland, a foreign legal system may apply. Many publishers now allow the self-archiving of such contributions even if the authors were paid a fee. It may therefore be worthwhile to enquire with the publisher. Self-Archiving of Articles That Have Already Been Published in a Newspaper If an agreement on copyright, for example in a written publishing agree­ment, is concluded when publishing an article in a newspaper, the terms and conditions of that agreement apply. Otherwise, in Switzerland, the provisions of publishing contract law contained in the Swiss Code of Obligations (OR) apply. Article 382(2) of the Code of Obligations states: "Newspaper articles or relatively short passages of magazine copy may be published elsewhere by the origina­tor at any time." This means that topical reports, for example newspaper articles, may be made available to the public in a repository or on another server at any time. In any case, the author’s accepted manuscript version (post-script) may be used. According to the expert opinion by Reto Hilty and Matthias Seemann , the published version (publisher’s PDF, version of record) may also be used, albeit without the publisher's logo, which is protected by trademark law. However, there is no estab­lished judicial practice on the question of format. It should be noted that in international constellations, for example in the case of a document server outside Switzerland, a foreign legal system may apply. Self-Archiving of Published Monographs If an agreement on copyright, for example in a written publishing agree­ment, is concluded when publishing a monograph, the terms and condi­tions of that agreement apply. Otherwise, in Switzerland, the provisions of publishing contract law contained in the Swiss Code of Obligations (OR) apply. Article 382(1) of the Code of Obligations states: "As long as the editions of the work to which the publisher is entitled have not yet been exhausted, the origina­tor may not make other arrangements regarding the work or parts there­of to the publisher’s detriment." Therefore, authors may not make works such as monographs or textbooks available in open access in a reposito­ry in competition with the publisher as long as the edition is still in print. The self-archiving of versions that cannot be properly cited, and are there­fore no real competition, is permitted. Such versions include, for example, files without original page numbers in disciplines where citations include exact page numbers. It should be noted that in international constellations, for example in the case of a document server outside Switzerland, a foreign legal system may apply. In the case of older monographs, it is worthwhile to enquire with the publishers, as it is possible that publication of the book has been discontinued or that the publishers have no objection to the monograph being deposited in a repository. Dissertations Most Swiss universities facilitate the digital publishing of dissertations. As a rule, responsibility for digital publishing lies with the university libraries, where you will obtain the information you need. Authors are entitled to publish their dissertations under the terms of an open licence . However, if parts of the dissertation have already been – or are to be – published elsewhere, the terms and conditions of the corresponding publishing agreements or the dispositive statutory provisions must be complied with, and the submission instructions of the respective journals or publishers must be observed. It may therefore be appropriate to make only individual parts of the dissertation available in a repository and to withhold access to other parts. Moreover, the doctoral regulations of the respective universities or faculties apply. International Constellations Within the limits laid down by the Swiss Federal Act on International Private Law (PILA) and the Lugano Convention , authors and publishers may reach an agreement on jurisdiction and applicable law. In the absence of such an agreement, it must first be clarified whether Swiss jurisdiction applies, which is the case, for example, if the author against whom an action has been brought, is domiciled in Switzerland. The competent court in Switzerland then determines the applicable law in accordance with the Swiss Federal Act on International Private Law (PILA). A distinction should be made here between matters of contract law (that concern a publishing agreement) and specifically copyright matters (that concern copyright). In matters of contract law, the legal system of the state where the publisher has its establishment applies ( Art. 117(2) PILA ). In copyright matters, the principle of the law of the country where protection is sought applies ( Art. 110(1) PILA ). If, for example, the removal of a certain publication from a repository in Switzerland is requested, Swiss law applies; in the case of a repository in Germany, German law applies. Liability Law Liability for Copyright Infringements on the Internet The Internet-based channels of scholarly communication also give rise to the question of who is liable in the event of an infringement for the infor­mation that has been made available to the public. It is important to de­termine the consequences under liability law that may arise for the ope­rators of repositories, or for authors who make their documents avail­able online. In this way, the liability risks can be assessed in advance and limited by means of appropriate practices or contractual arrangements. Liability Risks when Operating Institutional Repositories The tasks of institutional repositories generally comprise depositing, managing and making available to the public documents produced by scholars and scientists of the respective universities or research organi­sations. When a document is registered in an institutional repository, it is not available online immediately. Rather, it undergoes quality assurance procedures, the extent of which vary from repository to repository. They may range from checking the metadata, through indexing and catalo­guing, to substantive checks (on quality assurance in electronic archives in general, see the DINI Certificate for Open Access Publication Services 2019 and CoreTrustSeal ) Legal Consequences for Repository Operators If repository operators make scholarly works accessible without holding the necessary copyrights, they are guilty of an infringement of copyright. In this case, in Switzerland, legal remedies are available to the entitled party under Article 61 and seq. of the Federal Copyright Act (CopA). In particular, the entitled party may bring an action against the repository operator requesting that the infringement of copyright be remedied ( Art. 62(1) point b CopA). Thus, the repository operator may be obliged to remove the works in question from the repository. Also possible are financial consequences because of actions brought un­der the Swiss Code of Obligations; these actions remain reserved under Article 62(2) CopA . The main issue here are claims for damages with which, for example, the publisher wants to be compensated by the repo­sitory for the loss of profits resulting from the copyright infringement ( Art. 62(2) CopA in conjunction with Art. 41 and seq. CopA ). However, the entitled party must be able to prove this loss, which is likely to be difficult in practice because the establishment of a causal relationship between the action of the repository operator and losses on the part of the publisher will hardly be possible. The holder of the infringed partial right ( Art. 62 (1) CopA ) or of an exclu­sive copyright licence ( Art. 62 (3) CopA ) is entitled to institute procee­dings. In the case of the making available of a work in a repository, the rights in question are the online rights, which are usually held by the author or the publisher. Thus, it is usually the author or the publisher that is entitled to institute proceedings Under Swiss law, the defendants may not only be the operator of the repository but also other persons who participated in the copyright infringement. In other words, not only may the principal infringer be sued but also instigators or accomplices (see Art. 50(1) of the Code of Obligations ). If the online rights in a work are held, for example, by the publisher, and if the author nevertheless made the work available to the public in a repository, both the author and the repository operator may be sued. In the case of a claim for damages, the repository operator and the author would then be jointly and severally liable ( Art. 50(1) of the Code of Obligations). The claimant may choose the party against whom they wish to bring an action and may decide whether they wish to request partial or full performance of the obligation from that party ( Art. 144(1) of the Code of Obligations ). Shifting the Legal Consequences to the Author Repository operators may contractually pass on to the author the risk of being sued for monetary damages because of infringements of the rights of third parties. This is done by means of a contractual clause whereby the author undertakes to hold the repository harmless in the event of legal claims by third parties – that is, to bear the costs incurred or to pay possible compensation for damage. From a practical point of view, it should be borne in mind that shifting the risk to the author in this way may reduce the attractiveness of the reposi­tory, and that fewer authors may be willing to make their works available to the public in the repository as a result. For authors, it is probably not always clear from their publishing agreements with publishers whether they are entitled to self-archive the works in a repository in parallel with publication. Therefore, the way in which liability for infringements is distributed is a key point in the agreement between the author and the repository operators. Where no agreement on liability for infringements has been made bet­ween the repository operators and the author, the repository operators have recourse against the author only to the extent that the author is jointly responsible for the copyright infringement (and could therefore also be sued directly). Such joint responsibility is usually present if the document was deposited by the author themselves or with their consent. The respective shares that must be assumed by the repository operators and the authors are determined in the particular case by the court at its discretion ( Art. 50(2) of the Code of Obligations ). In this context, the repository operators are classified as content provi­ders, whose service goes beyond the mere technical storage and making available of documents that is performed by mere access providers. However, even a content provider is liable only to the extent that they failed to take possible and reasonable measures to prevent the infringe­ments of rights. Repository operators can be reasonably expected to cla­rify the entitlement to the individual works under copyright law, and, if they are informed of infringements, to endeavour to remedy them. However, it would not be reasonable to expect repository operators to furthermore take note of the content of each individual work. Liability Risks When Self-Archiving on a Website Self-archiving in the sense of self-posting refers to the individual, non-standardised archiving and making available to the public of publications, for example on the website of a university department or an institute, or on a private website. Possible infringements when self-posting include in particular the viola­tion of intellectual property rights, for example the copyrights or moral rights of third parties. When university members self-archive their works on their personal websites, the question of the responsibility of the university does not arise provided it does not operate the website and is not responsible for the content of the publication. Open Access Helpdesk Ask your specific questions about Open Access here. References Hilty, R. M. und Seemann, M. (2009). Open Access - Zugang zu wissenschaftlichen Publikationen im schweizerischen Recht (Rechtsgutachten zu Open Access, erstellt im Auftrag der Universität Zürich). https://doi.org/10.5167/uzh-30945 Kompetenzzentrum für digitales Recht (n.d.). Grundlagen des Urheberrechts: 5a.6 Das Zitatrecht. https://www.ccdigitallaw.ch/56-utilisation-doeuvres-orphelines/?lang=de Bundesversammlung der Schweizerischen Eidgenossenschaft (2020). Bundesgesetz über das Urheberrecht und verwandte Schutzrechte – Urheberrechtsgesetz (URG) . https://www.fedlex.admin.ch/eli/cc/1993/1798_1798_1798/de Bundesversammlung der Schweizerischen Eidgenossenschaft (2021). Bundesgesetz betreffend die Ergänzung des Schweizerischen Zivilgesetzbuches – Fünfter Teil: Obligationenrecht. https://www.fedlex.admin.ch/eli/cc/27/317_321_377/de Bundesversammlung der Schweizerischen Eidgenossenschaft (2021). Bundesgesetz über das Internationale Privatrecht (IPRG). https://www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/de Further Reading Kompetenzzentrum für digitales Recht (n.d.). Grundlagen des Urheberrechts. https://ccdigitallaw.ch/index.php/german Content editor of this page: André Hoffmann, Zurich University Library (Last updated: August 2021)....

Open Access Licences

Open Content Licences Depending on how one defines open access , the term may mean that a work is not only accessible free of charge but also that it may be reused extensively. To clearly indicate what rights apply when using the work, it can be made available under an open content licence, for example a Creative Commons licence . Open content licences are standardised licences that allow copyrighted works to be used free of charge. This increases not only the usage possibilities but in practice also the visibility of the works. However, authors may grant open licences only if they have not already granted a third party – for example a publisher – exclusive rights of use in the works. In science, Creative Commons (CC) licences are used frequently, while Digital Peer Publishing Licences (DPPL) and the GNU Initiative's Free Documentation Licence (GNU-FDL) are used less frequently. Whereas CC licences and the DPPL are internationally compatible, the GNU-FDL is tailored to the Anglo-American legal area. By making works available under an open content licence, they can be reused without having to ask the rights holder's permission. Information to this effect appears in the licence chosen, and a link to the licence text is provided when publishing the work. When reusing works licensed in this way, the author's right of attribution remains unaffected. If the licence allows the work to be adapted, the fact that the new work is an adaptation must be indicated, and reference must be made to the original work. When choosing a suitable licence for one’s own open access publication, care should be taken to ensure that a free right of access to the work and the right to reuse it in the aforementioned ways are guaranteed. Source: based on Lang, I. & Brettschneider, P. (2020). Freie Bildungsmaterialien - nutzen und selber erstellen. S. 33. Zenodo. https://doi.org/10.5281/zenodo.4068291 ( CC BY 4.0 International ) Creative-Commons-Lizenzen für Open Access Quelle: Brinken, H., Hauss, J. & Rücknagel, J. (2021). Creative-Commons-Lizenzen für Open Access, open-access.network. https://doi.org/10.5446/53409 ( CC BY 3.0 DE ) Common Licensing Models Creative Commons Licences Creative Commons (CC) is a non-profit organisation that offers standardised licences for copyrighted works free of charge. With these CC licences, the holders of the exploitation rights in a protected work can grant rights of use to users of the work. The rights holder and the author of a work are not identical if, for example, the author has transferred their exclusive exploitation rights to a publisher in a publishing agreement. Copyright protection of the work does not cease if a CC licence is applied to it. On the Creative Commons website, you will find details of the CC licences and a comprehensive list of FAQs . The CC 4.0 licence suite is the current international version of the CC licences. The texts of the previous versions were "ported" – that is, the original English-language licence text, which was based on U.S. law, was adapted in the course of translation into other languages to copyright law in the respective jurisdiction. To avoid jeopardising standardisation in the granting of rights, which is the objective of the CC licences, CC ceased "porting" as of version 4.0. The CC licence suite comprises six core licences. The CC Attribution licence (CC BY) grants users the most rights of use. This licence is compatible with every definition of open access, and its use is recommended by open-access.network. Regarding the requirements laid down in the Berlin Declaration – whereby in particular the making of derivative works and the use of works for any responsible purpose, and thus also for commercial purposes, should be permitted – the only CC licences that are "genuinely" open access licences are the CC BY and CC BY-SA licences. In particular the NC (NonCommercial) component involves some difficulties, as it is often controversial whether cases constitute commercial use. Classical examples are the reuse of works on commercial platforms, at private educational institutions, or by non-profit educational providers that charge fees for certain services in order to cover their costs, and that thus act commercially. Therefore, the use of the NC component is discouraged by many. Digital Peer Publishing Licences The Digital Peer Publishing Licences (DPPL) were created on the basis of German law with funding from the State of North Rhine-Westphalia. They regulate free access to publications through modules with different degrees of permissiveness. No distinction is made between scholarly and commercial use. Because the licensed work may be distributed only electronically, the rights to use it in printed form or on carrier media are not covered by the licence and remain with the authors. Moreover, in contrast to the CC licences, the DPPL apply only to textual works. The individual DPPL modules, and FAQs about them, can be found on the website of the North Rhine-Westphalian Library Service Center (hbz) . With regard to the requirements laid down in the Berlin Declaration, whereby users should be granted the right to freely access the licensed work and to make derivative works, the modular DPPL does not meet the definition of open access used. GNU Free Documentation Licence The GNU Free Documentation License (GNU FDL or GFDL) provided by the Free Software Foundation (FSF) is based on US copyright law. The cur­rent version is Version 1.3, which was released in 2008. The licence hails from the software scene, and its characteristic feature is the "copyleft" principle, whereby all derivative works must themselves be released under the same licence as the original works. The special feature of the GNU FDL 1.3 is that certain materials released under that licence may be relicensed and used under the terms of the CC BY-SA 3.0 licence. It is questionable, however, whether the GNU FDL can be considered legally watertight in Germany, as it includes an exclusion of liability (warranty disclaimer) for wilful intent, which is not permissible under German law. However, the disclaimer renders only the corresponding clause in the licence text invalid, not the licensing agreement as a whole. Moreover, with the exception of the possibility of excluding certain parts of the work from adaptation, the licence fulfils the requirements of the Berlin Declaration. STM Licences The sample STM Licences released by the Association of Scientific, Technical and Medical Publishers in 2014 are not open access licences within the meaning of the Berlin Declaration. The three full licences and two supplementary licences reserve certain commercial rights. It is not advised to use the supplementary licences as supplements to CC licen­ces, because the risk for the users is that the CC licences will thus be­come invalid, as they may be amended only by an individual agreement in writing. If a supplementary STM licence is used as a supplement to a CC licence, it must also be made clear that the licence is no longer a CC licence. In particular, the CC icons should no longer be used. However, this would be contrary to the uncomplicated use of standard licences. Research Data Research data can also be published open access, and their reuse can be regulated via licences. Open licences maximise the sharing of research data and thus their dissemination and visibility. The most frequently used licences are: Creative Commons (CC) GNU General Public Licence (GPL) / designed for software Open Data Commons (ODC) / designed for data collections As from Version 4.0, the CC licences are also suitable for research data. In the case of earlier versions, the protective effect is questionable. The licence chosen should be the one whose terms are suitable for the field, discipline, and data type in question. However, to comply with the FAIR Principles, the use of a CC BY licence is recommended. Wie genau funktionieren Creative-Commons-Lizenzen? Quelle: Brinken, H., Hauss, J. & Rücknagel, J. (2021). Wie genau funktionieren Creative-Commons-Lizenzen? open-access.network. https://doi.org/10.5446/52952 ( CC BY 3.0 DE ) Die korrekte Angabe der Lizenz Quelle: Brinken, H., Hauss, J. & Rücknagel, J. (2021). Die korrekte Angabe einer Lizenz: Was muss ich bei der Nachnutzung beachten?, open-access.network. https://doi.org/10.5446/53415 ( CC BY 3.0 DE ) Die Non-Commercial-Lizenz in der Wissenschaft Quelle: Brinken, H., Hauss, J. & Rücknagel, J. (2021). Die Non-Commercial-Lizenz in der Wissenschaft, open-access.network. https://doi.org/10.5446/53430 ( CC BY 3.0 DE ) Open Access und Research Data Find an introduction here. Practical Tip Forschungsdaten.info provides detailed information about Creative Commons licences for research data and about publishing research data....