Author agreements (publication agreements): which aspects are relevant?

Legal basis

According to the German Copyright Act, authors are protected by copyright (cf. § 11 UrhG). Unlike industrial property rights, it is not necessary to apply for copyright because it automatically comes into force the moment a work is created. Copyright is non-transferable and expires 70 years after the author's death, though it may be transferred by inheritance (cf. § 64 UrhG; § 28 UrhG). The exclusive right of exploitation through publication and distribution of the work lies with the author (cf. § 15 UrhG). The author may grant exploitation rights to others, for example to a publisher or editor. A distinction is made between exclusive and non-exclusive exploitation rights. In the case of a non-exclusive exploitation right, the right holder (e.g. the publisher or editor) is entitled to use the work, concurrently with the author or any other entitled persons, in the manner permitted to him. In the case of an exclusive exploitation right, the right holder is entitled to use the work, to the exclusion of all other persons, in the manner permitted to him, and to grant non-exclusive exploitation rights. This can result in a situation where the author may be excluded from using their own work. Exploitation rights may be limited in terms of their geographical scope, duration or content. 

Unless otherwise agreed, the author of a journal article grants a publisher or editor the exclusive exploitation rights of reproduction, distribution and communication to the public. After a period of one year, however, this exploitation right changes to a non-exclusive exploitation right for the publisher or editor. Thus – 12 months after granting an exclusive exploitation right – the author has the right to the reproduction, distribution and communication to the public of the journal article in any other way as long as no other contractual agreements have been made. This also applies to scholarly contributions to edited volumes (collections) for which the author received no remuneration (cf. § 38 UrhG). If contractual agreements have been made which provide for an exclusive exploitation right for the publisher or editor, then § 38 Abs. 4 UrhG applies. Newspaper articles are governed by different provisions.

See also

Electronic publishing: what are the key issues to consider when publishing articles in open access journals?
Copyright and academic research: what are the key issues that affect you as an author?

Assignment of exploitation rights

The granting of an exclusive exploitation right implies a far-reaching assignment of rights. Authors are therefore advised to bear in mind the following points:

• As far as possible, you should only assign a non-exclusive exploitation right to the publisher in order to retain your right to exploit the work.
• You should endeavour to agree on an embargo period for self-archiving that is a short as possible.

It is therefore important for authors to pay careful attention to the contents of an author agreement and actively request changes to the stipulated terms where necessary. This can be effectively achieved by means of an addendum to the agreement. An addendum is a recommended means of adding a corresponding passage to the author agreement which prevents all rights from being transferred from the author to the publisher. 

Licensing

When publications are published in an open access journal, they are generally protected by an open content license such as Creative Commons (also known as a CC licence). In this case the author retains the exploitation rights. Creative Commons licences govern the extent to which other people may exploit the work.

Please consult the SHERPA/RoMEO database for more details on each publisher's policy on green open access. 

See also

How do Creative Commons licences work?
Self-archiving: Policies on self-archiving: where can I find information on journals issued by different publishers?

Disclaimer

Important note: The information and links provided here do not represent any form of binding legal advice. They are solely intended to provide an initial basis to help get you on the right track. ZB MED – Information Centre for Life Sciences has carefully checked the information included in the list of FAQs. However, we are unable to accept any liability whatsoever for any errors it may contain. Unless indicated otherwise, any statements concerning individual statutory norms or regulations refer to German law (FAQ updated 11/2017).