General copyright conditions of Open Access publishing in KartDok
3) Licence choice: KartDok licence or Open Content licence?
While, from a copyright point of view, the first publication of original contributions in KartDok is generally unproblematic, questions regularly arise about the permissibility of second publications of contributions that have already appeared in printed or electronic form in monographic collections, including festschrifts, encyclopaedias, congress volumes and handbooks as well as subscription journals, yearbooks and newspapers.
2.2) Publisher contracts
2.3) Publisher policies
2.4) Copyright and legal second publication right
2.5) Open Access rights in alliance, national and FID licences
2.6) Clarifying second publication rights
In order to check, if your publication may be published a second time, you first have to resolve the following questions:
- Which is the legal basis of this specific case?
- Which version (e.g. preprint, postprint or publisher version) may when (e.g. after a so-called embargo period) be published a second time?
- In which kind of repository (e.g., institutional repository or subject repository such as, for example, KartDok) may the contribution be republished?
- Which further restrictions have to be observed?
Fundamental legal basics and aids that can give answers to these questions, are briefly introduced in the following.
In case the first publication or a second publication has already been published under a free licence, a second publication in KartDok normally is not excluded. First the following questions should be resolved:
- Was the first publication published under an open licence, e.g., a CC-BY licence?
- Have you, as the author of a Closed Access publication, already published a second publication and was this published under a free licence (e.g., a CC-BY licence)?
- Have co-authors of this Closed Access publication already published a second publication (members of some research institutions, for example, have to proceed to the second publication of the accepted manuscript version of a journal article directly after publication – sometimes under a free licence, e.g., a CC BY-NC licence)?
To answer these questions, Open Access publications in repositories can be found, among other possibilities, with the help of these search engines:
- BASE (large index, only permanent data sources, simple & advanced search, filtering search results; no deduplication of different versions)
- Dissemin (large BASE index, simple & advanced search, filtering search results)
- CORE (large index, simple & advanced search, filtering search results; on start page at first only simple search – there no search for title or DOI)
- Open Access Button (large index, simple search)
- Google Scholar (large index, deduplication of different versions; no advanced search, limited options for filtering results, proprietary service: ranking algorithms and reasons for non-/indexing non-transparent)
The publisher contract may contain an agreement, which rights of use you as the author granted to the publisher and whether or on what conditions a second publication is possible. The publisher contract that was concluded with you for the first publication is binding.
- The publisher contract (or Copyright Transfer Agreement) is transmitted mostly in electronic form and is not necessarily signed by you.
- If there is a written contract, it is important to check the contract with regard to the rights that were granted and possible explicit provisions concerning the authors’ second publication rights (also “sharing rights“, “deposit rights“, “self-archiving rights“).
Once a relevant passage is identified, you should not yet stop checking the rights at this point – not even if the contract allows a second publication. It may be possible that because of overall regulations and agreements a second publication may be possible under other and possibly even better conditions (mainly concerning the version and the embargo period).
- Mainly regarding journals, the online database SHERPA/RoMEO provides a quick overview which publishers and journals under which publisher terms allow non-commercial second publications:
- Are second publications allowed?
- When after the first publication can the second publication be published (so-called embargo period)?
- For checking the rights on the basis of publisher policies, the overview of the University of Cambridge can also be consulted regarding contributions in compilations (book chapters).
- Moreover, international big publishing houses have often published their policies for second publications on a central web page; if necessary, these web pages of many big publishing houses can be found via the web page howcanishareit.com (see under: "Publisher Sharing Policies").
- For this purpose you should consult your respective contract and/or contact the publisher or other third parties to whom rights to the work were granted.
- If you have waived all exploitation rights, you would have to obtain for your files a written consent from the publisher or other third parties, to whom rights were granted. The document should specify the licence that you intend to use for your work or which is granted by the publisher (for this see also pt. 2.6).
(a) Negotiable second publication right
If no explicit publisher contract was concluded, then the provisions of paragraphs one and two of § 38 copyright act (UrhG) amended with effect from 1 January 2014, have to be considered in the first place. They are relevant for contributions in journals and yearbooks (§ 38, para. 1 UrhG) and for non-commercial contributions in non-periodical monographs (§ 38, para. 2 UrhG) – for instance handbooks, encyclopedia, festschrifts or congress volumes.
- According to this norm, the publisher, in case of doubt, obtains indeed an exclusive right of use for the copying, distribution and public accessibility of the respective work. Neverthless, you are allowed to republish your contribution after the end of a twelve-month embargo period elsewhere and this also includes second publications in KartDok – unless otherwise agreed upon with the respective publisher or other third parties.
- For a second publication on the basis of paragraphs one and two of § 38, copyright act (UrhG), the publisher version may be used and it can be published at any place, for any desired purposes and, if desired, a free licence can be used.
If, on the other hand, a different agreement was made regarding the rights of use, or the wording of an agreement is unknown or there is no information whether the agreement was made, it is not possible to make recourse to paragraphs one and two of § 38, copyright act (UrhG).
(b) Non-negotiable second publication right
For scientific articles the provisions of para. 4 of § 38 copyright act (UrhG) can be relevant - regardless of what has been agreed in the publisher contract.
- Should your scientific article have been written in the context of a research activity that was at least 50% publicly funded and published in a periodical, at least bi-annual, publication, then you can benefit from the amended limitations to copyright in § 38, para. 4 copyright act (UrhG), valid since 1 January 2014.
- You may have granted to a publisher an exclusive right of use related to such a contribution and conluded other agreements to your disadvantage. Nevertheless, you are -on the basis of this norm - free to make the work publicly accessible after a period of twelve months after the first publication, namely in the accepted manuscript version – but not in the publisher‘s layout. This is possible as far as there is no commercial purpose and the source of the first publication is indicated.
- In this context please also observe the FAQ for non-negotiable second publication right (DE) worked out by the Allianz der deutschen Wissenschaftsorganisationen as well as the respective recommendations of the iRights.Lab (PDF, 251 KB) (DE), they provide a good overview of specific questions regarding the limitations to copyright (§ 38, para. 4 UrhG).
In addition, please observe that the limitations to copyright (§ 38, para. 4 UrhG) related to the version and the embargo period for journal articles are sometimes more restrictive than the general publisher policy (see pt. 2.3) or the negotiated special rights in the context of a licence agreement (see pt. 2.5).
Irrespective of what is possible according to the German copyright law you can, if necessary, use those Open Access rights to your work that were agreed upon in the context of the so-called alliance, national and SIS licences. These Open Access rights (DE) offer relatively favourable conditions for the second publication and mostly apply to various international journal packages, including their contents.
- Available alliance, national and FID licences may include Open Access rights that are fixed in a contract for all licence users – institutions and their authors. These Open Access components grant to these - thereby authorized - authors specific Open Access rights for a second publication. Therefore, authors at scientific institutions that are licence users of alliance, national and SIS licences can, provided that such licences were assigned, without any further negotiations with publishers republish their publication – possibly in KartDok.
- For the journal, in which you published your publication for the first time, you should briefly check the following points regarding Open Access rights. For this purpose you can use the exhaustive overview of all alliance and national licence packages containing Open Access rights (DE) that covers all disciplines:
If checking the rights does not provide a result or only some unclear information, it is recommended to contact the publisher – with the aim to obtain unambiguous information and, if necessary, a legally binding permission from the publisher regarding the republshing of a specific publication. The inquiry should contain information on the following points:
- Complete bibliographic information
- Purpose of the inquiry
- Type of use (naming the desired version)
- Where the second publication is planned to be published, if necessary, explaining the (non-commercial) character of the repository
- If the second publication is planned to be published under a free licence, the kind of licence should be indicated
3.2) Open Content licences
When uploading the document on our server as well as on the basis of the written publishing agreement (PDF, 945 KB) (DE) you grant KartDok a simple right of use for copying, distributing and making available your work to the public on the internet and, in additon to this, also the right, especially for archiving purposes, to modify the respective data format.
In the context of public availability, the use and copying of your contribution published in KartDok by third parties, however, is only possible within the limitations provided for by German copyright – especially regarding copying for scientific, private, and other personal uses (§§ 53, 60c, 60d UrhG).
KartDok offers different licences:
- KartDok licence (all rights reserved)
- Open Access as part of an alliance or national licence (see 2.5)
Should you also be interested in a further use of your work, KartDok recommends – in accordance with the Alliance of Science Organisations in Germany („Appell zur Nutzung offener Lizenzen in der Wissenschaft“) (DE) – to assign a Creative Commons licence, with which you can publish your contributions in KartDok, e.g. for processing and distributing by third persons.
KartDok offers the following Open Content licences:
- Creative Commons 4.0 International licences: CC BY 4.0 | CC BY-SA 4.0 | CC BY-NC 4.0 | CC BY-NC-SA 4.0 | CC BY-ND 4.0 | CC BY-NC-ND 4.0 (for this also see the tool choice of CC licence features)
- Open Data Commons licences: ODC-By – Attribution License | ODC-ODbL – Open Database License | PDDL - Public Domain Dedication and License
- Public Domain: CC0 1.0 Universal | Public Domain Mark 1.0
Please note that the assignment of Creative Commons- or other Open Content licences, as a general rule, is only possible for first publications in KartDok and also for those works for which you hold an exclusive right of use.
In all other cases it is necessary to obtain the consent of the respective publisher before a free licensing (see 2.6).
On request KartDok staff will be happy to answer your questions regarding Open Access publishing. Please use our contact form.
Irrespective of whether or not you use our consulting service: before publishing in KartDok you are obliged to make sure that you hold the rights of use that you grant to the Staatsbibliothek zu Berlin – Preußischer Kulturbesitz, especially regarding the public availability of your work. KartDok retains the right, among others, in cases of criminal relevance, to block the access to already published documents.
Please note that the information given here is no legally binding information and the contents presented on these pages is mainly intended to provide a first orientation. The KartDok Team has carefully checked the information on these pages, but is in no position to give any legally binding information.