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Authors' Rights and Copyright
Authors' rights are not affected by publishing/depositing items on the Institutional Repository of the FU. Authors are at liberty to publish their item subsequently in printed or other media or to deposit it on other servers if they so desire.
As recommended by the Wissenschaftsrat, all FU scientists and scholars are encouraged to safeguard the rights from publishers and other persons to whom authors assign rights to their intellectual property, the right to open access publication of their work - if necessary, after an embargo period. Upon signing the Open Access Publication Agreement between the Author(s) and the Universitätsbibliothek you grant permission to the Universitätsbibliothek to archive the work on the Institutional Repository of the FU, to convert or migrate file formats should this become necessary, and to forward a copy to the Deutsche Nationalbibliothek, which is a legal requirement. The Universitätsbibliothek undertakes to retain the item indefinitely, and render it retrievable via FU Digital Library, catalogs, and appropriate search engines.
Copyright law:Authors' rights concerning secondary publication of a work: Preprints and postprints
Please note that these pages are intended for general purposes of information only and are not legally binding or valid. For further details about open access, see What is Open Access?.
German Copyright Law
Authors' rights are defined by the German Law on Copyright (UrhG). If there are no special agreements, then according to German law (§38 UrhG) the following appies:
(1) If the author agrees to publication of the work in a collection that appears periodically, then the publisher has the exclusive right to reproduce and distribute the work if nothing is agreed to the contrary. However, one year after publication the author has the right to reproduce and distribute the work elsewhere if nothing is agreed to the contrary.
(2) In the case of publication of the work in a collection that does not appear periodically and for which the author receives no remuneration, one year after publication the author has the right to reproduce and distribute the work elsewhere if nothing is agreed to the contrary.
(3) If the work is published in a newspaper, the publisher has only the simple right of use, if nothing is agreed to the contrary. If the author assigns to the publisher exclusive rights of use, the author is still entitled, immediately after publication, to reproduce and distribute the work if nothing is agreed to the contrary.
Previously, the rights to distribute any work published before 1995 electronically lay automatically with the author as this form of use was unknown at the time the contract was concluded. However, as of 1 January 2008 the situation has changed: the Second Act Governing Copyright in the Information Society has been passed. The older version of the law held that granting rights for as yet unknown forms of use was invalid, but this paragraph (German Copyright Law § 31 Abs. 4 UrhG) has now been deleted and a new paragraph added which gives publishing companies the opportunity to claim these rights of use retrospectively (§ 137 1 UrhG). Now that the law reform has come into force (1 January 2008) the following applies:
If the author of a work assigned unrestricted rights to a publisher in the period 1 January 1966 to 1 January 2008, when the law reform came into force, the publisher does not require the author’s permission to make the work available via the Internet. There are two exceptions to this:
1. For works published in the period 1 January 1966 to 31 December 1994, the author granted the simple right of use to his/her university or other institution before 1 January 2008. Then the publisher cannot automatically claim the right to exploit the works electronically.
2. The author has one year from 1 January 2008 to file an objection to the publisher exploiting the work via the Internet. As long as the publisher has not put the work on the Internet the objection can also be filed at a later date.
For a current overview of the copyright provisions of the major publishing houses see SHERPA/Romeo Project.
Negotiating publication agreements in the future
After its first publication, many authors wish to make their work available to others, free of charge, on their homepage, their institute's website, or on their university's open access institutional repository. To do this, the author requires the permission of the original publisher of the work. In the areas of science, technology, and medicine publishers usually demand exclusive rights of use (§31 UrhG) to articles they publish, which means that legally the work cannot be republished. However, many publishers in the fields of science, technology, and medicine do allow postprints, on the condition that reference is made to the first publication. Some publishers also allow preprints under certain conditions.
When negotiating the terms of future publishing agreements, the FU recommends that the following clause be included in the agreement:
"The Universitätsbibliothek of the Freie Universität Berlin shall be entitled to make the document freely accessible to the general public on the Institutional Repository of the FU or in some other form at the time of publication (alternatively 3 or 6 months after publication of the document)."
In German: "Die Universitätsbibliothek der Freien Universität Berlin hat das Recht, den Artikel mit dem Zeitpunkt seines Erscheinens (alternativ 3 oder 6 Monate nach Erscheinen des Artikels) der Öffentlichkeit über den Dokumentenserver oder sonstiger Form frei zugänglich zu machen."
Further reading on copyright law and open access (German and English):
- Informationsplattform Open Access
- remus-Hochschule: Grundwissen Urheberrecht
- The Göttinger Declaration on Copyright for Education and Research 5 July 2004
- Rechtsfragen zu Open Access
- Spindler, Gerald: Rechtliche Rahmenbedingungen von Open-Access-Publikationen
- Graf, Klaus: Urheberrecht für Autoren: Eigene Arbeiten im Netz