Green Open Access or Self-Archiving Rights (Part 3)



Green Open Access or Self-Archiving Rights (Part 3)

According to German law, authors have the right to self-archive their academic articles on the internet one year after the print publication. However, this right applies only within Germany, and is, moreover, limited to non-university staff.

The German Copyright Act authorizes authors to make a secondary publication or self-archive their scientific articles on the internet twelve months after the publication at a publishing house (Section 38, Copyright act). Projects such as DeepGreen are developing tools to automatically make academic texts available in open access at the end of the embargo period.

“Manuscript”, Photo: Eliza Evans, 2008 (CC BY-NC-ND)

Publishers often also make the pdf versions of articles available online themselves (for example, due to publicly funded licenses, which make content available for institutions, consortia, or even nationwide). However, this does not mean that authors or other users have permission to make these downloaded pdf versions available on other webpages.

Payments for the digital publishing version

Some publishers also offer an individual payment option: authors then pay a certain sum for the privilege of having their article published online immediately after, or in parallel with, the printed publication, or for that they may self-archive their articles in the publisher’s version (there are different forms of open access arrangements; see also “Open Access: Green and Gold”). Here, of course, the question arises as to whether this financing model, in which authors to some extent “buy back” their rights, is fair to authors and to the public. In addition, inequalities may arise because financially strong institutions, in order to increase their institution’s citation index, might pay for their staff while smaller institutes or freelance scientists cannot afford this.

The German Copyright act aims at strengthening the rights of authors by allowing them to re-publish their articles after a year has passed, even without the consent of the publisher.

Where does the German Copyright act apply?

The German Copyright act applies only within Germany. Decisive here is the publisher’s seat and the place of publication of the journal or anthology (not the place of residence of authors) (FAQ, Bruch 2015). Even the EU-wide applicability of the law is controversial among lawyers, although there are EU-guidelines for harmonization within Europe and comparable initiatives exist for the introduction of secondary publication rights in other European countries, such as Austria and Switzerland (Tesch et al. 2018). In any case, outside Europe the German Copyright act loses its effectiveness. Authors who have published with international publishers, therefore, still need to inquire (for example, at SHERPA/RoMEO) what possibilities of secondary publication their respective publishers allow.

Who has the right to secondary publication?

Although the text of the law itself includes all authors “of a scientific contribution, which results from research activities at least half of which were financed by public funds” (Section 38 (4) Copyright act, transl. Ute Reusch), which includes employees of higher education institutions, the introductory statement to the amendment to the law specifies the group of authors thus:

This includes research carried out as part of public project funding or at an institutionally funded non-university research institution. The scope of the secondary publication law is limited to these areas, as the state’s interest in disseminating the research results is particularly high there. Unlike, for example, in purely academic research, it is customary for the state to set guidelines for state funding in terms of the goals and exploitation of research. This differentiation can be explained by the different weight of the state’s interest in the dissemination and exploitation of research results.

(German Bundestag, 08/05/2013, bill, p. 9)

Academics at publicly funded non-university institutions (which include, for example, the Max Planck Institutes and the Helmholtz Association) can therefore generally make use of the right to a secondary publication (FAQ, Bruch 2015). University staff, on the other hand, are excluded from this right unless they can prove at least 50% non-university public project funding for their individual project (including material, project incentives, and non-educational grants) (Bruch und Pflüger, 2014; FAQ, Bruch 2015). Free research based on self-financing or financing by private foundations is not taken into consideration for the right to secondary publication. Neither is there any mention of authors living and working outside of Germany and Europe, who publish with German publishers. It remains unclear whether financing by non-European states is included in the definition of “public money”.

Criticism of the existing Copyright act

Several of the regulations in the German Copyright act have evoked criticism. The German Federal Council noted in its 2013 resolution:

The Federal Council notes that the scope of application of the first sentence of Section 38 (4) Copyright act-new, at least in an interpretation that is conform with the constitution, must also extend to the entire academic staff employed at universities, and that the right to secondary publication of the beneficiary group shall not be narrowed down by contractual agreements. The Federal Council reiterates its view that a legal framework which corresponds to the European level of discussion would have provided for a general six-month embargo period, and would have seen the application of the norm also to collections that appear only once a year …

(Federal Council, 20/09/2013, Decision, p. 2)

However, for political reasons, the amendments required by the Federal Council have not been enshrined in the amendment to the law, which has been in effect since 1 March 2018 (see also Coalition for action, 28/02/2018). As a result, some critics even question the constitutionality of some of the rules contained therein.

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 4