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Open Access Publications Legal Framework

Please note that the information provided here is for general use only. For legally-binding advice, please contact either the the Center for Intellectual Property at TU Berlin (ZfgE) or a legal expert specializing in copyright law.

Copyright and Open Access

General

Copyright law grants authors the right of use to their works. The rights which an author retains after signing a contract with a publisher are determined by the exact wording of the specific contract.

Traditional academic publishers often acquire exclusive rights of use for a work. This means that the publisher owns exclusive rights for the work and all other parties (including the authors themselves) must obtain permission for reuse. When you publish a work in the TU Repository or with the TU University Press, you as an author grant TU Berlin non-exclusive rights of use, meaning that you retain the right to publish the entire work or excerpts thereof elsewhere.

Open Access publishing of academic works in accordance with the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities requires that third parties are not only able to read the content, but also to reuse the content for different purposes without charge. One way to do this, is for authors to disseminate their works under a Creative Commons license.

Open Access Publishing (Gold Road)

“Gold road” refers to immediate Open Access publication with an Open Access publisher. Open-Access publications undergo a peer-review process to ensure academic standards. Access is global and free of charge.

Open Access Publications Legal Framework

For an Open Access publication, the author grants the publisher non-exclusive publication rights only, to enable reuse of the work. Open Access publications should always use a Creative Commons license. TU Berlin’s Open Access policy recommends the CC BY license. The author’s moral rights remain unaffected, meaning that the work must be atttributed to the author in every reuse.

Self-Archiving (Green Road)

Self-archiving in a repository is also known as the “Green Road.” This makes a publication available Open Access, that was previously only accessible behind a paywall.

The Right to Self-Archive

In Germany, the right to self-archive came into effect from 1.1.2014 (Section 38 (4) German Copyright Act [Urheberrechtsgesetz - UrhG]). This right applies irrespective of any agreements made with publishers. The law permits self-archiving of many journal articles 12 months after publication. However, this only applies to the “Author's Accepted Manuscript”, i.e. the version of the article accepted for publication containing all changes made after peer-review.

The following may be useful for publications for which the right to self-archive doesn't apply:

  • Pursuant to Section 38(1) UrhG, authors may publish their work elsewhere one year after publication in a periodical (journal, edited volume, etc.), provided that there is no agreement to the contrary.

  • Self-archiving is possible immediately and without any restrictions, provided the author granted the publisher non-exclusive right of use only or expressly reserved the right of parallel publication.

Our self-archiving services can assist in informing you about your rights.

Rights of Use for Self-Archiving

  • The rights of use granted at the time of first publication are specified in your publishing contract. If you are no longer aware of the exact terms of your contract, you can use the Sherpa Romeo database for guidance. This database provides information regarding different self-archiving publisher policies for academic works. However, the information provided is not legally binding. In case of doubt, the publishing contract applies.

  • As an author, when you deposit your work in the TU repository or publish with the TU University Press, you grant TU Berlin non-exclusive right of use only. This means you retain the right to publish the entire work or excerpts thereof elsewhere.

  • It's also possible to retain self-archiving rights with other publishers by not granting exclusive rights of use in the contract. For example, you can include the SPARC Author Addendum as part of your contract. In the addendum, authors retain non-exclusive right of use for self-archiving in a repository. Please note that the addendum also requires the publisher signature to be legally binding

  • However, if you have already granted exclusive right of use, you can apply for the right to parallel publication (possibly after an embargo of 6 or 12 months)

  • TU Berlin's Open Access Policy encourages the University’s members to exercise their self-archiving rights and, if possible, to make all publications accessible simultaneously, either parallel or with delayed publication, via repositories such as the TU repository DepositOnce. Our self-archiving services can assist in informing you about your rights

Further Information

Michaela VoigtTel.: +49 30 314-76130
Jana SchildhauerTel.: +49 30 314-76067
Elena Di RosaTel.: +49 30 314-76132

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