What are the key issues to consider when self-archiving publications in open access repositories (including document servers and online archives) or on websites?
Self-archiving is a method of providing open access to academic publications that have already appeared in a non-open access journal. Self-archiving is also known as green open access.
There are different options for self-archiving:
- Depositing articles in an institutional or subject repository
- Making articles available on a dedicated website
There are two primary disadvantages to this latter option: it does not guarantee digital preservation, and the publication is less visible to the academic community than articles incorporated in institutional or subject repositories.
Document servers, online archives and other repositories: which is the most suitable repository for your publication?
Most publishers permit authors to self-archive their work after a specified embargo period. This provides a way of providing open access to publications which were not originally published in open access journals. In many cases, however, this permission does not extend to the publisher's version-of-record, but only to the author's refereed final draft known as the postprint.
The specific conditions are governed by the author agreement which is signed prior to publication. It is vital to carefully review this agreement before signing it, not least because it defines which rights the author is transferring to the publisher and how long the embargo period will last. It is advisable to check with the publisher if there is any uncertainty.
The SHERPA/RoMEO database provides a basic overview of the terms and conditions individual journals and publishers apply to the self-archiving process.
What are the differences between preprint and postprint versions?
Policies on self-archiving: where can I find information on journals issued by different publishers?
Legal provisions regarding self-archiving
The amendments to the German Copyright Act in 2014 offer a solidly based legal framework for the self-archiving process. Essentially, the amendments state that the author of a scientific work produced during scientific research which received at least half its funding from public sources – and which was published in a periodical that is issued at least twice a year – retains the right to make the accepted manuscript publicly available after an embargo period of 12 months from the date of the first publication, as long as this is not for commercial purposes. This applies even if the author has transferred an exclusive exploitation right to the publisher or editor. The clause states that the source of the first publication must be given (§ 38 (4) of the German Copyright Act, UrhG).
The exclusive exploitation right is nevertheless retained by the publisher. For the purposes of self-archiving, authors are simply granted the basic right to deposit their publication once in a repository.
The German provisions on self-archiving only refer to the electronic deposit of the publication, hard copies are not allowed. Authors are free to choose the place for their deposit but in order to avoid complications they should make sure that German law is applicable.
This right to self-archive a work that has already been published is inalienable. It voids any agreements concluded between an author and publisher that are detrimental to the author, such as provisions attempting to restrict self-archiving.
This amendment to the German Copyright Act primarily affects copyright holders whose institutions form part of the four major research organisations (the Fraunhofer Society, the Helmholtz Association, the Leibniz Association and the Max Planck Society) and members of other non-university research organisations, since these are the only academics who receive institutional funding. It does not apply to academics who are permanently employed at universities unless the publication has arisen as part of a publicly funded project (e.g. in the course of internal university programmes, third-party funding from public funds). Current interpretation conclude that the amendment can also be applied to all publications emanating from university research - see post on emailing list IP-OA_Forum on October 25th 2017 (German only): Got to text
Consent for electronic self-archiving must always be obtained from all the authors unless the decision-making rights have been transferred to the corresponding author or the rights to exploit the work have been ceded to the institution. Co-authors may not withhold their consent without good cause.
The self-archiving process is generally governed by an agreement made between the author and the operator of the repository. In some cases the agreement is concluded by the institution.
Advice regarding the self-archiving of those publications not covered by the amendments to the German Copyright Act mentioned above can be found in the brochure “Zweitveröffentlichungsrecht für Wissenschaftler: Geltende Rechtslage und Handlungsempfehlungen“ by iRights.Lab (in German).
Author agreements (publication agreements): which aspects are relevant?
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).
Hartmann, T. (2017). Green OA mit Zweitveröffentlichungsrecht gem. § 38 Abs. 4 UrhG. 15 October 2017, ipoa-forum. (accessed 29/11/2022) (German only)
German act on copyright and related rights of 9 Semptember 1965, last amendmends on 23 June 2021 (BGBl. I S. 1858), Bundesministerium für Justiz. (accessed 29/11/2022)
Bruch, C. & Pflüger, T. (2014). Das Zweitveröffentlichungsrecht des § URHG § 38 Abs. URHG § 38 Absatz 4 UrhG – Möglichkeiten und Grenzen bei der Anwendung in der Praxis. Zeitschrift für Urheber- und Medienrecht, 58(5), 389-394. (German only)
Spielkamp, M. (2015). Zweitveröffentlichungsrecht für Wissenschaftler: Geltende Rechtslage und Handlungsempfehlungen. iRights.Lab, Policy Paper Series Nr. 1. (German only)