In what follows, we compile information aimed at helping individual scientists or scientific institutions to identify which publications may be made openly accessible via the toll-free green road, that is, by depositing them in an open access repository (“secondary publication”). We will also be happy to advise and support you as best we can.
German copyright law (Act on Copyright and Related Rights; UrhG) provides a number of possibilities of secondary exploitation of their works by authors. It should be noted that notwithstanding possible recognition by courts in the EU member states, German copyright law applies with certainty only when the place of jurisdiction of the publisher who originally published the work to be reused is in Germany, or when German law applies.
In the case of out-of-print works or the insufficient exploitation of a publication by the publisher, section 41 of the German Copyright Act (§41 UrhG) provides that authors whose monographs have not been reprinted for two years and whose publishers indicate on inquiry that a new edition is not planned, may deposit, and thus publish, this monograph in a repository (“secondary publication”).
The various secondary publication options in the case of contributions to collections (i.e., contributions to edited volumes and journal articles)are regulated by section 38 of the German Copyright Act (§38 UrhG).
Contributions to Collections
Pursuant to section 38, subsections 1 and 2 of the German Copyright Act (§38, 1-2 UrhG), a non-exclusive exploitation right reverts to the author of a contribution to an edited volume one year after publication – unless otherwise agreed or unless a remuneration is paid. This non-exclusive exploitation right enables the author to disseminate the contribution once again elsewhere and to make it publicly accessible. Before the contribution can be made available to the public via a repository (“secondary publication”), it must therefore be ensured that the subsequent making available of the work is not explicitly precluded under the terms of a publishing agreement. In the case of publications of this kind, there is often no publishing agreement that might preclude this. Moreover, no remuneration may have been agreed for the contribution, and all co-authors must agree to the work being made available in open access.
Under section 38 (4) the German Copyright Act (§38, 4 UrhG) – which came into effect in January 2014 and is also known as the right of secondary publication (ZVR)– the author of an article published in or after 2014 in a periodical that appears at least twice yearly has the right to make the postprint (i.e., the accepted manuscript version) of the contribution available to the public one year after first publication, provided the research activity from which the article results was publicly funded to the extent of at least 50%. As stated in the explanatory memorandum to the legislative amendment (our translation), “[t]his covers research activities carried out within the framework of publicly funded projects or at an institutionally funded non-university research institution. The scope of the right of secondary publication is limited to these areas because here the State interest in the dissemination of research results is particularly great”. University research that is not funded by third parties is exempted. The postprint may be made available to the public and archived in a repository even if the publishing agreement contains a provision to the contrary.
Transitional Provisions for New Types of Use
For a very limited period, which has since ended, section 137l of the German Copyright Act (§137l UrhG) regulated the online rights of use in works that were published at a time when online use was still unknown and online rights of use could not therefore be included in the publishing agreement. In the case of publications in respect of which the publishing agreement was concluded between 01.01.1966 and 31.12.1994, authors were given until 31.12.2007 – subsequently extended until 31.03.2008 – to secure the right to exploit their works online by actively using this right and by granting the corresponding rights of use to repositories, etc., or by objecting to the automatic grant of these rights to the publishers. In the case of publications for which the author did not secure the online exploitation rights in the aforementioned way, the online rights of use have been held by the publishers since the end of the transitional period. The retrospective grant of rights of use to third parties is permissible only with the consent of the publisher. However, if the author objected in time to the automatic grant of online rights of use to the publisher, the contributions may be archived in a repository.
Open Access Clauses in Alliance Licences and National Licences
For scientific institutions whose libraries participate in the Alliance licences and national licences negotiated and funded by the German Research Foundation (DFG), further possibilities of making the works of their members available in open access may arise. If an institution participates in these licences, the journal publisher permits in individual cases the provision of open access to contributions published by staff members of that institution in journals subscribed to within the framework of these licences. Here, not only the licensing periods are of relevance but also whether the postprint (accepted manuscript version) or the publisher’s version may be made accessible and whether an embargo period is mandatory. As a rule, the fact that a work is made available on the basis of an Alliance licence or a national licence is identified by default in the metadata. Instructions for identifying these publications are provided in a guide for repository managers, librarians, and authors (Handreichung für Repository-Manager, Bibliothekare und Autoren) published in 2012 (available in German only).