Legal aspects
The open access movement strives to make scientific information openly accessible. In light of this, we offer legal counselling for authors/originators publishing via open access media. Legal advice in the open access context essentially includes topics like the right of secondary exploitation, the grant of rights of use, information about creative commons licences and help with publishing contracts/author's contracts. The applied legal basis is Austrian law. The following explanations do not claim to be exhaustive and binding.
Please note that the following section was translated form German for informational purposes only and does not constitute legal advice. For legal advice a specialist should be consulted.
Copyright
A work is an intellectual creation and it is the copyright's purpose to protect works and their authors/originators and especially to reserve them the right of exploitation of their works within certain limits. On the other hand, an active exchange of information is desired to impart knowledge to the general public. This is also the goal of the open access movement that aims to create open access to scientific information. To make sure that authors/originators of scientific contributions can publish via open access media, the grant of rights of use has to be carefully thought through.
Right of exploitation
The authors/originators can permit third parties to use the work in one or all of the forms of exploitation reserved for authors/originators (see § 24 of the Austrian Urheberrechtsgesetz: permission to use and right of use). They can grant another person a permission to use or the exclusive right of use. The contract entered into with the authors/originators settles in which way the work can be used by the person granted the permission to use. It is advisable to not grant publishers an exclusive right of use.
Right of secondary exploitation (Zweitveröffentlichung)
Since October 1st, 2015, a right of secondary exploitation for authors/originators of scientific contributions is in force according to § 37a of the Austrian Urheberrechtsgesetz (copyright law). This settles that authors/originators of a scientific contribution that have granted an exclusive right of use to a publisher or editor are granted the additional right to make their contributions publicly accessible again, after an embargo period of twelve months after the first publication and for non-commercial purposes. Authors/originators are only granted this right if they are members of the scientific personnel of a research institution that is funded to at least 50% through public funds and if the contribution was published in a collection periodically appearing at least biannually. The source of the first publication has to be indicated. Any divergent agreement to the detriment of the originator is void. The limitation to collections periodically appearing at least biannually excludes commemorative publications, conference transcripts and anthologies.
Overview of the criteria for the application of the right of secondary exploitation:
- scientific contribution
- member of the scientific personnel of a research institution that is funded to at least 50% through public funds
- the contribution has to be published in a collection periodically appearing at least biannually
- an embargo period of twelve months after the first publication has to be observed
- accepted manuscript version
- non-commercial purposes
- the source of the first publication has to be indicated
- Austrian law
The right of secondary exploitation enables scientific authors/originators to publish their publications via open access media and they can thus make their research results accessible to a wide professional public in an uncomplicated, timely and worldwide manner.
If the right of secondary exploitation does not apply, it has to be considered that a secondary publication is possible immediately and without limits, if no contractual exclusive right of use has been granted to the publishers or if the authors/originators have expressly reserved the right of simultaneous online publishing. Unfortunately, the right of secondary exploitation and the publishers' guidelines are often phrased unclearly and inconsistently. We are happy to assist you with clarifying your rights.
Publishing contract/Author's contract
In Austria, the publishing contract/author's contract is not regulated in the Urheberrechtsgesetz (copyright law) but in §§ 1172 and 1173 of the Allgemeines Bürgerliches Gesetzbuch ABGB (Austrian Civil Code). A publishing contract/author's contract is a special informal contract generally entered into by the author/originator and the publisher for the publishing of an article in a professional journal or an anthology or for the publication of a monograph. The contract regulates to what extent the rights of exploitation for the publication are granted to the publisher. By standard, many publishing contracts/author's contracts entail the grant of exclusive rights of use. It is advisable to avoid the grant of exclusive rights of use by removing such passages from the contract or by adding addenda that secure the option to publish via open access media. In order to become legally binding, contract amendments must be signed by all contracting parties (publishers/authors).
Examples for such addenda:
„The publisher agrees to the author reserving his/her right to deposit a digital copy of the document on a publicly accessible academic non-profit-server before/throughout/after the publishing through the publisher and for an indefinite period. The author undertakes to cite the original document on the academic non-profit-server.“
„For the online publishing of the work, the publisher is granted a simple right of use without obligation to use. From the day of the publication in book version, the author is free to make the work publicly accessible on the internet simultaneously and free of charge as PDF-document on his/her homepage, an institutional server or a suitable subject repository.”
"The author is permitted to use the article with the "title of the contribution" for non-commercial purposes as an open access publication and in repositories at the same time as it is published."
Authors/originators that publish their articles in subscription-based journals can reserve the right to the simultaneous provision via open access media. The “SHERPA/RoMEO-listings” give an overview of options (legally non-binding) permitted by publishers. Further information can be found in the copyright policies or on the information pages of journals and/or publishers. Ultimately, the publishing contract (author's contract) is decisive.
Creative Commons Licences
If you want to make your publication openly accessible and are the holder of the rights to this publication, you can specify the exact rights of exploitation to your work in form of a licence (holder of the rights is in general the author/originator if he/she has not assigned his/her rights of use to a third party, e.g. a publisher).
The use of the Creative Commons (CC) licence model is widespread. Creative Commons (CC) is a non-profit organisation offering standard licence contracts that enable authors/originators to easily grant rights of use to their works to the public. In the field of science, CC licences are mostly used to allow the dissemination of publications in accordance with the spirit of open access.
You can find more information on the Creative Commons Website.
If you are looking for the suitable licence for you, this Creative Commons website may also be helpful: https://creativecommons.org/choose/
Related links