Legal issues concerning Open Access publication

Many authors refrain from secondary publication of their work on the Internet because they are unsure whether they are legally allowed to do so. But there is a number of ways to legally publish articles a second time. Read up on the possibilities here:

↓ Austrian copyright law
↓ Self-archiving policies from the publishers' perspective
↓ Creative Commons licences


Austrian copyright law

Copyright law protects works and similar efforts. Individual creations in the areas of literature, musical art, visual arts and cinema constitute works under copyright law (§1(1) UrhG). Protection under copyright law commences automatically on creation of a work.

You cannot lose your right to be recognised as author during your lifetime regardless of the way you are publishing! Moral rights and exploitation rights protect your intellectual and economic concerns and grant you various powers as the creator of a work:
 

  • Moral rights protect creators' intellectual concerns when it comes to their works. These include, among other things, the right to be recognised as author (§19 UrhG) and the right to decide if and how authorship has to be made explicit in connection with a work (§20 UrhG).
  • Exploitation rights protect creators' economic concerns, ensuring that their work can only by exploited by themselves or with their permission. Exploitation rights include, among others, the right of reproduction (§ 15 UrhG), the right of distribution (§ 16 UrhG), or the right of communication to the public (§ 18a UrhG). 


Exploitation rights

When it comes to publications the exploitation rights mentioned above cover, for instance, reproduction of your work (such as the production of printed or digital copies), distribution of physical items and digital versions on data storage media, respectively, or providing access to your publication on a webserver.

Creators of publications can exploit their works themselves or have others, e.g. publishers, exploit them. This necessitates complete or partial transfer of exploitation rights - usually via a Copyright Transfer Agreement - to the publisher. Unfortunately many publishers insist on exclusive exploitation rights to your work, which strips you as author from any and all exploitation rights.


Author's contracts

We recommend not signing any author's contracts granting publishers "exclusive" rights. Instead, try to negotiate fair conditions with your publisher. At the very least you should be able to retain simple usage rights, e.g. to make your publications publicly accessible on non-profit document servers such as u:scholar. A suitable modification could read: "The publisher agrees that the author retains the nonexclusive right to make a digital copy of the document available on a publicly accessible academic non-profit server after publication for an unlimited period of time." While the Austrian right to secondary exploitation (see below) grants you similar rights, they are only effective once all conditions stated are met.

Ideally the publisher would only demand simple usage rights to your work for publication. In this situation you yourself could decide how your work may be used in the future. In reality, however, this only happens with dedicated Open Access publishers under the condition that you publish your work under a (certain) Creative Commons licence (see below).


Right to secondary exploitation (§37a öUrhG)

As part of the 2015 amendment to Austrian copyright law a "Right to secondary exploitation for authors of scholarly publications" following previous German legislation on the subject was passed. It became law on October 1st, 2015. Its declared aim is to support secondary Open Access publication (Green OA) and to thereby raise the share of research papers in scholarly repositories. 

As of October 1st, 2015, according to §37a öUrhG the following applies:

"Zweitverwertungsrecht von Urhebern wissenschaftlicher Beiträge

Der Urheber eines wissenschaftlichen Beitrags, der von diesem als Angehörigem des wissenschaftlichen Personals einer mindestens zur Hälfte mit öffentlichen Mitteln finanzierten Forschungseinrichtung geschaffen wurde und in einer periodisch mindestens zweimal jährlich erscheinenden Sammlung erschienen ist, hat auch dann, wenn er dem Verleger oder Herausgeber ein Werknutzungsrecht eingeräumt hat, das Recht, den Beitrag nach Ablauf von zwölf Monaten seit der Erstveröffentlichung in der akzeptierten Manuskriptversion öffentlich zugänglich zu machen, soweit dies keinem gewerblichen Zweck dient. Die Quelle der Erstveröffentlichung ist anzugeben. Eine zum Nachteil des Urhebers abweichende Vereinbarung ist unwirksam."
 


Publishers' self-archiving policies

Many publishers allow secondary publication as part of their self-archiving policies if mostly under certain terms, e.g. only after an embargo period and using the manuscript version.

You can find and overview for the various publisher and journal policies here: >> SHERPA/RoMEO

Bigger publishers usually have dedicated websites that contain information about (secondary) open access publication:

De Gruyter | Elsevier  | Elsevier Journal Embargo Finder | Nature | OUP | RSC | Springer | Taylor & Francis | Thieme | Wiley US | Wiley Author Compliance Tool
 


Creative Commons licences

Creative Commons (CC) is non-profit organisation offering standard licensing contracts for authors who want to grant the public usage rights to their works in a straightforward way. In scholarly communication CC licences are mostly being used to allow dissemination of publications as intended by Open Access. More and more publishers are adopting CC licences for their articles (that can usually be found on the first or the last page of any given article).


How do CC licences work?

CC licences comprise up to four modules:

  • Attribution (BY): the author must be named.
  • Non-commercial (NC): the work must not be used for commercial purposes.
  • No derivatives (ND): the work must not be modified.
  • Share alike (SA): the work must be shared under the same licence after any modifications.

These result in six main licences that vary in degrees (see next section). All six licences include the attribution (BY) module that speficies authors must be named when their work is used. In addition to appropriate citation the licence used and a link to the legal code must be included.

To make CC licences comprehensible for laypersons Creative Commons provides easily understandable summaries ("deeds") in addition to the legal code. A third, machine-readable version in RDF is also available.
 

Which CC licences are there?

CC licences are made unambiguously identifiable using version numbers, with 4.0 being the current version. The following table shows the six available licence types for this version. Links lead to the licence summary ("deed") and to the entire legal code, respectively:

 CC BY 4.0
 Deed - Licence        
Attribution
 CC BY-SA 4.0
 Deed - Licence
Attribution ∙ Share alike
 CC BY-ND 4.0
 Deed - Licence
Attribution ∙ No derivatives
 CC BY-NC 4.0
 Deed - Licence
Attribution ∙ Non-commercial
 CC BY-NC-SA 4.0
 Deed - Licence
Attribution ∙ Non-commercial ∙ Share alike
 CC BY‑NC‑ND 4.0  
 Deed - Licence
Attribution ∙ Non-commercial ∙ No derivatives

Apart from the six main licences there is also CC0 ("CC Zero") that renders works public domain. Learn more ...

 
Which CC licence should I choose?

Of the six CC licences only CC BY and CC BY-SA fulfil the requirements of "open licences".

In recent years the CC BY (Attribution) licence type has become the de-facto standard for open access publishing. It conforms best to the Open Access definition put forward in the "Berlin Declaration", which states: "The author(s) and right holder(s) of such contributions grant(s) to all users a free, irrevocable, worldwide, right of access to, and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute derivative works, in any digital medium for any responsible purpose, subject to proper attribution of authorship."

∙ Share alike (SA): Licences including this module prevent free choice of licence for derivatives of your work. This limits the use of your work. Unless you can think of a concrete case you want to avoid you can dispense with this module.

∙ No derivatives (ND): Licences including this module prevent, for instance, translation of your work or it being made the basis of further research or use apart from mere citation. Sections or chapters cannot be included in teaching materials. You should be asking yourself: What kind of re-use do I want to prevent and can this be achieved using the ND constraint? Licences including the ND module do not conform to the "Berlin Declaration" that explicitly stipulates modification of publications alongside their dissemination.

∙ Non-commercial (NC): Also in the case of licences including this module you should be asking yourself: What kind of re-use do I want to prevent and can this be achieved using the NC constraint? Since there is no common understanding of what constitutes "Non-commercial" (see also an elaborate study commissioned by CC) licences including the NC module contribute to dissemination of your work under unclear conditions. Above all restrictive licences are only sensible if you are prepared to take action against infringement. Licences including the NC module are also incompatible with the "Berlin Declaration" that stipulates use and dissemination "for any responsible purpose".

Choose the right CC licence using the CC licence finder.
 


Disclaimer: This website serves information purposes only and in no way constitutes or replaces legal or other counsel.