Legal Aspects

When publishing your articles or books in open access, many legal considerations arise. The most important ones concern copyright and the (re-)use of your own and third-party content.

The following information is for general reference only. The University Library cannot provide you with binding legal advice. All information refers to German copyright law.


Copyright law regulates the protection of intellectual property in material and non-material forms. It protects the work of authors and specifies how to deal with third-party interests in the use of their works. In Germany, copyright regulations are laid down in the Act on Copyright and Related Rights ("Gesetz über Urheberrecht und verwandte Schutzrechte", UrhG) and the Act on the Management of Copyright and Related Rights by Collecting Societies ("Gesetz über die Wahrnehmung von Urheberrechten und verwandten Schutzrechten durch Verwertungsgesellschaften", VGG).

Protected by German copyright law are "works in the literary, scientific and artistic domain" (Section 2 (1) UrhG), e.g. texts, lectures, computer programs, music, photographs, films or technical illustrations, but not mere ideas, facts or information. Copyright protection also applies beyond the death of the creator and expires 70 years after their death. Rights related to copyright (Sections 7087h UrhG) for artistic, scientific or commercial works that do not receive full copyright protection (such as simple scans or photographs, text editions and databases) generally expire much earlier.

While some aspects of copyright, such as the right of publication, the right to recognition of authorship and the right to prohibit the distortion of the work, are tied to the authors and are inalienable (so-called moral rights), creators can freely dispose of the exploitation rights granted by law. When publishing an academic work, for example, it is customary to transfer simple or exclusive rights of use to the publishing company.

Primary publication and open content licences

Traditional academic publishers often seek to obtain exclusive rights of use when publishing research work. This means that third parties are excluded from using the work in question beyond the statutory limitations (e.g. the right to quote or reproduction for private or scholarly use) and the authors themselves can no longer grant any further rights of use to their works (e.g. for translations or the publication of excerpts). At best, secondary publication is possible under the conditions of the publishing contract or the statutory secondary publication right.

When publishing in open access, however, all rights to the published work remain with the author. The publisher only receives simple, non-exclusive rights of use. By applying open content licenses, authors also transfer standardized rights to third parties for the subsequent use of their research work.

Advantages of using open content licenses

  • By applying an open content license, you can grant third parties standardized rights of use to your work, which may vary in scope and openness. The moral rights of the author are not affected by this licensing.
  • Typical open content licenses (e.g. Creative Commons) can be used worldwide and are valid for the entire duration of copyright protection.
  • Open access policies of research institutions and funding conditions of research sponsors today uniformly recommend publishing your research under a free open content licence (usually CC BY).

Creative Commons licences

Creative Commons licences are the most common licencing model for academic publications. The non-profit organization Creative Commons (CC) offers a set of standardized licence agreements that regulate the subsequent use of a work by third parties in a transparent and detailed manner. The following illustration shows the different licence models and explains the conditions under which works with these licences may be shared or edited:

Figure: based on Ute Blumentritt et al., Handreichung Urheberrecht und Datenschutz, in: Marcel Wrzesinski (ed.), Wissenschaftsgeleitetes Publizieren. Sechs Handreichungen mit Praxistipps und Perspektiven, Berlin 2023, DOI 10.5281/zenodo.8169418, CC BY 4.0 International (p. 24)

Secondary publication of closed access publications

Publishing contracts and self-archiving policies

If a publisher has been granted exclusive rights of use for an article or volume, secondary publication (e.g. on the author's website or in an institutional repository) is only permitted under strict legal conditions. If possible, authors or editors should therefore always insist on reserving the right to self-archiving or secondary publication when concluding publishing contracts. The Sherpa Romeo platform provides an overview of publishers' conditions for self-archiving of journal articles. For parts of monographs and edited volumes, the publishers' self-archiving policies may be consulted.

Secondary publication right for authors of scientific contributions

Irrespective of the terms of a publishing contract or policy, authors of scientific contributions are entitled to a secondary publication right for their works per Section 38 (4) UrhG. This applies if the work has appeared in a collection that is published periodically at least twice a year (i.e. a scientific journal) and was created as part of a research activity at least half of which was financed by public funds. This type of research activity is deemed to apply, for example, in the context of project funding from public funds, but not in the context of regular work at a university financed by budget funds. In the above case, the manuscript version accepted by the publisher may be published online after twelve months after the first publication. The source of the original publication must always be cited.

Conditions for secondary publication

If you wish to make use of the statutory or contractual option for the secondary publication of an article or book chapter of which you are the author, certain conditions will usually apply. Important elements of rules or policies for self-archiving or secondary publication can be found below:

  • Version: Usually, publishing contracts or self-archiving policies differentiate between the submitted version (submitted manuscript version), the accepted version (revised manuscript version) and the published version (published version in the publisher's layout). Different conditions may apply to the individual versions, for example concerning embargo deadlines. Some publishers also use other differentiations between the versions of an article or book chapter.
  • Embargo: As a rule, self-archiving or secondary publication is only possible after the expiry of a period after the publication has appeared with the publisher. The statutory secondary publication right, for example, provides for an embargo of 12 months.
  • Place of secondary publication: Typical places for secondary publication allowed by a contract, a policy or the secondary publication right are the author's homepage or their institutional repository.
  • Licence: The archived version of an article or book chapter is also subject to copyright regulations. Only if the copyright holder, i.e. usually the publisher, expressly agrees to this an open content license can be granted for the secondary publication. Many publishers prefer licences that explicitly exclude commercial use (e.g. CC BY-NC or CC BY-NC-ND).
  • Further conditions: Usually, when self-archiving or republishing one's contribution, explicit reference must be made to the place of first publication (journal, edited volume, publisher). Often a link to the publisher's version is also required.
Further information
  • Bundesministerium für Bildung und Forschung, Urheberrecht in der Wissenschaft. Ein Überblick für Forschung, Lehre und Bibliotheken, Berlin 2023 (DOI 10.5281/zenodo.8284551)
  • Till Kreutzer/Henning Lahmann, Rechtsfragen bei Open Science. Ein Leitfaden, 2., überarb. und erw. Aufl., Hamburg 2021 (DOI 10.15460/HUP.211)
  • Veronika Fischer/Grischka Petri, Bildrechte in der kunsthistorischen Praxis – ein Leitfaden, 2., überarb. und erw. Aufl., Bonn 2022 (DOI 10.11588/artdok.00007769)
University of Freiburg