Green Open Access or Self-Archiving Rights (Part 2)



Green Open Access or Self-Archiving Rights (Part 2)

According to German copyright law, a one-year embargo period hast to be observed for scholarly articles before secondary publication. After that, self-archiving of the manuscript is permissible in most cases.

German secondary publication law does not include books, chapters in books, or articles in once-only works, such as individual conference proceedings or commemorative publications (Festschrift). The law only covers academic articles in journals or anthologies that appear at least twice a year (“a collection which is published periodically”, according to Section 38 (1) Copyright act, transl. by Ute Reusch).

“Manuscript”, Photo: Eliza Evans, 2008 (CC BY-NC-ND)
Embargo deadlines for journal articles

For newspaper articles, re-publication by the author is permitted immediately following the original publication, provided that the author has not signed an agreement stating the contrary (Section 38 (3) Copyright act). However, for journal articles and articles in periodical collections, authors must adhere to a one-year embargo period during which they may not make a secondary publication without permission of the publisher, even if no contractual agreement has been made about this issue (Section 38 (1) Copyright act). At the end of twelve months, authors may then exercise their secondary publishing right – unless they have signed a contract stating otherwise. But what if they have done so?

Secondary publication (/self-archiving) without the publisher’s permission

Oftentimes, authors sign publishing contracts that transfer the exclusive rights of use for their articles to the publishing house for more than a year or even indefinitely. For specific groups of scholarly authors and their articles in journals and periodical anthologies, the legislator has put a stop to publishers’ monopolization efforts: although the publisher can stipulate such conditions in the contract, these are invalid (after the one-year embargo period has passed):

(4) The author of a scientific contribution which results from research activities at least half of which were financed by public funds and which was reprinted in a collection which is published periodically at least twice per year also has the right, if he has granted the publisher or editor an exclusive right of use, to make the contribution available to the public upon expiry of 12 months after first publication in the accepted manuscript version, unless this serves a commercial purpose. The source of the first publication must be cited. Any deviating agreement to the detriment of the author shall be ineffective.

(Section 38 (4) Copyright act, transl. by Ute Reusch)

However, it is still unclear whether this regulation, which came into force on 1/1/2014, also applies retroactively (de la Durantaye 2013; FAQ, Bruch 2015).

Secondary publication as a right to publish the manuscript version

One year after the first publication, authors may make their articles from journals or periodical collections available on the internet for download without asking the publisher, unless it is for commercial use. They may then publish the articles on their own website, in research repositories, databases of institutes, or elsewhere. However, authors may only use manuscript versions for this purpose, i.e. text versions that may include all revisions following the publisher’s peer review process (and thus may be identical in content to the first publication with the publisher), but not by the pdf file generated by the publisher with the latter’s layout and logo (FAQ, Bruch 2015). Visually, as well as with regard to page numbers, a manuscript version thus often differs from the publisher’s print version. Anyone who would like to use the publisher’s version and has no clear contractual permission to do so needs to obtain permission from the publisher. Alternatively, authors can also consult SHERPA/RoMEO  for general terms and conditions of the publishing house in question. In some cases, employers may also have negotiated specific rights and licenses with the publisher.

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 3.