Self-Archiving

1. Am I allowed to publish my article on my institution’s document server, a subject-based document server or my homepage if the article has already been published in a journal?

f an agreement on copyright was concluded when the article was published in the academic journal, such as a written publishing contract, the provisions it contains will apply.

Otherwise, the provisions of publishing contract law contained in the Swiss Code of Obligations will apply. Art. 382 Para. 3 of the Code lays down that: “Contributions to collective volumes or larger contributions to journals may not be republished by the publishee before expiry of three months after the complete publication of the contribution.” Accordingly the author of an academic paper, such as an article in a journal, that deals with a topic in depth can publish it in a repository or other server three months after it has been published in full. The author’s version (accepted manuscript) can certainly be used for this purpose. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar. However, there is no established judicial practice on this question of the format.

It should be noted that in international constellations, such as where the document server is located abroad, a foreign legal system may apply.

2. Am I allowed to publish contributions on my institution’s document server, a subject-based document server or my homepage if they have been published in a collective work (e.g. a Festschrift)?

If an agreement on copyright was concluded when the article was published in the collective work, such as a written publishing contract, the provisions it contains will apply.

Otherwise, the provisions of publishing contract law contained in the Swiss Code of Obligations will apply. Art. 382 Para. 3 of the Code lays down that: “Contributions to collective volumes or larger contributions to journals may not be republished by the publishee before expiry of three months after the complete publication of the contribution.” Accordingly the author of an academic paper, such as a contribution to a book, provided that it deals with a topic in depth, can publish it in a repository or other server three months after it has been published in full. The author’s version (accepted manuscript) can certainly be used for this purpose. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar. However, there is no established judicial practice on this question of the format.

It should be noted that in international constellations, such as where the document server is located abroad, a foreign legal system may apply.

3. Am I allowed to publish contributions on my institution’s document server, a subject-based document server or my homepage if they have been published in a newspaper?

If an agreement on copyright was concluded when the article was published in the collective work, such as a written publishing contract, the provisions it contains will apply.

Otherwise, the provisions of publishing contract law contained in the Swiss Code of Obligations will apply. Art. 382 Para. 3 of the Code lays down that: “Contributions to collective volumes or larger contributions to journals may not be republished by the publishee before expiry of three months after the complete publication of the contribution.” Accordingly the author of an academic paper, such as a contribution to a book, provided that it deals with a topic in depth, can publish it in a repository or other server three months after it has been published in full. The author’s version (accepted manuscript) can certainly be used for this purpose. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar. However, there is no established judicial practice on this question of the format.

It should be noted that in international constellations, such as where the document server is located abroad, a foreign legal system may apply.

4. What legal aspects should be taken into account for the open-access own-archiving of monographs already published?

If an agreement on copyright was concluded when the article was published in the collective work, such as a written publishing contract, the provisions it contains will apply.

Otherwise, the provisions of publishing contract law contained in the Swiss Code of Obligations will apply. Art. 382 Para. 3 of the Code lays down that: “Contributions to collective volumes or larger contributions to journals may not be republished by the publishee before expiry of three months after the complete publication of the contribution.” Accordingly the author of an academic paper, such as a contribution to a book, provided that it deals with a topic in depth, can publish it in a repository or other server three months after it has been published in full. The author’s version (accepted manuscript) can certainly be used for this purpose. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar. However, there is no established judicial practice on this question of the format.

It should be noted that in international constellations, such as where the document server is located abroad, a foreign legal system may apply.

5. How can I publish my dissertation under open access?

Most Swiss universities allow the electronic publication of dissertations. It is usually the university libraries that are responsible for digital publication and they will give you the information you need. As the author of the dissertation, you are permitted to place it under an  open licence.

If, however, the dissertation contains parts that have already been or will be published elsewhere, the provisions of the corresponding publishing contract or, as the case may be, the non-mandatory statutory provisions must be complied with, and account taken of the information about submitting manuscripts to the journal or the publisher. It may therefore be appropriate to make only parts of the dissertation accessible on a repository and to refrain from disclosing other parts. The doctorate regulations of the university or faculty will also apply.

6. In the case of an article with a number of authors, is it sufficient if one of them consents to publication on a document server?

If a publishing contract has been concluded, it must first be determined whether such a deposit of the work on a repository is permitted. If it is, the consent of all the authors must be obtained for the publication on a document server in the same way as for the assignment of the rights to the institution in question. However, it is possible that the authors have appointed one of their numbers to speak for them all. In such a case, this person is entitled to assign the rights (Art. 7 Para. 2 of the Copyright Act).

7. Can works offered by the publisher on the Internet without restrictions be deposited publicly in a repository?

No. Permission to make these works accessible cannot be derived from such conduct on the part of the publisher (Art. 10 Para. 2 c, Copyright Act).

8. If a work belongs to the publisher in copyright terms, can the author deposit it publicly in a slightly modified form in a repository?

No. In particular the use of the work in a different layout, e.g. omitting the publisher’s logo and page numbers, also requires the publisher’s consent.

9. An article in a journal or a collective volume contains images the rights to which are held not by the publisher but instead by a collecting society such as Pro Litteris. What must the author do if he wishes to publish the article in a repository?

In addition to the aspects described in questions 1 and 2, it must be determined whether the collecting society has authorised the publisher to grant the rights to the images for further publications, and whether the publisher has granted these rights to the author. As a rule, this is not the case, and so the author must frequently obtain permission from the collecting society, which involves costs. For this reason, it may be appropriate to publish the text in a repository without images.

10. Is the author entitled to deposit his works in a repository in blocked form, making them accessible to outsiders by replying to each request for a copy and sending the work individually?

The “request a copy” function differs from the normal deposit in particular by the fact that the work is not automatically made available to the public.

If no contractual agreements have been concluded between the author and the publisher, such that the statutory provisions apply (Arts. 380 et seq., Code of Obligations, see Question 16), the distinction between “request a copy” and normal deposit is of no practical importance. In other words, the statutory provisions also apply to the “request a copy” function.

If a contractual agreement has been concluded between the author and the publisher, the provisions it contains will apply. If the author has granted the publisher the reproduction and distribution rights, or has granted an exclusive licence, he is as a matter of principle no longer entitled to send a copy via the “request a copy” function. However, the “request a copy” function – unlike normal deposit – is permitted and useful if the publishing contract only permits the distribution of the work to a limited circle of persons, which is the case in many publishing contracts. The “request a copy” function corresponds to distribution within such a limited circle.

Where the “request a copy” function is used, it is as a matter of principle more difficult to prove any breaches of copyright than with a normal deposit, in particular because an outsider cannot see whether any infringement of the rights has been committed by the author alone or also by the operator of the repository.