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Open Access in General
What is Open Access?
The traditional publishing system, based on printed scientific journals has benefited from the development of the internet by increasing subscription costs, in particular by additional costs for online access to the same titles. A study on the development of scientific publications in Europe shows that libraries are confronted with an annual price increase of 6 to 8 % since 2000. In order to fight against this cost explosion, the academic community has developed an alternative: Open Access (OA). After the beginnings in the 1990s, the open access principles were finally set out in the Budapest Declaration. Open Access enables researchers to publish their articles directly in open access journals, such as those listed in the Directory of Open Access Journal (DOAJ) (=Golden Road) or to archive their articles after conventional publication on an institutional repository (e. g. in Fribourg on FOLIA) (=Green Road). The research community gets free access to scientific publications (research papers, preprints, postprints) from any computer anywhere in the world.
What is the position of the University of Fribourg towards Open Access?
The University of Fribourg supports the Open Access movement. It urges all researchers to archive all publications in full text on FOLIA. It thus complies with the Berlin Declaration signed in 2008 and implements the Open Access recommendations of the Swiss National Science Foundation and the Swiss Academy of Humanities and Social Sciences.
Publish in Open Access at the University of Fribourg
What is the procedure for an article written by multiple authors?
If there is a publishing contract, it must first be verified if a deposit on an Open Access repository is permitted. If this is the case, the consent of all authors is necessary for archiving on FOLIA. It is possible that the authors appointed one person as their representative. In this case, this person is entitled to dispose of the rights on the common work (Art. 7 para. 2 CopA).
How can I publish my PhD thesis in Open Access?
The University of Fribourg supports and facilitates the electronic publication of PhD theses. Generally, the faculties are responsible for the electronic publication of dissertations and provide the necessary information. However, if parts of the dissertation have been published elsewhere, the conditions of the publishing contract or the applicable legal provisions must be observed and the formal requirements of the journal or publisher must be taken into account. Thus it may be appropriate to publish only certain parts of the dissertation in Open Access. Of course, the doctoral regulations of the faculties must be taken into account.
Is it possible to archive an already published article on the Open Access Repository FOLIA?
If a copyright agreement with the Journal has been concluded, e. g. in the form of a written publishing contract, the conditions must be complied with. If this is not the case, the provisions of the Swiss Code of obligations relating to the publishing contract shall apply. Art. 382 para. 3 CO: "Contributions to collections or anthologies and relatively lengthy magazine articles must not be published elsewhere by the originator within three months of the appearance in print of such contribution or article." Folglich dürfen Autoren von wissenschaftlicher Artikel wie Sammelbandbeiträge, die ein Thema vertieft behandeln, drei Monate nach der Veröffentlichung auf einen anderen Server hochladen. Dies gilt für die Autorenversion (akzeptiertes Manuskript). Hence authors of scholarly articles such as in depth contributions to collective works are allowed to upload their work on another server three months after publication. This applies to the author’s version (accepted manuscript). According to the the legal opinions by Reto Hilty and Matthias Seeman, the published version (publisher’s PDF) may also be used, but without the publisher’s logo which is protected by trademark rights. Apart from that, there is no case on the format of the publication.
What form does a publishing contract take?
The conclusion of a publishing contract is not bound to a certain form (Art. 380 et seq. CO). From a legal point of view a contract by e-mail or the sending of a manuscript by the author with the request to the publisher to publish it is already a publishing contract, if the publisher publishes the text or at least agrees to do so. The publishing contract certainly requires the agreement of both parties. However, it does not necessarily have to be put down in writing. In practice, legally binding publishing contracts are usually without any written agreement. Before entering a publishing contract, researches should be aware of their rights and obligations.
What are the possibilities to enforce Open Access publication against the publisher?
If you publish your article in a subscription based journal, but still want to reserve the rights for archiving on an Open Access server, it is the simplest way to leave only the simple rights of use to the editor. You can reserve the necessary rights for later Open Access archiving by
- Cancelling restrictive sections (e.g. „cession of all rights“) clearly before signing the contract. It is recommended to notify the editor about the cancellation.
- Adding an amendment signed contract. The most known amendment is the SPARC Author's Addendum. Thanks to the Copyright Addendum Engine provided by Science Commons and SPARC authors can set up automatically an addendum with following variants: Access-Reuse, Delayed Access, and Immediate Access. Another addendum is proposed by the MIT Libraries.
See here an example that must not be absolutely integrated in the contract but can be signed as an amndement (if not explicitly prohibited by the publishing contract):
Addendum to the publishing contract:
This addendum completes the publishing contract entered into by the contracting parties and shall take precedence over any contrary provisions referred to therein. Six months (three years in the case of books) after publication the author is allowed to deposit his work on an internal network of an educational and research institution, on institutional repositories, or on his own homepage or to authorize third party to do so. If the publisher transfers the rights of use to third party, he commits to meet the commitments stated in this addendum.
To validate this addendum, it must be accepted also by the editor. The simple fact of publishing a work is not enough to deduce an acceptance of the addendum if the publisher has not accepted it explicitly. The onus of proof of the acceptance by the editor lies on the author (Art. 8 CC).
If the publishing contract allows the author to publish his work on his personal website, may the Open Access repository of the institution where the author is employed be equated to a personal website?
Publishing contracts and agreements may entitle the author to publish his work on his personal website. Such a provision is part of the freedom of contract and therefore legal. However, if the agreement expressly mentions the publication on the author‘s website, the employing university‘s document repository is not included. Such an interpretation would go to far. But the author or the repository operator is free set a hyperlink that refers to the author‘s personal website and the work accessible there.
May I archive a contribution to a collective work?
If the publisher declines the researcher‘s request for archiving on an Open Access repository, there is obviously a disagreement between the parties, or to put it in another way: there is no agreement on this issue. In absence of any other agreement to the issue, the general legal provisions shall apply, in this case Art. 383 para. 3 CO. The researcher may therefore archive his work on an Open Access repository three months after publication.
Which law applies at international level, e.g. in the case of a foreign publisher?
Within the framework of the Federal Code on Private International Law (CPIL) and the Lugano Convention, authors and publishers may conclude an agreement on the competent courts and applicable law. In absence of such an agreement, it must first be clarified, if Swiss courts have jurisdiction, which is particularly the case if the defendant author is domiciled in Switzerland. Consequently, the Swiss court determines the applicable law according to the CPIL. In this case, a distinction must be made between contractual (see publishing contract) and copyright issues. In matters of publishing contract issues, the law of the country in which the publishing house is established generally applies (Art 117 para. 2 IPRG). Copyright issues are regulated by the law of the country whose protection is claimed (Art. 110 para. 1 IPRG). In other words, if the withdraw of a publication from a Swiss repository is claimed, Swiss law applies. If the repository is located in Germany, it is German law.
A foreign publisher asks an author domiciled in Switzerland to delete his publications on an Open Access repository. Which law does apply in this case?
The Swiss courts have jurisdiction (Art. 2 para. 1 Lugano Convention, CPIL; IPRG). In general there‘s no contract between the repository operator and the publisher. In consequence, the latter may sue for copyright infringement. Therefore the law of the country applies whose protection is claimed (Art. 110 para. 1 IPRG)), in principle Swiss law. In this case, internal use and reproduction for archival purposes is lawful (Art. 19 para. 1 & 3; Art. 24 para 1bis CopA).