Second publication

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The term secondary publication describes the republication of a scientific article after it has already been published for the first time. The aim of a secondary publication is usually to make accessible articles that have been published in scientific journals but are not accessible to everyone behind a paywall . The secondary publication uses the Green Open Access route .

General

In principle, both monographs and articles can be re-published. In practice, so far, essays have mostly been published secondarily on private homepages, institute homepages or on document servers. The published version of the article can be the original version, but it is mostly a preprint or postprint version.

Second publication right in Germany

The second publication right is regulated in Section 38 of the Copyright Act. According to § 38 (1) UrhG, every author has the right to make works that were published in a periodically published collection (e.g. specialist journal ) again publicly accessible after a waiting period of 12 months. It is irrelevant whether the author has granted the publisher a simple or exclusive right of use . Since this second publication right can be excluded in the publishing contract , § 38 UrhG was expanded with the aim of ensuring more legal certainty for authors.

In October 2013, Article 4 was added to Section 38 UrhG, which has been in force since January 1, 2014. This amendment was justified with the aim of improving the free access to scientific results within the framework of Open Access. This regulation gives authors the right to publish scientific articles as a second publication, even if this right was not granted in the publishing contract for the first publication. For this second publication right according to § 38 (4) UrhG, certain conditions must be met:

  • The first publication appeared in a collection that appears periodically at least twice a year.
  • The first publication was based on research, at least half of which was publicly funded.
  • The second publication may only take place 12 months after the first publication.
  • The secondary publication may not be for commercial purposes.
  • The source of the first publication must always be mentioned in the second publication.
  • Only the manuscript version ( postprint ) assessed by the publisher may be published a second time (i.e. not the final publisher's version).
  • The second publication right is limited to the form of use of making publicly available, i.e. to Internet publication.

In addition to these conditions, the registered office of the publisher or the place of publication of the first publication must be taken into account in order to exercise the right of second publication according to § 38 (4) UrhG , as this normally determines which law applies in the event of disputes regarding the second publication. For example, if US law applies to a publication contract and if in doubt, a court in the US is taken, the secondary publication right would most likely not exist. Regardless of the registered office of the publisher and the place of publication, German law can be agreed in the publication contract for the first publication, as a result of which the second publication right would apply. However, it hardly seems possible that foreign publishers with superior bargaining power will opt for this procedure.

Although § 38 (4) UrhG explicitly refers to scientific publications, it is not the case that a secondary scientific publication may be published according to these regulations alone . It can also be published based on Section 38 (1) UrhG or Section 38 (2) UrhG, provided the other requirements of these standards are met. This can be the case, for example, if the publishing contract does not contain a restriction to the manuscript version with regard to a secondary publication.

Second publication requirement in Baden-Württemberg

In Section 44, Paragraph 6 of the State University Act of Baden-Württemberg, there is a passage that calls on all universities to oblige their scientists to publish a second time in their statutes. All articles published in scientific journals (or periodicals with at least two issues a year) should be published a second time one year after their first publication. This only applies if the contributions were made “in the context of official duties”. A university statute may also stipulate that the secondary publication must take place in a repository.

The University of Konstanz issued on 10 December 2015 first and only university an appropriate statute, which contains the obligation to secondary publication.

Legal dispute about the secondary publication obligation

Various arguments can be put forward against an obligation to publish a second time. For example, the obligation to publish a work secondarily attacks the principle of academic freedom and calls into question the mastery of works, which allows an author to decide where and how he wants to publish a work. Similarly argues z. For example, the Heidelberg appeal of 2009, which criticized the compulsion to open access forms of publication.

The Faculty of Law at the University of Konstanz therefore sued the Mannheim Administrative Court against the obligation to publish it twice. According to the judges of the Administrative Court, the statutes of the University of Konstanz are correct, but there are concerns about the state university law, which may be unconstitutional. Due to these constitutional concerns and since the right of secondary publication falls within the area of ​​copyright, for which the federal government is responsible, the proceedings were referred to the Federal Constitutional Court .

Individual evidence

  1. ↑ Law on Copyright and Related Rights (Copyright Law) § 38 Contributions to collections. Federal Ministry of Justice and Consumer Protection. Federal Office of Justice, accessed on April 8, 2020 .
  2. ↑ a b Copyright in Science. (PDF) Federal Ministry of Education and Research, accessed on April 8, 2020 .
  3. ↑ Law on the use of orphaned and out-of-print works and a further amendment to the copyright law. (PDF) Federal Law Gazette 2013, Part I, No. 59, p. 3728, accessed on April 8, 2020 .
  4. ↑ Decision recommendation of the Legal Committee. (PDF) BT print. 17/14194, accessed April 8, 2020 .
  5. ^ Michael Fehling: Constitutionally compliant design of DFG funding conditions for open access publications . In: Order of Science . No. 4 , 2014, ISSN  2197-9197 , p. 179–214 ( ordnungderwissenschaft.de [PDF; accessed April 8, 2020]).
  6. ↑ FAQ on the right of secondary publication. Priority initiative "Digital Information" of the Alliance of German Science Organizations, accessed on April 8, 2020 .
  7. ^ Federal State Law BW § 44 LHG | State University Act of January 1, 2005 | valid from: 30.03.2018. In: Landesrecht BW Bürgerservice. March 30, 2018, accessed April 6, 2020 .
  8. ↑ Statutes for the exercise of the scientific second publication right according to § 38 Abs. 4 UrhG. (PDF) University of Konstanz, December 10, 2015, accessed on April 6, 2020 .
  9. ↑ Eric W. Steinhauer : On the visibility and dissemination of legal dissertations . In: Open Access in Law . Nomos Verlagsgesellschaft mbH & Co. KG, 2019, ISBN 978-3-8487-6257-6 , p. 45–46 , doi : 10.5771 / 9783748903659-37 ( nomos-elibrary.de [accessed on April 6, 2020]).
  10. ↑ Roland Reuß : Copyright: Our culture is in danger . In: FAZ . April 25, 2009, ISSN  0174-4909 ( faz.net [accessed April 7, 2020]).
  11. ^ Dispute over the right to secondary publication goes to Karlsruhe. In: Research & Teaching. November 2017, accessed April 6, 2020 .
  12. ↑ Eberhard Wein: Dispute about the right to second publication: Profs complain against their university. In: Stuttgarter Nachrichten. September 26, 2017, accessed April 6, 2020 .