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Copyright in the field of Open Access
Dagmar Schobert, Kathleen Forth, Michaela Voigt | [email protected]
University Library of TU Berlin | Workshop at Center for Technology and Society on February 26th 2015
If not indicated otherwise content is licensed under CC BY 4.0
Creative Commons Attribution 4.0 International | https://creativecommons.org/licenses/by/4.0
GERMAN COPYRIGHT: CORE
PRINCIPLES
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Copyright protection
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• Author = creator of a work
• Supervisors of theses, student papers etc. are not considered to be creators
• Only natural persons (creators) can claim full copyright
• vs. rights holder: natural or legal person
WHO
• Protection of original works
• Ideas, concepts etc. are not protectable
• Work = intellectually created by a natural person (§ 2 UrhG) a.o.t
• Literary works
• Musical works
• Photographic works
• Cinematographic works
WHAT
• Protected by law
• No further registration necessary (in contrast to patents, trademarks, logos etc.)
• Copyright term: 70 years after the author‘s deathHOW
Authors‘ Rights
• Right of first publication
• Recognition of authorship
• Right to object to derogatory treatment
Moral rights
(§§ 12 - 14)
• Reproduction
• Distribution
• Making available to the public
• Performance, presentation
• …
Exploitationrights
(§§ 15 - 24)
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Transfer of rights
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• Rights of use can be transfered (§ 31 UrhG)
• … for each typ of use individually
• … limited in time (e.g. timespan of 5 years)
• … geographically limited (e.g. distribution within Europe)
• … as exclusive or non-exclusive right
Exploitation rights
• Rights holder can use the work exclusively
• Even creator has to obtain rights for further use(s)Exclusive
• Rights holder can use the work
• Creator can transfer non-exclusive rights to different (natural or legal) persons
Non-exclusive
Publication Agreements
Creator grants (non-exclusive or exclusive) rights to (certain) use(s)
Freedom of contract: contract partners negotiate terms
NB: inalienable right to self-archiving (cf. § 38 (4) UrhG) Read your publication agreement (often “Copyright Transfer Agreement“)
and modify it if necessary!
Cross out sections where transfer of exclusive rights is demanded
Retain rights with help of Author Addendum (cf. SPARC Author's
Addendum)
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Copyright exception: Quotation (§ 51 UrhG)
Purpose of quotation (“justified to that extent by the particular purpose“)
No permission by rights holder or fee required
Images etc. can also be quoted
Conditions:
Own discussion and/or analysis of quoted work not to merely illustrate!
Proper citation (attribution of creator and source)
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It shall be permissible to reproduce, distribute and communicate to the public a published
work for the purpose of quotation so far as such exploitation is justified to that extent by the
particular purpose. This shall be permissible in particular where
1. subsequent to publication individual works are included in an independent scientific
work for the purpose of explaining the contents,
2. subsequent to publication passages from a work are quoted in an independent work of
language,
3. individual passages from a released musical work are quoted in an independent
musical work.(Translated by Ute Reusch / juris GmBH)
Obtain permission
Want to use somebody else‘s work? Obtain permission to be on the safe side!
Informally via e-mail: give information on title, creator and source & on type and
purpose of use (e.g. indicate a planned online publication)
Could be phrased as follows:
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I hereby wish to obtain permission for work… by creator
… from source… to be used in a publication currently
prepared. The work will be published in the series … by
the publishing house…, it will be published in print and
online at the same time.
OPEN ACCESS
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Benefits of Open Access
Increased visibility and citation advantage
Free access to publicly financed research results
Authors retain exploitation rights
Good findability by search engines and other indexing services
Promotion of international and interdisciplinary cooperation
Promotion of research efficiency by rapid discussion of research results
Improved supply of information and response to serials crisis
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Roads to Open Access
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GOLDEN ROAD: Open Access publisher
GREEN ROAD: Self-archiving on repository
Open Access logo, converted into svg, designed by
PLoS. This version with white background.
Licensed under Creative Commons Public Domain
Dedication
Roads to Open Access: Gold OA
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GOLDEN ROAD: Open Access publisher
GREEN ROAD: Self-archiving on repository
Peer reviewed version
available, immediatedly
and worldwide
Transfer of rights to
public
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Creative Commons-
License: Attribution
3.0 Germany
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This publication – except for quotations – is licensed under the CC license CC BY.
License agreement: Creative Commons Attribution 3.0 Germany
http://creativecommons.org/licenses/by/3.0/
Roads to Open Access: Green OA
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GOLDEN ROAD: Open Access publisher
GREEN ROAD: Self-archiving on repository
In addition to traditional
Closed Access publication
Usually no transfer of rights
to public
Dependant on rights
holder‘s policy:
(embargoed) self-archiving
of preprint, postprint or
publisher‘s PDF
Self-archiving
• Many publishers allow self-archiving
• Conditions can differ a lot Preprint, postprint or publisher‘sPDF? Personal website, institutional repository, disciplinaryrepository? Embargo of 6, 12 oder 24 month? What information on the publisher has to be provided?
Publishers‘ policies
• Database on journal publishers‘ policies on self-archiving
• Policies for monographic works have to be checked separatelySHERPA/RoMEO
• “(…) scientific contribution which is the result of of a research activity publicly funded by at least fifty percent and which has appeared in a collection which is published periodically at least twice per year (…)“ (translated by Ute Reusch / juris GmBH)
• Right can not be revoked as part of a publishing agreement, postprint only, 12 month embargo
§ 38 (4) German Copyright Law:
Right to self-archive
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Self-archiving – Please don‘t hesitate to ask!
• Many publishers allow self-archiving
• Conditions can differ a lot Preprint, postprint or publisher‘sPDF? Personal website, institutional repository, disciplinaryrepository? Embargo of 6, 12 oder 24 month? What information on the publisher / publisher‘s website has to be provided?
Publishers‘ policies
• Database on journal publishers‘ policies on self-archiving
• Policies for monographic works have to be checked separatelySHERPA/RoMEO
• “(…) scientific contribution which is the result of of a research activity publicly funded by at least fifty percent and which has appeared in a collection which is published periodically at least twice per year (…)“ (translated by Ute Reusch / juris GmBH)
• Right can not be revoked as part of a publishing agreement, postprint only, 12 month embargo
§ 38 (4) German Copyright Law:
Right to self-archive
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It‘s often difficult to decide whether the legal right to self-archiving
applies or what a publisher‘s policy on self-archiving is exactly.
We are happy to help. Please contact us:
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Authors may self-archive the author’s accepted
manuscript of their articles on their own websites.
Authors may also deposit this version of the article
in any repository, provided it is only made publicly
available 12 months after official publication or
later. He/ she may not use the publisher's
version (the final article), which is posted on
SpringerLink and other Springer websites, for the
purpose of self-archiving or deposit. Furthermore,
the author may only post his/her version provided
acknowledgement is given to the original source of
publication and a link is inserted to the published
article on Springer's website. The link must be
provided by inserting the DOI number of the
article in the following sentence: “The final
publication is available at Springer via
http://dx.doi.org/[insert DOI]”
CREATIVE COMMONS
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CC in a nutshell
Creative Commons founded in 2001 in USA, non-profit organization
Version 1.0 of licenses released in 2002
Licenses were developed in the US – but intended for international use
License moduls evolved over the years, latest version is 4.0 of 2013
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Why CC licenses?
To use creative potential: facilitate use and distribution of works
To apply copyright in the digital world
(c) All rights reserved (cc) Some rights reserved
Copyright is not abolished but instead build upon, CC licenses are a
tool to expand the default values of copyright
Rights and duties for authors and users
Licensor cannot revoke these freedoms as long as you follow the
license terms
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Figure by Timothy Vollmer (cc) 2013, licensed
under CC BY 4.0 International
Modular design
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4 license modules 6 possible types of licenses
BY: Attribution
SA: Share-alike
NC: Non-commercial
ND: No derivatives
License elements
Legal code
Human readable version (commons
deed)
Machine readable version
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Fig. Three “Layers” Of Creative
Commons Licenses by Creative
Commons, licensed under CC
BY 3.0 Unported
Legal code
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Human readable version (commons deed)
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Machine readable version
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License terms
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Alwaysallowed
Reproduceand
distribute
Performpublicly
Alwaysmandatory
Giveattribution
Link tosource
Link tolicense
Possiblyfurther
restrictions
Example 1: commercial
use
Example 2: derivatives
License terms
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Alwaysallowed
Reproduceand
distribute
Performpublicly
Alwaysmandatory
Giveattribution
Link tosource
Link tolicense
Possiblyfurther
restrictions
Example 1: commercial
use
Example 2: Derivatives
With CC licenses you transfer more rights to the public
than the German copyright law would grant by default.
Recommendations of the University Library
• Retain rights for own further uses.
• Publish with open access publishers, or at least with publishinghouses that allow self-archiving.
• Keep postprints and and publishing agreements.
Avoid transferingexclusive rightsto publishers!
• Give proper attribution to third party works. Mark any adaptationyou made.
• Obtain permission to use to be on the safe side.
• Comply with all license terms when using Creative Commons-licensed works by third parties.
Handle thirdparty worksdiligently!
• The University Press recommends using Creative Commonslicense: Attribution 3.0 Germany.
License yourworks with a freelicense whenever
possible!
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Why not…?
NC – Non-commercial
Notion „non-commercial“ not clearly
defined
Prohibition of actuallydesired uses
SA – Share-alike
Threat of licenseincompatibility for
further uses
Princible of “copyleft”applies to “adaptations”only – partly difficult todistinguish: what is an
adaptation?
ND – NoDerivatives
Partly difficult todistinguish: what is an
adaptation orderivative?
Not compabtible withdemand to reuse ofopen access works
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NC – Non-commercial
Legal code does not define “commercial” clearly
So far there is no clear (German) court ruling to interprete term “non-commercial”
When in doubt it‘s better to abstain from using a NC-licensed work
Recommendation: avoid NC modul when licensing own works
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You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended
for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for
other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or
directed toward commercial advantage or private monetary compensation, provided there is no payment of any
monetary compensation in connection with the exchange of copyrighted works.
(see 4. b of CC BY NC 3.0 legal code)
A commercial use is one primarily intended for commercial advantage or monetary compensation.
(see tool tip for “commercial purpose“ in CC BY NC 3.0 commons deed)
SA – Share-alike
SA module applies to adaptations “only”
Goal: extend pool of freely licensed works
Most commonly known user: Wikipedia
NB: what does “adaptation” mean?
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You may Distribute or Publicly Perform an Adaptation only under the terms of:
(i) this License;
(ii) a later version of this License with the same License Elements as this License;
(iii) a Creative Commons jurisdiction license (either this or a later license version) that contains the same License
Elements as this License (e.g., Attribution-ShareAlike 3.0 US));
(iv) a Creative Commons Compatible License.
(see 4. b of CC BY SA 3.0 legal code)
ND – No Derivatives
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“Adaptation” means a work based upon the Work, or upon the Work and other pre-existing works, such as a
translation, adaptation, derivative work, arrangement of music or other alterations of a literary or artistic work, or
phonogram or performance and includes cinematographic adaptations or any other form in which the Work may
be recast, transformed, or adapted including in any form recognizably derived from the original, except that a
work that constitutes a Collection will not be considered an Adaptation for the purpose of this License. For the
avoidance of doubt, where the Work is a musical work, performance or phonogram, the synchronization of the
Work in timed-relation with a moving image (“synching”) will be considered an Adaptation for the purpose of this
License.
(see 1. a of CC BY-ND 3.0 legal code)
What does adaptation mean?
Strictly technical changes and
copies?
No, see CC-Lizenztextlesung (Video in German, 35 min 00
sec)
Use a CC-licensed song to
add music to a video?
Yes, see CC-Lizenztextlesung (Video in German, 36 min
50 sec)
Inclusion in collection? No, see paragraph 1. a CC BY 3.0 legal code
Trimming a photo?
Colorize a photo?
maybe: trimming a photo is an adaptation if it changes the
photo‘s message (cf. court ruling OLG Köln, Urteil vom
31.10.2014, Az. 6 U 60/14)
Why not…?
NC – Non-commercial
Notion „non-commercial“ not clearly defined
Prohibition of actuallydesired uses
SA – Share-alike
Threat of licenseincompatibility for
further uses
Princible of “copyleft”applies to “adaptions”only – partly difficult todistinguish: what is an
adaptation?
ND – NoDerivatives
Partly difficult todistinguish: what is an
adaptation orderivative?
Not compabtible withdemand to reuse ofopen access works
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Not compatible with demand to reuse open
access works.
Further reading
Information provided by the University Press: http://verlag.tu-berlin.de/
TU Berlin, Referat V D: Leitfaden Urheberrecht der Technischen Universität Berlin (13.11.2014)
Creative Commons:
Frequently Asked Questions
Best practices for attribution instruction incl. Examples for how to mark CC-licensed works
License Versions information on backround, history and differences between the different
versions of CC licenses
Klimpel, Paul: Freies Wissen dank Creative-Commons-Lizenzen. Folgen, Risiken und
Nebenwirkungen der Bedingung »nicht-kommerziell - NC« (2012)
Kreutzer, Till: Open-Content-Lizenzen. Ein Leitfaden für die Praxis (2011)
pb21.de: CC-Lizenztextlesung – Juristen und Pädagogen erklären die Creative Commons
Lizenzen (2014) legal experts Till Kreutzer and John H. Weitzmann comment on and explaiin
legal code of CC licenses (Video in German, approx. 2 h 10 min)
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Further reading (2)
SHERPA/RoMEO Database on journal publishers‘ policies on self-archiving
Directory of Open Access Journals (DOAJ)
February 2015: more than 10000 scholarly OA journals documented
Directory of Open Access Books (DOAB)
February 2015: more than 2700 OA books by approx. 90 publishers documented
Allows search for publishers that publish OA books
Search for Creative Commons-licensed content
Wikimedia Commons: search for freely licensed images, audio and video material
Flickr: allows filtering for CC licensed content (see Advanced search)
Google Bilder: after submitting a query select “search tools” and filter for “usage rights”
open-access.net Information platform about Open Access
a.o.t. information on legal issues and business models
see FAQ for authors
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Contact
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Telefon (030) 314-
Dagmar Schobert 76127
Michaela Voigt 76130
Kathleen Forth 76131
