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As several legal issues arise with regard to Open Access publication, the information provided here will help you understand the highly complex legal aspects of artistic and academic work in Austria. However, we have to point out that we can only provide some basic information, collated to the best of our knowledge, and by no means exhaustive. In individual cases, it needs to be verified, and it cannot replace legal counsel, nor is it intended to.

Open Access and copyright

Authors who wish to make their work available using Open Access should take special care to retain their right to utilize their documents online, which might not be the case especially if an article has already been published in Closed Access. Therefore, the Academy urges its students and staff to make use of their copyright themselves and not to confer the intellectual right to exploit their own artistic or scientific work on a third party (publishers etc.). Rather, authors ought to make sure expressly to retain such rights. Should this prove to be impossible for legal or economic reasons, we recommend either sharing the exploitation rights, giving both parties the same rights, or at least retaining the right to a (possibly delayed) secondary publication.

Many publishers of journals already permit such parallel publication of articles in institutional or disciplinary repositories. Again, the SHERPA/RoMEO directory provides information on whether a publishing house supports such self-archiving, and which version of the document (preprint: draft prior to reviewing; postprint: final version after reviewing, but without the publisher’s layout and page numbering; publisher’s version: article from the publisher’s website) may be issued.

Secondary exploitation right in Austria

Following the German legislation, the amendment to the Austrian Copyright Act 2015 now also includes a secondary exploitation right for authors of scholarly contributions. This amendment, which came into force on Oct. 1, 2015, aims to promote secondary publication by way of Open Access (Green OA) and to increase the share of research papers in scientific repositories.

Since Jan. 1, 2015, the following provisions of Austrian Copyright Act (§37a UrhG) have been in force: “The author of a scholarly contribution, which has been created by them as a member of academic staff of a research institution at least half funded with public means, and which has appeared in a periodical collection that appears at least biannually, also has the right to make their article publicly available after the expiration of twelve months after first publication in the agreed/accepted manuscript version if they have granted the publisher or editor a utilization or exploitation right in the work, if such publication does not serve a commercial purpose. The source of the initial publication must be specified. Any agreement to the author’s detriment shall be void/ineffective.”

However, one needs to take special care in this context! Apart from the fact that, due to the territorial principle, this provision is only effective within the Austrian national borders, the author has to meet the following criteria in order to be able to invoke this right:

  1. The article must be a scholarly publication which has to be
  2. written by a member of academic staff of
  3. a research institution at least half funded with public means and
  4. which has been published in a periodical that appears at least twice a year.

For more questions and answers on various details, please refer to “FAQs with regard to copyright issues in the sciences”.

Open Access and authors’ contracts

Ideally, publishing contracts should be drafted in a way that enables authors to retain their right to file their work in publicly accessible online archives or to deposit it into the repository of their respective institution. Moreover, authors should be careful not to assign any exclusive rights of use, as they would thus no longer have the right to put their own publications online. Ideally, authors only assign to the publishing house non-exclusive rights of use for specific purposes, i.e. the right of reproduction. Should this prove impossible, or if no other publication option is available, authors have the option of including an author addendum in their contract to retain their right to put their work online by depositing it into a repository. Several types of amendments can be found online.

For Austrian agreements, you can, for instance, use a template for such an amendment that is oriented on the amendment suggested by the Leibniz Open Access Working Group.

For English agreements, there is a handy online tool, i.e. the “Scholar’s Copyright Addendum Engine“. Here, you have the choice of three different versions (Access-Reuse, Immediate Access or Delayed Access), and you can fill out the addendum online.

You can find some more detailed information on the legal framework of authors’ contracts at open-access.net.

Open Content Licenses

Additionally, as the author and copyright owner of a publication or work, you have the option of permitting others to use it, i.e. to copy, distribute, broadcast, disseminate and process it via a Creative Commons or similar Open Content license. In such case, your copyright will of course remain vested in yourself, and you are able to define the conditions for any other use of your work by choosing a specific license. You can find some more detailed information on licensing at e.g. http://www.creativecommons.at or at http://creativecommons.org/licenses/?lang=de.


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