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ART-Dok – Publizieren

Legal Questions about Electronic Publishing

General legal questions

A comprehensive treatment of the topic can be found at:
Rechtliche Rahmenbedingungen von Open-Access-Publikationen, Gerald Spindler (Ed.), Göttingen: Univ.-Verl. Göttingen, 2006. E-Book (PDF, 266 S.)

Further information about copyright matters: Copyright in the information society (Link list of the UB Heidelberg)

Licence agreement with the Library of Heidelberg University for an electronic (first) publication

Documents that are published electronically via the Internet are subject in their entirety to the regulations laid down in the copyright legislation (UrhG). Before you can publish your document electronically via HeiDOK, you have to agree to pass the necessary copyright usage permission to the Library of Heidelberg University (see: Licence agreement). This concerns in particular the reproduction rights and the right to make the document publically available (see: §§ 16, 19 a UrhG).

Later usage of your document also comes under the regulations of the UrhG. Breach of copyright is covered by the provisions of §§ 97 ff. UrhG, which cover, under certain circumstances, suppression of publication and compensation.

Single reproductions, e.g. copies and print-outs, can only be made within the strict limits of § 53 UrhG, for private, scientific or other personal use. The production and distribution of further reproductions is only allowed with the express permission of the copyright holder. The licence agreement allows for the University library to be given the permission to supply users with complete copies of a work for their private use, whether printed (Print-on-demand), on CD-ROM or other data medium. The Library also has the right to transfer this service to a third party. The Library of Heidelberg University currently has an agreement with the not-for-profit, print-on-demand publisher ProPrint.

To allow for a wide-ranging and long-term distribution of your work, your permission also covers the following: the transfer of the usage rights mentioned above to others, e.g. the German National Library in Frankfurt/Main or institutional repositories of the relevant special collection libraries. To make your work available in the long-term you also transfer to the Library of Heidelberg University the right to make such technical changes to the document, whilst retaining the integrity of the content, as are necessary to ensure long-term archiving.

In addition, you also declare that you alone are entitled to transfer the copyright usage rights, and therefore the rights of third-parties (for example, a publisher if published in parallel) are not infringed.

Licence conditions concerning parallel publication that have to be clarified – Sherpa/RoMEO-Liste

Concerning the parallel publication of a work that has already been published in print; is it permitted to publish this work electronically at all?

Support when checking the legal licence conditions is offered by the SHERPA/RoMEO-Liste (without guarantee); this lists the licence conditions of numerous large scientific publishers relating to OA publication. Although most publishers have no objection to a parallel publication electronically, it is advisable to check in each case if there are any objections, in order to be sure of the legal situation.

What about articles that have already been published as part of a printed collection?

If no explicit publication contract between author and publisher exists, it is worth looking at the rules of interpretation of § 38 UrhG, which is applied when the parties involved have no other agreement concerning publication in a periodically published collection. According to these rules, the publisher acquires exclusive rights concerning the reproduction and distribution of the printed publication. These exclusive rights change one year after publication of the work into non-exclusive usage rights, meaning that the author can then allow third parties to reproduce the work.

As § 38 UrhG does not fully cover all aspects of making a document publically available in electronic format, without an explicit contractual agreement the publisher does not acquire usage rights for online distribution. The author is therefore free, in principle, to pass the rights for online distribution onto a third party, or to undertake it themselves. It must be noted however, that the author has a duty of abstention towards the publisher, which generally lasts as long as the publisher holds the exclusive rights for the reproduction and distribution of the print publication. Should § 38 UrhG be applied, then one year after publication of an article the publishers rights become non-exclusive, meaning that from this point onwards the author can distribute the text in printed format, and that they no longer have a duty of abstention regarding online publication and distribution. Advice (not legally binding) about the individual agreements of various publishers, relating to electronic parallel publishing or self archiving of articles, can be found at the SHERPA/RoMEO list.

Inclusion of the Open Access Principle in Contracts with Publishers

If you want to publish your work according to the principles of Open Access, then you should ensure that you protect your copyright relating to OA publications, when agreeing a contract with a publisher. Helpful tips for formulating a contract can be found here (Informationsplattform Open Access.net).

The information platform http://open-access.net/ also offers helpful support with legal questions.

Implications of the current copyright reform legislation ("zweiter Korb")

Information about the legal implications for electronic publishing arising from the current change in copyright legislation ("zweiter Korb"), can be found here.

Open Content Licences

To give legal protection to authors and users of Open Access publications, it is possible to use an Open Content Licence, which clearly regulates the usage of such a work. This meets the demands made by both the Berlin Declaration and the Budapest Open Access Initiative.

Well-known Open Content Licences that are already in use for scientific publishing are:

Further information about these licences can be found at the information platform Open Access.net.