German copyright law allows authors under certain circumstances to make a copy of a scholarly work available online (/self-archiving) after having published it with a publisher.

Many scholars are familiar with the experience: they just published a new article or they meet new colleagues at a conference when the question comes up where their work can be found. As such interest speaks to the importance of their work within your professional community that is definitely a good thing. However, if the article in question was printed in an expensive anthology or published in a journal that readers (or their institutions) need to subscribe to in order to get access to the latest issues (or have to pay for access to individual articles), even the best scholarly work may remain unread. Potential readers (and often enough collaborators) who live outside the reach of European funding infrastructures or do not work in an institution that has acquired special licenses for their employees, face an access problem or at least a costly procurement. Researchers on the African continent are disproportionally affected by this. Articles that are to read and download without paywall, in contrast, are read much more frequently since they are immediately available (open-access.net; all links in German).

What do you do if you have already published (in print) but still want your articles to be available open access? How can you share them with your colleagues and the wider public?

Copyright and usage rights on the Internet

As long as you have not signed any contract in which the rights of use are transferred to a publisher you may, of course, make all your own works available to the general public (this is just the idea of ​​Open Access, i.e. the open, digital access to scientific results, and of the Creative Commons). This is precisely what publishers would like to avoid, which is why they usually have their authors sign contracts, in which the authors transfer usage rights to the publisher. A quick look into your publishing contract may provide some guidance: the transfer of non-exclusive usage rights allows the publisher to publish and use your text but reserves you as author the right to provide the same text to as many other publishers, institutions or individual users as you wish. However, the transfer of exclusive usage rights to the publisher considerably restricts these possibilities (Tesch et al. 2018). In this case, authors may neither make their articles available to others for re-publication nor make them publicly available themselves without the publisher’s permission (for example, self-archiving their texts on the internet). Many publishing contracts do contain this clause.

Liability of authors for unauthorized publications of their articles

Anyone ignoring the ban and placing protected texts on the internet without the publisher’s permission can be sued by the publisher for damages – even if it is not always clear whether the publisher would actually make use of this option. In principle, such a liability risk exists for authors or other persons uploading the text as well as for the operators of the server to which the text is loaded (FAQ, Bruch 2015). In order to circumvent the prohibition on re-publishing and distributing, meanwhile veritable “shadow libraries” have been created on the internet whose servers are located in places that are difficult to access for litigation. Of course, this is not a legal way of dealing with the copyright problem. Legislators in some countries were therefore compelled to make amendments to the law that would create legally admissible solutions.

Reforms in German copyright law

As early as 2014, German legislature enacted an amendment to the law (Bruch and Pflüger 2014; on the history of the copyright amendment), which, under certain conditions, allows a secondary publication or self-archiving without the publisher’s permission. However, this change did not go far enough for critics, especially since it excluded employees of universities from the right to secondary publication. Since 1 March 2018, a new “copyright knowledge-society law” (UrhWissG) is in force in Germany, which makes changes in various parts of copyright law. However, paragraph 38, which is most relevant for secondary publications, remains unchanged in the amendment. Nor did the new law in 2018 abolish the unequal treatment of university staff, as critics had hoped for (Coalition for action, 28/02/2018). Thus, the secondary publication law, as enacted in 2014, is still valid.

The contents shown here are for information only. They do not constitute legal advice.

Continue to the article Green Open Access or Self-Archiving Rights – Part 2.