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General Information on Copyright
German copyright law grants authors the right to exploit their own works, which includes the rights to reproduce them, disseminate them, and make them available to the public. Which exploitation rights remain with the authors after signing a publishing agreement (often called “Copyright Transfer Agreement”) depends on the wording of the particular agreement.
Traditional academic publishers often claim exclusive rights of use to a work. In such cases, a publisher has the sole right to use a work (i.e. to reproduce it, disseminate it, and make it publicly accessible). By contrast, publishing scholarly works under the open access model involves the following legal requirements:
“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 (community standards, will continue to provide the mechanism for enforcement of proper attribution and responsible use of the published work, as they do now), as well as the right to make small numbers of printed copies for their personal use.” (Berlin Declaration)
Open Access Publishing (Gold Road)
Publishing with an Open Access publisher is known as the “gold road” to open access. In this model, the author merely grants a non-exclusive right of use to a publisher, leaving the possibility of additional use. Gold Open Access publications should always appear under a Creative Commons license. The Creative Commons license does not affect the authors’ moral rights of authorship. In other words, the author must be attributed upon each use.
Self-Archiving (Green Road)
Self-archiving in a repository is known as the “green road” to open access. The term refers to the additional publication, usually on a repository, after having published with a traditional publisher.
As of January 1, 2014, Germany instituted legally indispensable “secondary exploitation rights.” These apply to publications from a research position that is at least 50% publicly funded. On this basis, many journal articles may be made available twelve months after their first publication. Only the accepted manuscript version may be used (see Article 38(4) of the German Act on Copyright and Related Rights).
If this right does not apply to your publication, the following notes might help:
- According to Article 38(1) of the German Copyright Act, the author may re-publish his or her work a year after publishing it in a periodically published collection (journal, edited volume) unless otherwise agreed.
- The right to self-archive is unlimited and immediate if you have granted the publisher a non-exclusive right of use only or if you have expressly reserved the right to self-archive.
See your publishing agreement to find out which rights of use were transferred. If you are no longer aware of your contractual terms, you can use the SHERPA/RoMEO-datenbase as a guide. This directory specifies which publishers permit the self-archiving of scholarly publications.