Self-archiving – on what grounds?
In principle, an author of a publication is also the creator and therefore holds all rights to the publication. If the publication is published via a publisher or other publication service, the author transfers so-called use rights to them for the purpose of publication. With regard to the self-archiving of a publication, it is first and foremost relevant whether these use rights were granted in a non-exclusive or exclusive manner. If only non-exclusive use rights have been transferred, self-archiving is generally possible.
However, if exclusive use rights have been transferred – which is still the norm for closed access publications – self-archiving is not possible on principle. In this case, however, certain provisions and legal grounds for self-archiving can be considered. These can be grouped into the following three categories.
If exclusive use rights were transferred, this was usually done in a publishing contract. In this agreement, authors may also have been granted explicit permission for self-archiving. If this is the case, authors can apply this accordingly.
In addition, publishers often have policies for self-archiving in which they specify the requirements and conditions for this. Such policies are particularly common for journals. These policies often use the actual term self-archiving, but can also be found under terms such as repository policy, reuse policy or sharing policy, or as part of the publication guidelines for authors. A valuable tool is the Sherpa Romeo database, which aggregates and summarises the policies of many publishers and journals and provides links to the publishers' websites (where the policies should be double-checked as a precaution).
If there is neither permission in the publication contract nor a policy for self-archiving, a request to the publisher can be made. Such requests are quite promising, as the publishers in question are often quite pragmatic in granting individual authorisations for self-archiving. Sometimes publishers even provide the full text at the same time.
Academic institutions or their libraries usually negotiate detailed agreements with some publishers for access to their publications or for special conditions for open access publishing. Sometimes these agreements also include provisions on self-archiving that grant members of the institution special conditions for self-archiving, for example improved conditions with regard to the publication version that can be used or the embargo (see the explanations below). The agreements may even stipulate that the institution may carry out the self-archiving on behalf of the author. Simply ask your institution's library about such agreements.
The German Copyright Act (Urheberrechtsgesetz, UrhG) primarily provides for two regulations that allow authors to republish their publications under certain conditions and subject to certain requirements.
Insofar as no other agreements to the contrary have been made with a publisher (usually in a publication contract, see above), authors may reproduce, distribute and make publicly accessible their publications published in "periodical collections" (usually journals) elsewhere after one year (UrhG, section 38 (1)).
There is also the so-called secondary publication right (Zweitveröffentlichungsrecht), which since 1 January 2014 has allowed authors to make scientific contributions publicly accessible under certain conditions after twelve months have elapsed since the initial publication (UrhG, section 38(4)). The decisive factor is that it can also be applied if an exclusive use right was transferred for the initial publication – which is then ineffective for the purpose of secondary publication (self-archiving). However, the law defines specific conditions:
- The (secondary) publication must not serve a commercial purpose.
- The article must have been produced as part of a research activity at least half of which was publicly funded.
- The article must have appeared in a collection that is published periodically at least twice a year. The article may be made publicly accessible at the earliest twelve months after the initial publication (applies to the full text).
- Only the accepted manuscript version of the article may be made available.
- The publication details of the initial publication must be stated.