heiDOK – Legal Issues in Publishing
1. First Publication
It is the aim of the publication server heiDOK to make scientific publications of members and affiliates of Heidelberg University permanently available in the spirit of open access (see policy).
Scientific publications are usually protected by copyright (see § 2 German Copyright Act), so that the provision and use of the uploaded works by the University Library as the operator of the publication server (for example, storage, publication, cross-linking, long-term archiving), and by other users (for example, reproduction, distribution) can encroach upon the copyright of the authors or other copyright holders.
Before a work can be published on heiDOK, the copyright holders have to entitle the University Library in a license agreement with the respective rights of use (for example, the right to reproduce and make publicly available on the Internet, see §§ 15 ff. German Copyright Act) and have to assert at the same time that they have the appropriate rights.
The copyright holders grant the University Library not an exclusive, but a simple right of use (see § 31 German Copyright Act), i.e. they can reuse works published on heiDOK at any time and in any other way (for example, place on their own website, publish it in a journal or in a monograph).
It should be noted that in further contracts it is not possible for copyright holders to grant exclusive rights anymore, since the previous license agreements remain in effect (see § 33 of the Copyright Act). The license agreement is to be considered binding and has to be considered in further licenses.
2. Secondary Publication
When a work is to be published for the second time the legality of a publication on heiDOK has to be examined, because rights of use will have already been granted to a third party. In this case there are several possible scenarios which are presented in detail on the information platform open-access.net. Support for the necessary rights clearance is offered by the SHERPA / RoMEO list listings (not legally binding), which provide the current license conditions of many large scientific publishers in relation to OA publications. Individual publishing agreements made with the publisher have priority (exception: § 38 paragraph 4 Copyright Act).
An important legal regulation which permits secondary publication of certain publications (e.g., articles in journals, Festschriften) is contained in § 38 of the Copyright Act. Paragraphs 1 and 2 should be considered when an article has been published without an explicit granting of rights. Paragraph 1 relates to articles of periodical collections (e.g., magazines, yearbooks). The copyright holder is allowed to reproduce, disseminate and make them publicly available elsewhere one year after first publication, unless otherwise agreed with the publisher or editor. According to paragraph 2, this rule also applies to contributions appearing in a non-recurring or clearly defined collection (e.g. Festschrift), when the authors are not entitled to claim compensation for its release.
§ 38 paragraph 4 of the Copyright Act which came into force on 1.1.2014, concerns the secondary exploitation rights for scientific authors, according to which a contract cannot be exclusive. In compliance with the other requirements and limitations of this provision, the author of a scientific publication who granted a publishing company permanent and exclusive exploitation rights, may make the publication accessible to the public twelve months after the date of the primary publication. The kind of contributions which are affected by the secondary exploitation right, and under which conditions and limitations the secondary exploitation right may be exercised, is clearly explained by Thomas Hartmann in the FAQ -Check for the new secondary exploitation right concerning §38 paragraph 4 of the Copyright Act.
3. Rights of use for works published on heiDOK
If there is no Open Content License available, the use of a work published on heiDOK is only allowed within the framework of the copyright provisions (cf. § 53 German Copyright Act).
- Metzger, Axel: Die urheberrechtliche Gestaltung von Open Access Repositorien (legal opinion, 2011)
- Spindler, Gerald (Hrsg.): Rechtliche Rahmenbedingungen von Open Access-Publikationen (monograph, 2006)
- Kreutzer, Till: Open Content Lizenzen - Ein Leitfaden für die Praxis (2011)
If you have any questions regarding the necessary rights of use, please feel free to contact us:
Ulrike Fälsch LL.M.
Tel.: +49 (0)6221-54-2579