By Lea Sophie Singson, Legal Data Steward with FAIRagro, Lea-Sophie.Singson@fiz-karlsruhe.de
If a researcher submits her publication to a journal, the subsequent use of that publication could potentially be problematic if the journal acquires rights to it. These are the copyright options available to researchers for the subsequent use of their publications or research data.
In the course of a research process, sooner or later the publication of the results is also on the agenda. Whether the publication is a text or a data set, the choice of journal often plays a decisive role. This is because the publishers of the journals usually specify what scientists are allowed to do with their publications before, during and after the publication process. So, what rights do scientists have with regard to sharing and reusing their own publications and research data? Can they share preprints and postprints with colleagues or the public independently of a journal’s publication process?
Freedom of publication is freedom of research
Publishing research results is by no means a trivial matter. Publications serve not only to boost one’s reputation and academic career, but also to advance research practice. They are also an essential part of contributing to new knowledge. This is why the constitutional right to freedom of research and academic freedom includes the right to publish. This means that researchers can decide if, where and how to publish their results.
The publication of a text publication
Scientific articles generally enjoy copyright protection. In this case, the author is authorised to decide how and if their work is published. If several people have written a paper together as co-authors, they can decide together on publication. For scientific articles, this decision is usually made by submitting the paper to a journal. Legally speaking, when the paper is submitted and accepted, the author and the journal’s publisher conclude a contract on the type and scope of use of the paper by the publisher. The rights of use transferred from the author to the publisher in the contract can be either non-exclusive or exclusive.
Non-exclusive and exclusive rights of use:
A right of use enables the owner to reproduce, distribute and publish the work on- and offline. If the rights are exclusive, only the rights holder may use the work. They may also grant rights of use to third parties. In the case of a non-exclusive right of use, however, the author may also grant others a right of use.
Preprints in the context of publication
Particularly in journals with a peer-review process, a publication goes through several editing loops before publication. In addition, the journal may specify editorial comments and layout adjustments. Depending on the field of research and the results obtained, it may be advantageous for an author to publish their work as a preprint before peer review. Whether this is possible depends on the author’s contract with the publisher. There may be a relevant clause in the contract itself. Some publishers also have general preprint policies that regulate the publication of preprints. If the author has not granted the publisher exclusive rights of use, they can continue to use their publication alongside the publisher, even without an explicit clause.
Reuse within the scope of the secondary publication right
Even if the publisher of the election journal has been granted exclusive rights of use, Section 38(4) of the German Copyright Act (Urheberrechtsgesetz) provides the author with a secondary publication right for certain types of contribution. This secondary publication right cannot be taken away from the author even by granting the publisher an exclusive right of use. In order to enable the author to use their own publication within the scope of this secondary publication right, the following requirements must be met:
It must be a scientific contribution (1).
The article must have been produced as part of research activity, at least half of which is publicly funded (2).
Finally, the article must have appeared in a periodically published collection at least twice a year (3).
What this means in detail:
The scientific contribution
A scientific contribution can take any form of publication, regardless of factors such as external appearance or scope. In principle, a data publication can fulfil this criterion. However, the basic prerequisite is that the contribution is a copyright-protected work.
The requirements for copyright protection are as follows:
A contribution is considered scientific if it is the result of research, i.e. an endeavor to gain knowledge.
At least half of the research activity must be publicly funded
At least half of the research activity on which the scientific contribution is based must also be publicly funded. The term “public funding” is controversial in practice and has not yet been conclusively clarified by the courts. In any case, the 2013 explanatory memorandum limits the scope of application to research activities within the framework of third-party funded research, as well as those at non-university research institutions that receive institutional funding. Conversely, contributions arising from purely university research without third-party funding, and from purely private research activities, do not benefit from the secondary publication right. As this is a German legal regulation, EU-funded activities are also excluded.
Publication in an anthology
An anthology is a collection of works, such as journal articles, which may be published online. The anthology must be published at least twice a year.
If the requirements for secondary publication are met, the author can publish the article herself twelve months after the initial publication, or give it to a third party for secondary publication, thus making use of her own work. Regarding the form of publication, please note that the paper may only be published as an accepted manuscript. The accepted manuscript version contains more than the preprint, as it may already contain peer annotations. However, it is not yet the final version printed in the journal with editorial changes and a special layout. Finally, the author must cite the source of the first publication in such a way that the reader can locate and cite it without additional effort.
Reuse by sharing with colleagues
Even when a publication has been submitted to a journal under an exclusive license, it is common in researchers‘ day-to-day work for a colleague to express an interest in the publication. In this case, Section 60c German Copyright Act allows the publication to be shared with a defined group of people for non-commercial scientific research purposes, enabling researchers to reuse their own publication.
The reuse of research data
Research data, like raw data and annotated and curated datasets, is increasingly being published alongside or separately from text publications. Unlike text publications, research data is often not protected by copyright. It can be reused and shared with colleagues without restrictions.
Conclusion
Copyright law provides researchers with a variety of tools to facilitate the subsequent use of their publications, such as secondary publication rights and sharing, in the context of scientific research. The choice of publication medium can also be crucial for subsequent reuse. Publishing in an open access journal can be particularly advantageous for subsequent use, as many project sponsors also specify this type of publication.
The relationship between the author and the publisher should be considered separately from the relationship between the author and their employer. Further interesting information on copyright in the employment relationship can be found here: https://irights.info/artikel/rechte-wissenschaftliche-arbeit/32052
Editorial note: This text also appears as a cross-post on irights.info
This text is licensed unter CC-BY 4.0.