Legal issues
Publishing is linked to various legal issues. The focus is often on questions of data protection, image rights or copyright, but other areas such as patent law, labor/employment law, competition law or contract law can also play a role.
The University's Legal Services Office and Data Protection Office can provide you with official legal advice.
This website can only provide general information and advice on selected legal topics that are relevant in the field of publication.
Secondary publication
In the case of secondary publications, rights of use have already been assigned to third parties. If these are simple rights of use, as is usually the case with open access primary publications, there is nothing to prevent secondary publication(free licenses).
However, if you as the author have already assigned exclusive rights, publication in KOBRA requires the permission of the rights holder. There are various options here
- Publishing agreements and individual authorizations: If there is an agreement between the rights holder (publisher) and the author (you) regarding "self-archiving", the secondary publication can be made under the agreed conditions. This is stipulated either directly in the publishing contract or in an explicit authorization. Subsequent authorizations are particularly common in the area of monographs and anthologies, as there are often no publishing policies in place.
- Publisher's policies: Publisher's policies are generally formulated conditions for secondary publication or further use by authors and are particularly common for journals and publications by major international publishers. The conditions defined here vary depending on the publisher with regard to various parameters such as embargo and permitted version. The Sherpa Romeo database can be used to search for such policies.
- Open access rights from license agreements: Alternatively, rights for authors can be co-negotiated by third parties, in Germany in particular in the context of national or alliance licenses, in which open access components have been negotiated since 2009 and 2011 respectively.
- Rights enshrined in law ("secondary publication rights"): A further legal basis lies outside the direct conclusion of contracts in copyright law itself. Section 38 UrhG defines the rights of authors of scientific and non-scientific articles in collections or newspapers in paragraphs 1 - 3. Paragraph 4 sets out criteria for the secondary publication of scientific journal articles from research at least half of which is publicly funded; in this case, in contrast to paragraphs 1 - 3, secondary publication cannot be contractually excluded. In view of the narrow scope of application and open legal questions, the provision leads to uncertainty in practice and to different assessments of its applicability.
Important: In the case of co-authorship, the consent of all authors is always required for a secondary publication, unless a free license has been granted.
The KOBRA team will be happy to check for you whether and, if so, under what conditions a secondary publication may be made. The team can also handle publisher inquiries in the event of an unclear legal situation.
Data publication
Whether research data may be published and who may decide on this depends on the persons involved and the legal areas affected.
Check the following aspects (according to: Schleußinger et al 2019):
- Is the research data a database with a substantial investment?
→ If necessary, obtain permission from the employer or other possible rights holders - Do third parties have rights to the data? e.g. because third-party data was included, the data was collected by third parties or within a cooperation?
→ If possible, reach a written agreement with the third parties involved regarding the publication of the data - Did the data arise during your employment?
→ Obtain the employer's consent (exception: professors) - Is there any data that could be subject to confidentiality, e.g. in the case of cooperation with companies?
→ Clarify details, do not publish if necessary - Does your data relate to individuals?
→ anonymize - Is your data completely anonymous or can it be anonymized? If no:
→ The consent of the data subject must be obtained
Further information:
- Publish research data? on forschungsdaten.info
- FAQ on forschungsdaten.uni-kassel.de
- Kreutzer, T., & Lahmann, H. (2021). Legal issues in Open Science: A guide. https://doi.org/10.15460/HUP.211
Image rights
The subject of image rights is complex and requires particularly careful examination. Particularly relevant here are
- Copyright (You may not use third-party works without being asked. Unless there is a legal exception).
- Personal rights | Right to one's own image (You may not use images of people without being asked. Unless there is a legal exception).
- Third-party rights: works of art, architecture, design, trademarks, property, etc.
One legal exception (limitation) to copyright is, for example, the right to quote . It allows images that were published with the consent of the author to be used free of charge in a separate, independently written work without the permission of the author / rights holder. The right to quote is subject to strict conditions; the following questions offer an initial approach:
- Is it an image made publicly available with the consent of the copyright holder?
- Is there a permissible purpose for the quotation, such as a scientific discussion?
- Is the citation appropriate and reasonable in scope?
- Is there a clear indication of the source that clearly identifies the image and can be attributed to it?
- Has the image been incorporated unchanged?
There isno copyright protection if the necessary level of creativity has not been reached, if the work is an official work or if the copyright has expired (70 years after the death of the author).
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Always check when using images and graphics that you did not create yourself:
- Can the origin be traced beyond doubt for all image data?
- Is the author of each image file known and has the author's consent for the respective publication been obtained in writing?
- Is the author and, if applicable, the source of the image named in the photo credits as agreed?
- Can the time of retrieval, e.g. of an image from a database, be proven by documentation or otherwise?
- Have the persons depicted issued a written declaration of consent for the production and publication? Or were they informed, for example at major events, that photos were being taken? Has an alternative area been created? In the case of minors, has a written declaration of consent been provided by their legal guardians?
- Are the respective declarations of consent valid for an unlimited period or is an end date to be observed?
- Are declarations of consent or licenses of use limited to certain media or a narrowly defined publication purpose?
Beware of fines: Only use images for which you clearly own all relevant image rights. Otherwise, it can be very expensive, as specialized law firms search the web with automatic image recognition software and have made it a business model to issue very expensive warnings for legal infringements. If in doubt, seek legal advice.
This guide to image rights in art historical practice contains helpful information.
License selection
Publication is always associated with the granting of certain rights - traditionally the transfer of exclusive rights of use to a publisher. If, on the other hand, you would like to publish a work Open Access, this is usually done by using Creative Commons licenses. This allows you as the author to easily determine how others may use your work.
The Creative Commons licenses are made up of four building blocks for defining the terms of use:
The combinations of license conditions result in a total of six different possible licenses.
Attribution (BY), i.e. the condition of appropriate copyright and rights information, is a mandatory component of all licenses. Further restrictions can be made via additional modules. In the spirit of Open Access, we recommend that you use the CC-BY license as a basis for defining only the additional restrictions that you require and that you are willing to enforce. It is important that you are aware of the - possibly unintended - effects of the individual components beforehand:
Meaning: Rights information must be provided in accordance with the author's specifications. Changes must be indicated.
Impact: Attribution is mandatory. An exception is the CC0 license, which can be used to waive the attribution requirement if, for example, no copyright protection is possible or given from the outset, or if you want to release the work for quasi-commercial use.
Meaning: Adaptations are permitted, but the work must be licensed under the same license as the original work.
Impact and problems: The license is inherited through the SA element. This is helpful for maintaining the Open Access chain, but can lead to problems in practice if parts of the work - such as illustrations - are to be published in a new context and this parent work appears under a different license or no free license at all, or if content with incompatible licenses is to be combined in a work.
Meaning: Changes or a remix of the work may not be distributed or published.
Impact and problem: This element prohibits, for example, the distribution of a translation, which may be intentional in certain contexts, but may be an unnecessary restriction in others, for example by prohibiting the use of a text or image excerpt.
Meaning: The work may not be used for commercial purposes.
Impact and problems: On the one hand, the NC element excludes many common and actually unproblematic uses: not only private, non-governmental universities and scientific institutions operate commercially; in the field of education, non-profit organizations, associations, medium-sized companies, freelancers, self-employed persons and other actors are also clearly in this segment and are excluded from use. Use via commercial database providers and aggregators, which can lead to dissemination and better findability, are also excluded.
In addition, "commercial use" is legally unclear: what about a lecture given at a paid scientific conference or later uploaded to a commercial video platform? In case of doubt, use will be refrained from for safety's sake because the non-commercial purpose is too ambiguous, not certain or the expertise for a corresponding assessment is not available.
=> The details of the individual licenses can be found at https://creativecommons.org/licenses/
In practice, the CC license for journals is often predefined - here you can only agree to it. In the case of books, publishers usually leave the choice up to the authors.
If you make a first publication (e.g. your dissertation, a working paper, preprint or poster) via the publication server KOBRA, you can select the license as part of the publication process. In the case of cumulative dissertations, however, a heterogeneity of rights of use granted, granted and received back often stands in the way of granting an overarching license.
Free licenses (i.e. licenses that are as unrestrictive as possible) also leave the greatest scope for subsequent use in the case of data publications. CC0 1.0 and CC-BY 4.0 are recommended. The recommendation specifically for data publication with a preceding analysis of various common license models can be found in Brettschneider et al, 2021: Offene Lizenzen für Forschungsdaten: Legal evaluation and practical suitability of common license models.
Incidentally, free licensing is also possible if materials that are not freely licensed are cited, as long as the licensing is limited to your own publication. This means that the impression must not be inadvertently created that the quoted content is also freely licensed. This can be prevented by adding the note "All rights reserved" to quoted or otherwise used copyrighted content. It is also important to state in the legal notice that the selected license only applies to elements that are not otherwise identified.