In the September issue of the Swiss journal for judges («Justice -
Justiz - Giustizia»), a practitioner expressed criticism regarding the
proportional distribution («Parteienproporz») of judges according
to party affiliation and related mandate taxes.
When current developments in such a forum are being discussed, their
relevance for the law is undisputed. At the same time, only a small group
of people can access these comments. The password-protected area is only
available to subscribers. Should they not be openly accessible? Are there
reasons to take action, so that scholarly publications can be made
accessible for everyone? In particular the adoption of the
Swiss National Strategy on Open Access
(OA) and the following
action plan («Aktionsplan»), approved in February 2018 by the plenary assembly of
Swissuniversities, puts this issue on the agenda in Switzerland. The
strategy and action plan place great emphasis on flexibility for the
universities, especially in the process of adapting the framework.
Nevertheless, many aspects still remain unclear. While there are many
factors, which play a role in the discussion, this paper will focus on
making an inventory of the legal regimes which govern the question of OA in
different jurisdictions. One of the said unresolved issues, related to the
relationship between researchers, their home institutions, publishers and
society, with a doctrinal focus on identifying and interpreting the rules
applicable to OA, is the subject of this publication: Can and should
university employees be obligated to provide Open Access to their
I. Current Situation
In the various academic disciplines, different OA approaches, models and
attitudes can be found.
While OA journals have gained a strong footing in the natural sciences in
conventional journal publishing is still dominating the market in the legal
This prominent position of publishers in the field of print and digital
journal subscriptions has led to increasing costs for libraries in recent
Only very few people are aware of the sums actually paid by the libraries.
Declining library budgets and the sheer increase in information volume,
mean that a significant portion of scholarly literature is no longer
accessible. Hence, the interest in OA is growing. Theoretically, and from
the perspective of a publishing scholar, two paths that can be taken.
Firstly, the publication in a journal, which provides content freely
accessible online - the «gold road».
Secondly, the «green road», which takes a publication that has
previously been published elsewhere and makes it available in an online
Another dimension is the institutionalization of the idea of OA. Recent
developments, such as the aforementioned action plan under the national OA
have made the topic appear political.
According to Vision 2024, the aim was to have 100 percent of the
publications from Swiss universities published OA by the year 2024.
Meanwhile, the University Council of the Swiss University Conference has
approved the action plan.
These institutionalization steps stand between the poles of national and
international copyright law on the one hand, and the idea of OA as global
scholarly communication on the other.
In practice, different forms of institutionalizing OA have been developed,
with specific features determined by their geographic perimeters. Some of
them, by practical relevance, will be presented in the following.
II. International Approaches
1. Harvard University
In 2008, the Faculty of Arts and Sciences at Harvard University unanimously
voted in favor of transferring the non-exclusive rights of its researchers'
writings, on all forms of non-commercial use, to the university.
Other institutions followed.
From the perspective of copyright, the mentioned model is nothing more than
a non-exclusive license.
The university will gain the rights to all works by their own employees.
Once the university has received the final works, they will be saved in the
accessible to anyone without registration. A not-for-profit and
non-derivative use by third parties is possible, but must conform to the
DASH conditions of use.
As a rule, the universities are trying to get written grant licenses.
Storage in the DASH repository, if stored as a first publication, thus
corresponds to a gold road publication in another medium.
Still, exemptions from this obligation to OA, known as «waivers»,
remain possible. Provisions are also made in respect to possible embargo
periods on the part of the repository.
But how can a person employed at the university as a researcher benefit
from the aforementioned exemption («opt out»)? To do so, they
must apply to the dean of the faculty - sometimes with the requirement of
giving reasons. Most of the time, the exemption is approved.
However, such requests are only made in about five percent of cases.
A second exception to the OA obligation is referred to as the «dark
deposition». Here, contractual provisions between the researcher
(author) and the publisher preclude the work from simultaneously being made
accessible in the repository. After the expiration of an approximately
six-month embargo, the «lift date» is reached and the publication
is made public for everyone.
Despite the continued success of this model, discussions about the
infringement on academic freedoms will continue. The researcher is no
longer able to decide where, when and what to publish.
Another, sometimes technical, challenge is the classification of the
different versions. In the databases, a distinction is made between the
author's manuscript, the published version and other versions.
The distinction is crucial, with some publishers prohibiting the
distribution of the «version of record», the final version of the
What remains unclear are the criteria for rejecting or accepting the
waiver. While some faculties require extensive justifications, others grant
approval without further inquiry.
In relation to the specific situation in the United States, it is also
questionable whether the statutory «work made for hire» scheme
could result in the university, as the employer, being regarded as the
author, rather than the researcher herself or himself.
Nevertheless, the Harvard model appears as a useful complement to the US
legal system concerning copyrights. One reason is, that the system alone -
even with its limitations and exceptions for the benefit of education,
science and archiving - does not meet the full potential of the new
technologies for educational institutions.
2. University of Suffolk: UK Scholarly Communication License (UK-SCL)
In the United Kingdom, a variety of OA approaches and institutional
regulations has evolved.
Here, some universities already have a budget for gold road publications.
In this context, OA approaches are being discussed
and increasingly supported.
At the University of Sussex, for example, an approach
based on the Harvard model is being pursued.
In addition to making writings available in a database, a focus is placed
on the reuse of the stored works.
This is done by means of standardized Creative Commons (CC) licenses, which
enable third parties to use the particular work.
The author himself or herself can decide about the rights enjoyed by other
Proponents of this approach stress that CC licenses better meet the needs
of the copyright owner, compared to the traditional reward-based system.
This model differs from the Harvard model due to its use of CC licenses.
However, according to the DASH conditions, a subsequent use is possible
At the University of Suffolk, under the «UK Scholarly Communications
License», the «CC‑BY‑NC» basic form of the CC
license is applied.
This is comprised of the «attribution» («BY») and the
«non-commercial use» («NC») components. Possible
additions can include the «share alike» («SA») and
«no derivatives» («ND») components.
The necessary precondition for any type of use is the attribution of the
work to the
Furthermore, the concept of the «moving wall» license is in use.
The storage of the writing in the repository allows for metadata to be made
The UK‑SCL also provides for special exemptions. However, unlike the
Harvard approach, more room is given for the institutions, whose conditions
for refusing the waiver can be set forth individually.
This model, too, follows the assumption that the copyright of a work will
be attributed to the author and not the university.
In Germany, the idea of OA was promoted by the Alliance of Scientific
Organizations («Allianz der Wissenschaftsorganisationen»)
and, to the astonishment of many, by the legal committee of the Bundestag.
Section 38 para. 4 of the German Copyright Act (UrhG), which came into
force on 1 January 2014, grants researchers, who finance their work
predominantly with state funding, a nationwide self-activating
right - after a contractually mandatory waiting period of one year.
In the explanatory memorandum
of the German legislators, central justifications of the Open Access
paradigm are being taken into consideration for the first time.
Furthermore, in 2017 the federal government voted to accept the «Draft
Law on the Alignment of Copyright with the Current Requirements of the
Knowledge Society» (UrhWissG).
The obligation to OA has been particularly notable since the third
University Law Amendment Act of April 1, 2014 (3. HRÄG), and the
adoption of § 44 para. 6 of the State Higher Education Act (LHG) in
Baden-Wuerttemberg. By statute, researchers are obliged to exercise their
rights from the aforementioned § 38 para. 4 of the Copyright Act.
Thus, a disciplinary-juridical protection is in force. The right becomes a
Still, the question of the constitutionality of such an obligation arises.
The Federal Constitutional Court (Bundesverfassungsgericht) places a
researcher's decision about where to publish under the fundamental right of
freedom of research (Art. 5 para. 3 Constitution - Grundgesetz [GG]).
In addition, the secondary publication requirement
(Zweitveröffentlichungsrecht) contradicts § 3 para. 2 LHG, in
which the freedom of research is anchored.
To these substantive aspects comes the question as to whether or not the
federal states have legislative authority. The answer must be no if, in the
process of determination, a barrier can be seen to copyright and thus
substantive copyright law.
Do individual rights for researchers consequently emerge from the LHG? The
law directs the statute obligation to universities, not directly to
Thus, the successful introduction of an OA obligation, as well as any
actions against such a requirement, ultimately depend on the statutes of
the respective universities and their implementation.
III. Implementation in Switzerland
The question of whether university employees may or should be obligated to
OA cannot be answered solely from the perspective of university laws.
Rather, recent legal developments, implementation approaches and future
challenges must be taken into consideration.
This notably includes cantonal law, due to the universities' funding
as outlined in the federal law. The Federal Act on Funding and Coordination
of the Swiss Higher Education Sector (Higher Education Act, HEdA),
in particular, must be taken into account.
1. Affected Areas of Law
Open Access and any related obligation thus concerns various legal bases.
In the following, aspects of constitutional, copyright and competition law
will be discussed in particular. A distinction will be made between the
perspective of the university, and that of its research staff.
a) Constitutional Law
From a constitutional point of view, the first question is whether an
obligation to OA could be supported by the scholarly freedom provided for
Art. 20 of the Federal Constitution of the Swiss Confederation (BV).
as a part of society's opinion-making process, requires a high degree of
For universities, as a prerequisite for the independence of researchers,
this means organizational autonomy.
This results in a directive to the state to promote scientific research and
innovation (Art. 64 para. 1 BV).
Still, it needs to be clarified to what extent academic freedom is
compatible with the claims of OA.
In general, academic freedom does appear to correspond with OA. An image of
science whose main function is based on «cognition by method»
benefits from the aim of free accessibility of scientific information.
A part of science is the distribution of such information in an open,
In addition to determining the respective publication for distribution,
free publishing also involves having the option to choose the date and
channel of publication.
This aspect shows that an obligation to OA is in tension with academic
freedom. Accordingly, such an obligation must take considerations of
proportionality into account from the very start.
Not only the researchers as natural, but also as legal persons may have
fundamental rights under Art. 20 BV. Still, it remains
unclear if and how universities should be involved.
Academic freedom, as part of the third-party applicability of fundamental
rights («Drittwirkung der Grundrechte»), not only applies in
relation to the state, but must also be considered in the interpretation
between private individuals.
In light of an OA obligation, the interpretation of the
Federal Act on Copyright and Related Rights (Copyright Act, CopA)
in particular appears primarily relevant. If and to what extent an
interpretation of fundamental rights is relevant in practice, remains a
matter of dispute.
Yet the aim of the norm restricts interpretations from being too extensive.
Furthermore, an interpretation is not automatically compliant with the
Federal Constitution of the Swiss Confederation if it corresponds to
academic freedom; rather, other constitutional provisions must be taken
One such example involves property rights.
Intellectual property rights are considered a part of the property rights
under Art. 26 BV.
Interestingly enough, fundamental liberties and copyright law reflect
diametrically opposed interests. As a result of debates related to the
digital age, this fact is moving into the public focus.
b) Copyright and Associated Issues
Compared to other jurisdictions,
the Swiss CopA offers flexible responses to the development of information
This is facilitated by the design of the usage rights as a general clause,
with corresponding samples («Regelbeispiele»).
But do they also allow for an obligation to OA?
From a copyright perspective, it seems clear that a university does not
automatically hold the rights to works that their paid researchers produce.
Therefore, a publication in a university repository requires an explicit
grant of rights.
This stems in part from the creator principle
(«Schöpferprinzip») ofArt. 6 CopA,
and of Art. 9 para. 2 CopA,
whereby the author can decide what, where and when to publish. If deciding
to negotiate directly with the publisher, within the scope of the author's
contractual autonomy, the authors typically find themselves in a weaker
As a result, the author often - sometimes unwittingly - transfers the
corresponding «online rights».
Nevertheless, simple licenses
could facilitate the author's retention of rights without any problem.
for such licenses can be found online, for example on the SPARC website.
They can then be incorporated into a corresponding contract.
The default rules of the law shall apply, if parties did not derogate from
these rules by agreement.
Where Swiss law applies,
Art. 381 para. 1 of the Federal Act on the Amendment of the Swiss Civil
(Part Five: The Code of Obligations, OR)
is of particular relevance. According to this article, only those rights
shall be transferred that are actually needed for the implementation of the
If the author concludes a publishing contract with an OA publisher or
repository, the reproduction
or access rights
are no longer in the foreground, their place being taken by the technical
and sales-related services of the provider.
The interest of the author in granting a non-exclusive license corresponds
with that of the university as operator of the repository. Ideally, the
latter has no interest in an extensive or even commercial exploitation of
For this reason, problems arise especially when the author is bound by a
In such cases, negotiations between the university and the publisher seems
to be the most promising for all involved.
As in the United States,
cooperating publishers can then benefit from their appearance on the
Altogether, it can be stated that the existing Swiss CopA enables, but does not
promote, OA publications. What changes in favor of OA would be possible on
the part of the legislature or universities? One approach would be the
combination of public and copyright law rules.
Through mandatory rules, the right to make publicly accessible would remain
with the copyright holder. Immediately, or after a specified period, the
author would have the option or obligation to deposit the work in the
A further proposal to introduce compulsory licenses appears as a relic of
an old-fashioned copyright system and is thus only partially effective.
Barrier schemes («Schrankenregelungen»)
that benefit the operator of the repository must respect the requirements
of the three-step test
- and seem difficult to enforce politically, because they would deprive the
author of a part of his or her copyright from the outset.
It should be noted that most of these proposals do not include OA
obligations, but try to promote the aims by other means. Suggestions for OA
obligations generally relate only to higher education law, as well as to
regulations of funding organizations, such as the Swiss National Science
c) Competition Law
Some publishers of reputable scholarly journals hold a quasi-monopolistic
position. This is reinforced by several trends. Aspects of competition law
are also noted in online platforms with a solid customer base. While
offering customers added value, they complicate the entrance into the
market for future competitors.
On an individual basis, this situation can be avoided in part by
self-archiving. Collectively and sustainably, this can happen through the
creation and preservation of OA business models.
In the promotion of Open Access, there is regular mention of antitrust
price control over the large publishing companies, and thus of measures for
If, in the national OA agenda, an obligation to publishing Open Access in
institutional repositories is pursued, these repositories become
competitors, because they effectively constitute a part of the publishing
2. The Example of the University of St.Gallen and the National Science
Self-regulation is clearly on the agenda in the field of research. It
determines the forms for publication, communication and reception.
As a result, many institutions in Switzerland already have OA servers or
The various OA strategies at the universities have to be considered
separately from the technical implementation. They differ in terms of form,
content and institutional embedding.
The University of St. Gallen, for example, has an OA regulation that governs various
aspects. The duties of the researchers include providing bibliographic
data, full texts as a pre- or post-print version, and ensuring
non-exclusive distribution rights in publishing contracts. A higher level
of liability arises with the
Implementation Provisions for Doctoral Studies
of May 2, 2017. Pursuant to Art. 31 para. 1, the doctoral candidates must
declare that they transfer to the university the rights to save the
dissertation electronically, to make the dissertation publicly available in
data networks and to provide further copies to the professors of the
University of St. Gallen.
In Switzerland, the Swiss National Science Foundation (SNF) attracted
particular attention with its obligation requirements. The aforementioned
Vision 2024 aims at introducing and coordinating OA policies, negotiations
with publishers (known as offset agreements, or the «offsetting
road»), the use of alternative forms of publication,
the coordination and pooling of resources,
the formation of a supportive regulatory framework, the establishment of a
national monitoring system, and raising of awareness in general. Different
scenarios are feasible.
As co-signatory of the Berlin Declaration, the SNF sees
itself as a promoter of OA efforts and is trying to develop a corresponding
political framework. It is therefore not surprising to contribution
recipients that Open Access publication is required.
3. Challenges for the Establishment of OA Obligations
Different interests of the parties involved - the institutions, individual
researchers and representatives of the publishing industry
- as well as the international context of OA
make a possible introduction of OA obligations into a complex project. This
circumstance becomes particularly evident when a functioning and reliable
OA obligation rule must be transferred to another institution.
For Switzerland, with a decentralized education and research system,
this is not much different.
The legal rules and institutional basis of OA obligations would be of
importance for the implementation, but they are no guarantee of success.
Instead, individual researchers need to be convinced of the idea.
Such conviction may arise, in particular, if a similar boost of reputation
can be achieved through OA publications. Furthermore, personal advocacy is
needed on the part of universities.
While a wide access scheme is in demand for foreign research results, the
university's own publications are largely still being held under wraps.
When addressing Open Access, the specific implementation must be
distinguished from the vision.
In answering the question of whether an OA obligation can be introduced for
researchers in Switzerland, a more concrete framework would be desirable.
What must be clarified, in particular, is whether the Swiss legislator in
the ongoing revision of the Copyright Act is willing to introduce a
secondary publication right («Zweitver-öffentlichungsrecht»)
Furthermore, in relation to Art. 20 BV, concretization is
needed with regard to the question of whether an OA obligation would be
consistent with fundamental rights.
At the moment, only sparse case law exists.
OA strategies and rules, as bases of an OA obligation, not only concern the
legal sphere, but also social and political issues. Especially when it
comes to promoting innovation, a discourse between representatives of the
scientific, social, economic and technological spheres would be fruitful.
While supporters see the OA obligation as an effective way to achieve the
OA vision and view it as a future direction for research,
opponents see it as a threat to the existing legal understanding of the
publishing industry, and to the culture of books.
Keeping this is mind, the question arises as to how to legislate a possible
OA obligation: as compulsory or as a «mandatory option» with the
possibility of opting out?
Three proposals are being considered as plausible - which ideally would be
combined altogether They are: An OA obligation in higher education law with
an opt-out option, based on the English model,
the introduction of a secondary publication law, similar to the one in the
Federal Republic of Germany,
and an antitrust
price control in view of quasi-monopolistic publishing groups.
On the glaring differences between natural and social sciences, see
Michael Link, Open Access im Wissenschaftsbereich, Diss.,
Erlangen-Nuremberg 2013, Frankfurt am Main, 2013, p. 115. Daniel
Hürlimann/Alexander Grossmann, Open Access als Utopie?,
in Informationspraxis, 2017, p. 2.
Hanjo Hamann, Freier Zugang zur juristischen Fachliteratur im
Spiegel der Open-Science-Bewegung, in sui generis, 2016, p. 96 ff.,
p. 102; Thomas Pflüger/Dietmar Ertmann, E-Publishing und Open
Access - Konsequenzen für das Urheberrecht im
Hoch-schulbereich, in ZUM, 2004, p. 436 ff., p. 436. Eric W.
Das Recht auf Sichtbarkeit,
Münster, 2010, p. 17. For a critical view on the possible
consequences to the publication system, see Christian Russ, Freier
Zugriff auf wissenschaftliche Beiträge?, in ZRP, 2004, p. 247
Pflüger/Ertmann (fn. 5), p. 437.
A sample summary of the costs can be found here. For the call for
disclosure of the publication fees, made in June 2016 by the
Alliance of Scientific Organizations in Germany, see Thomas
Hartmann, a Legal Agenda for Digital Content, in RBD, 2016, p. 21
ff., p. 27. The question of whether a sufficient public interest
exists for insight into the publishing contracts of Swiss academic
libraries was negated by the Federal Court (judgment 1C_40/2017, July 5, 2017).
With specific reference to the information-friendly information and
privacy law legislation of the Canton of Basel-Stadt, the judges
considered it reasonable to put private and public interests of a
certain weight over the request for access (E. 6.2.2).
Eric Priest, Copyright and the Harvard Open Access Mandate, in
NJTIP, 2012, p. 377 ff., p. 391 ff.
For possible organizational models of repositories, see Margo
Bargheer/Saskia Bellem/Birgit Schmidt, Open Access und
Institutional Repositories - Rechtliche Rahmenbedingungen, p. 16
ff., in Gerald Spindler (ed.), Rechtliche Rahmenbedingungen von
Open Access-Publikationen, Goettingen, 2006, p. 1 ff. For the whole
topic, see Reto M. Hilty/Matthias Seemann,
Open Access - Zugang zu wissenschaftlichen Publikationen im
schweizerischen Recht, commissioned by the University of Zurich, Zurich, 2009, p. 16 ff.
OA supporters prefer the publication on their own websites
(«self-archiving»); see Alma Swan, The Culture of Open
Access. Researchers' Views and Responses, in Neil Jacobs (ed.),
Open Access: Key Strategic, Technical and Economic Aspects, Oxford,
2006, p. 65 ff., p. 71. See also Bargheer/Bellem/Schmidt (fn. 9),
p. 8. For repositories, see the IUWIS project, Institute for the
Library and Information Science at the Humboldt University of
Berlin, «Handreichung 'Zur urheberrechtlichen Gestaltung von
Repositorien' für Universitäten, Forschungszentren und
Swissuniversities, Open Access. The plan of
action proposes an approach that combines the three basic options
(green road, gold road, offsetting road). See Aktionsplan, p. 8 f. Not a
topic of this paper, but nevertheless an essential decision factor
for or against the individual scenarios, are the costs. Scholarly
papers delving deeper into this topic would be desirable.
For the limitations of the democracy-determined framework, see
Thomas Hartmann, Open Access rechtlich absichern - warum es ein
Opt-in braucht, in Konstanze Söllner/Bernhard Mittermaier
(eds.), Praxishandbuch Open Access, Berlin, 2017, p. 45 ff., p. 46.
See Robert Mitchell,
Harvard to Collect, Disseminate Scholarly Articles for Faculty, Harvard Gazette, February 14, 2008; Priest (fn. 8), p. 381, p.
396. The implementation is based on an approach of the US National
Institute of Health (NIH) of 2005; see Orit Fischman Afori, The
Battle Over Public E-Libraries - Taking Stock and Moving Ahead, in
IIC, 2013, p. 392 ff., p. 398; Priest (fn. 8), p. 398.
Axel Metzger, Die urheberrechtliche Gestaltung von Open Access
Repositorien, Report, in IUWIS Handreichung (fn. 9), p. 55.
See the duty of justification in the
Harvard Law School Open Access Policy: «
The Dean or the Dean's designate will waive application of the
policy to a particular article upon written request by a
Faculty member explaining the need.»
Stuart Shieber/Peter Suber, Good Practices for University
Open-Access Policies (2013), Cambridge, MA: Harvard, Open Access
Project; Young (fn. 16), p. 7 f.
For the current state of discussion in Germany, see Matthias
Mönch/Jens M. Nödler, Hochschulen und Urheberrecht -
Schutz wissenschaftlicher Werke, in Gerald Spindler (eds.),
Rechtliche Rahmenbedingungen von Open Access-Publikationen,
Göttingen, 2006, p. 21 ff., p. 40; Pflüger/Ertmann (fn.
5), p. 441; Arthur-Axel Wandtke/Winfried Bullinger, Praxiskommentar
zum Urheberrecht, § 43 UrhG, 4th ed., Munich, 2014, note
Of particular relevance is the «version of record», as
the publisher's final version, as opposed to the author's
manuscripts; see Daniel Rothchild/Stuart Shieber,
Automatically Determining Versions of Scholarly Articles, in SRC, 2017, p. 2; see also Melanie Bosshart, Das
Creative-Commons-Lizenzsystem, Diss., Zurich 2013, p. 227.
An automated test procedure using machine learning algorithms
(logistic regression) is proposed here, which has already been
proven in direct comparison with manual testing by experts. For the
whole topic, see Rothchild/Shieber (fn. 28), p. 1 ff.; see also
Duranceau/Kriegsman (fn. 18), p. 81.
17 US Code § 101; see Inge Hochreutener, Der Verlagsvertrag,
Art. 380-393 OR, in Jörg Schmid, Kommentar zum schweizerischen
Zivilrecht, 4th ed., Zurich, 2011, p. 20.
For a critical example, see for instance Priest (fn. 8), p. 400 ff.
This scenario is possible, in particular because the US copyright
system (unlike continental European law) does not acknowledge any
moral rights in the true sense of the word and therefore draws on
legal usage; see Hochreutener (fn. 31), p. 20.
See Philipp Usadel, Copyright Law and the Access to Education and
Knowledge in the Digital Age: Matching Limitations and Exceptions
in Portugal, Brazil and Mozambique, Aachen, 2016, p. 172 f. On the
influence of the prominence of this Ivy League university, see
Suber (fn. 16). For the US copyright system, see Lawrence Lessig,
The Creative Commons, Montana Law Review, 2007, 65, p. 4 ff.
Banks (fn. 23), p. 39 f. See also the Finch Report 2012 (Report of
the Working Group on Expanding Access to Published Research
Findings) and the Response of the BIS (UK
Department for Business Innovation and Skills) from July 16, 2012.
UK Scholarly Communications Licence, University of Suffolk, p. 8.
See UK Scholarly Communications Licence, University of Sussex (fn.
36), p. 1. There as well (as under the Harvard model), the
obligation to publish OA is determined within the university.
The university itself provides a model guideline for
adaptation by other institutions. The Imperial College London has
had a pioneering role in the development of such a guideline; see
Gadd (fn. 34), p. 97 f.
Hartmann, Opt-in (fn. 14), p. 48.
UK Scholarly Communications Licence, University of Suffolk
(fn. 36), p. 5; see Hartmann, Opt-in (fn. 14), p. 48.
Michael Fehling, Von der kommerziellen Verlagsproduktion zum Open
Access - Zur Rolle des Rechts beim Wandel wissenschaftlicher
Publikationskanäle, in Wolfgang Hoffmann-Riem (ed.),
Innovationen im Recht, Baden-Baden, 2016, p. 337 ff., p. 342;
Lessig (fn. 33), p. 11.
Bosshart (fn. 28), p. 63. The reward would be in the promotion of
original writings. Regarding the compatibility of the licensing
with national law, see Miriam Sahlfeld, Creative Commons, in
Medialex, 2007, p. 72 ff., p. 74 ff.
See for example the University of Suffolk: UK Scholarly
Communications Licence, University of Suffolk (fn. 36), p. 5.
Bosshart (fn. 28), p. 64 f.; see Lessig (fn. 33), p. 11.
Stuart M. Shieber, The Case for the Journal's Use of a CC-BY
License, in JLM, 2012, p. 5 ff., p. 6.
Gadd (fn. 34), p. 98.
See chap. III.1; Gadd (fn. 34), p. 98. See also the
CDPA (Copyright Designs and Patents Act, 1988), wherein is stated, «Where a literary, dramatic, musical or
artistic work, or a film, is made by an employee in the course of
his employment, his employer is the first owner of any copyright in
the work subject to any agreement to the contrary.» See
Hochreutener (fn. 31), p. 20 f. For the actual survey of copyright
claims in guidelines from UK universities, see Gadd (fn. 34), p.
105 ff., p. 111. In the omitted clarification of the controversial
copyright issue, in the cause for developing a framework for OA
approaches, and in joint authorship, there are possibilities for
resolving various problem areas related to OA.
Resolution («Entschliessung») June 26, 2013, p. 2 ff.; Fehling (fn. 41), p. 340. For the requirements of EU
law, see Daniel Krausnick, Offene Wissenschaft? -
Öffentlich-rechtliche Aspekte der Diskussion um Open Access
und Open Data, in Max-Emanuel Geis/Markus Winkler/Christian
Bickenbach (eds.), Von der Kultur der Verfassung, Festschrift
für Friedhelm Hufen, Munich, 2015, p. 367 ff., p. 371 ff.
Regarding the controversial classification of this right as a
barrier («Schrankenregelung») - not compatible with EU
law - previous to the revision, see Hirschfelder (fn. 49), p. 138
f.; for a contrasting view, see Gerd Hansen, Für ein
Zweitveröffentlichungsrecht für Wissenschaftler -
zugleich Besprechung von Marcus Hirschfelder: Anforderungen an eine
rechtliche Verankerung des Open Access Prinzips, in GRUR Int. 2009,
p. 799 ff., p. 802 ff.
Ulrike Müßig, «Ein Knauf als Tür»: Open
Access-Verpflichtung durch Forschungsförderung vs.
Gemeinfreiheitsgrenzen digitaler Wissenschaftskommunikation, in JZ,
2015, p. 221 ff., p. 221, 229.
Hartmann, Opt-in (fn. 14), p. 48. What might appear progressive is
also accompanied by legal concerns; see Müßig (fn. 52),
p. 229 ff.
Drucksache 18/12329, May 15, 2017; Katharina de la Durantaye, Neues Urheberrecht für Bildung
und Wissenschaft - eine kritische Würdigung des
Gesetzesentwurfs, in GRUR, 2017, p. 558 ff.
Förderung statt Zwang - Neue Open Access Strategie in
Baden-Württemberg, in OdW, 2017, p. 59 f.; Georg Sandberger, Landeshochschulgesetz
Baden-Württemberg, Kommentar, 2nd ed., Heidelberg, 2015, p.
21. The order to deposit the publication in a repository was
previously made by an ordinance («Rechtsverordnung»), now
by a statute of the university («Satzung der
Hochschule»). The deadline is one year and is thus adjusted to
§ 38 para. 4 UrhG (in the hearing draft, six months were
planned); see Krausnick (fn. 50), p. 378.
Christian von Coelln/Volker M. Haug (eds.), BeckOK Hochschulrecht
Baden-Württemberg, no. 20 on § 44 LHG; Sandberger (fn.
56), p. 40.
Of major importance is the distinction between the right to
(«Zweitveröffentlichungsrecht») and the duty thereof
(«Zweitveröffentlichungspflicht»); see Sandberger
(fn. 56), p. 70; see Coelln/Haug (fn. 57), no. 21 on § 44 LHG.
BVerfG, Ruling («Beschluss») March 1, 1978, BVerfGE 47,
327, 367; Ruling January 11, 1994, BVerfGE 90, 1, 12; BGH Judgement
(«Urteil») September 27, 1990, BGHZ 112, 243 ff.; see
Müßig (fn. 52), p. 231 f.; Krausnick (fn. 50), p. 378.
Freedom of research (Art. 5 para. 3, first sentence of the
constitution [«Grundgesetz»]) particularly includes the
question, the principles of the methodology, and the evaluation of
the results of the research and their dissemination. Sentence 1
applies accordingly to artistic development projects and to the
practice of art (§ 3 para. 2 LHG); Sandberger (fn. 56), p. 40.
On the inhibition as a matter of national authority, see Art. 73
para. 1 no. 9 GG and Art. 71 GG; see also Krausnick (fn. 50), p.
A lawsuit against the statute would have to be taken by the
university; this, in turn, requires broad support across the
faculty boundaries, but it may fail due to the different attitudes
toward OA (see chap. II) and political orientations within the
fields of study.
Proceedings against the first norm control
(«Normenkontrolle») were initiated by 17 professors from
Konstanz at the Administrative Court of Baden-Wuerttemberg. By
resolution of September 26, 2017, the latter asked the Federal
Constitutional Court whether § 44 (6) of the
Landeshochschulgesetz (LHG) violated Art. 71, Art. 73 para. 1 no. 9
the Court's press release of November 6, 2017, and media reports on lto.de). In further
consequence, the Court recognized an intrinsic connection of the
matter to copyright, and, for this reason, a lack of legislative
power. The decision will
be suspended and brought to the Federal Constitutional Court. As
other universities are planning to make their actions dependent on
this decision, this process should not be underestimated; see the
article in the Badische Zeitung:
Sollen Wissenschaftstexte im Internet frei zugänglich
(«Should scholarly texts be freely accessible on the
This calculation was updated with the adoption of the national OA
strategy by the plenary assembly of Swissuniversities on January
31, 2017, and thus the imminent actual implementation in
Switzerland. See also, with a schedule, Swissuniversities, Open Access.
See Fabian Amschwand, Qualitätssicherung im schweizerischen
Hochschulwesen: Verfassungsrechtlicher Rahmen und Leitlinien
für die Umsetzung an den Hochschulen, in Heinz Hausheer, ASR -
Abhandlungen zum Schweizerischen Recht, no. 802, Bern, 2014, p. 15
ff., p. 23 f.
This question arises in the context of copyright law, public
service law and university law. It is therefore considered as a
central preliminary question. See also Steinhauer (fn. 5), p. 45.
The term «science» is not defined in the Swiss legal
system; however, it is assumed in the material for BV and is not
further discussed by the BG. See also Rainer J. Schweizer/Felix
Hafner, Art. 20 BV, in Die Schweizerische Bundesverfassung, 4th
ed., Zurich/St. Gallen, 2014, no. 8 on Art. 20; see Giovanni
Biaggini, BV Kommentar, Zurich, 2007, p. 163 f.
Jörg Paul Müller/Markus Schefer, Grundrechte in der
Schweiz, 4th ed., Bern, 2008, p. 544 ff. Freedom of science also
needs this framework for development; see Biaggini (fn. 69), p.
Müller/Schefer (fn. 70), p. 544. On the aspect of
independence, even with state sponsorship of the university, see
Regina Kiener/Walter Kälin, Grundrechte, 2nd ed., Bern, 2013,
See Paul Richli, Von der Gelehrtenrepublik zur
Managementuniversität?: Rechtsfragen der Organisation und
Leitung von Universitäten in der Bundesrepublik Deutschland,
Österreich, der Schweiz und den USA, Bern, 2009, p. 149. As a
secondary protection objective, this obligation also extends to
economic freedom (see
94 BV) in the sense of the need for competition-neutral behavior; see
Markus Müller, Akademische Freiheit, Sorgen um ein bedrohtes
Gut, in Berner Gedanken zum Recht: Festgabe der
Rechtswissenschaftlichen Fakultät der Universität Bern
für den Schweizerischen Juristentag 2014, Bern, 2014, p. 381
ff., 388 f.
See Kiener/Kälin (fn. 71), p. 266. In a democratic
constitutional state, no single understanding of science should be
given preference. Rather, their plurality must define the term and
thus the objects of protection; see Kiener/Kälin (fn. 71), p.
268; see also Müller/Schefer (fn. 70), p. 543.
See chap. II; see Nicole Schmidt, Open Access, Hochschulrechtliche
Veröffentlichungs- und urheberrechtliche Anbietungspflichten
des Hochschulprofessors, Diss., Dresden 2015, Baden-Baden, 2016, p.
Schweizer/Hafner (fn. 69), no. 8 on Art. 20; see Kiener/Kälin
(fn. 71), p. 267.
See Biaggini (fn. 69), p. 163; Schweizer/Hafner (fn. 69), no. 22 on
Biaggini (fn. 69), p. 164. In the sense of autonomy, this is
affirmed by the doctrine; see Kiener/Kälin (fn. 71), p. 266;
see also Schweizer/Hafner (fn. 69), no. 22 on Art. 20.
Hilty/Seemann (fn. 9), p. 22; denying the meaning.
See Thomas Gächter, Rechtsmissbrauch im öffentlichen
Recht: Unter besonderer Berücksichtigung des
Bundessozialversicherungssrechts. Ein Beitrag zu Treu und Glauben,
Methodik und Gesetzeskorrektur im öffentlichen Recht, Zurich,
2005, p. 280 f. For a concurring view, see Hilty/Seemann (fn. 9),
Schweizer/Hafner (fn. 69), no. 8 on Art. 20.
Hilty/Seemann (fn. 9), p. 22; see Schweizer/Hafner (fn. 69), no. 23
on Art. 20.
Ulrich Häfelin/Walter Haller/Helen Keller/
Daniela Thurnherr, Schweizerisches Bundesstaatsrecht, 9th ed.,
Zurich, 2016, no. 597.
This tension is nothing new; see Sundara Rajan, Copyright and
Creative Freedom: A Study of Post-socialist Law Reform, London,
2014, p. 26. See Hartmann, Opt-in (fn. 14), p. 45.
For examples from the German copyright law (UrhG), see Herbert
Burkert/Peter Hettich/Florent Thouvenin/Rehana Harasgama,
Remembering and Forgetting in the Digital Age - A Position Paper,
in Information Research, 2016, p. 60; see also Thomas Dreier,
Urheberrecht auf dem Weg zur Informationsgesellschaft - Anpassung
des Urheberrechts an die Bedürfnisse der
Informationsgesellschaft, in GRUR, 1997, p. 859 ff., p. 863.
See Burkert/Hettich/Thouvenin/Harasgama (fn. 87), p. 60, p. 57.
From a perspective of labor law, it is feared that if such an
obligation exists, researchers would become unattractive to
publishers, even though such an obligation is considered possible
under contract law; see Hilty/Seemann (fn. 9), p. 66; see in this
context also the polarizing Heidelberger Appell.
See Brigitte Bieler, Die Übertragung des Urheberrechts, in
Konstellationen des Arbeits-, Auftrags-, Werkvertrags- und
Produzentenverhältnisses sowie in ausgewählten Bereichen
des Umstrukturierungsrechts, Basler Studien zur Rechtswissenschaft,
Privatrecht, Vol. 117, Basel, 2014. For a German perspective, see
Joachim Dorschel, Open Access und Urheberrecht: Open Source in
neuem Gewand?, in Hagenhoff, p. 235 ff., p. 240 ff. On the topic of
transferring the copyright in employment relationships, with a
focus on the scientific community, see Manfred Rehbinder,
Schweizerisches Urheberrecht, 3rd ed., Bern, 2000, no. 175 ff.
The University can thus only acquire derivative rights; see
Hilty/Seemann (fn. 9), p. 25; Hilty, Urheberrecht, Bern, 2011, no.
See, for example, Denis Barrelet/Willi Egloff, Le nouveau droit
d'auteur, Commentaire de la loi fédérale sur le droit
d'auteur et les droits voisins, 3rd ed., Bern, 2008, p. 34 f.;
Hilty/Seemann (fn. 9), p. 24.
For a plea for strengthening the weaker party through mandatory
contract law provisions, such as in rental or employment law, see
Hilty (fn. 93), Urheberrecht, no. 38. However, it should be noted
that the largest Swiss publishers accommodate authors by offering
relatively short retention periods: for example, three months at
Schulthess, six months at Dike, and, pursuant to Art. 382 para 3 OR, three
months at Stämpfli and Helbing. See Bernhard Dengg, Slide 24.
In contrast to the absolute transfer of rights; see Hilty/Seemann
(fn. 9), p. 31 ff. For the permissible extent of the transfer of
copyright, see Bieler (fn. 92), p. 45 ff., in particular p. 65 ff.
Margo Bargheer, Open Access und Universitätsverlage: Auswege
aus der Publication Crisis? in Hagenhoff (fn. 92), p. 173 ff., p.
181. When dealing with repositories, the author should renounce his
or her copyright compensation claim; see Dorschel (fn. 92), p. 246
The Scholarly Publishing and Academic Resources Coalition.
Hilty/Seemann (fn. 9), p. 28.
It should be noted, however, that Art. 380 ff. OR are not
mandatory and are therefore outweighed by standard contracts and
commercial practices; see Peter Breitschmid, Title 12: Der
Verlagsvertrag, in Jolanta Kren Kostkiewicz/Stephan Wolf/Marc
Amstutzu/Roland Fankhauser, OR Kommentar Schweizerisches
Obligationenrecht, 3rd ed., Zurich, 2016, p. 1080.
The «theory of transfer for purpose»
(«Zweckübertragungstheorie»); see Reto M. Hilty/Reto
Arpagaus, Bundesgesetz gegen den unlauteren Wettbewerb (UWG),
Basler Kommentar, Basel, 2013, Art. 381 OR, no. 4; Rehbinder (fn.
92), no. 165. From a German perspective, see Dorschel (fn. 92),
Dorschel (fn. 92), p. 235 ff., p. 238. Related to the publishing
contract in the light of technical developments and OA in
publishing contract law, see Hochreutener (fn. 31), p. 12 ff., and
p. 154 ff.
Dorschel (fn. 92), p. 235 ff.
The publishing contract as the only legally regulated copyright
exploitation contract; see Breitschmid (fn. 102), p. 1080 ff.
Comprehensively and extensively to the publishing contract; see
Hochreutener (fn. 31).
Hilty/Seemann (fn. 9), p. 67 ff.
Comparable to the German model. However, the resulting problems
must by no means be ignored. See chap. III.3.
Roland von Büren/Lucas David, Schweizerisches
Immaterialgüter- und Wettbewerbsrecht, 3rd ed., Basel, 2014,
p. 179; Dorschel (fn. 92), p. 242; Reto M. Hilty, Renaissance der
Zwangslizenzen im Urheberrecht? in GRUR, 2009, p. 633 ff.;
Hilty/Seemann (fn. 9), p. 96.
Meaning scholarly publications made accessible without the consent
of the copyright holder.
Dorschel (fn. 92), p. 245 ff.; Hilty (fn. 93), p. 179, 189;
Hilty/Seemann (fn. 9), p. 92 ff.
Hartmann, Legal Agenda (fn. 7), p. 35.
Hamann (fn. 5), p. 99. Noted alternatives to this are the copyright
barrier (based on the English model) and the secondary publication
right (based on the German model).
Hartmann, Legal Agenda (fn. 7), p. 28.
Which would lead directly to the gold road.
In particular, the green road approach could be optimized and made
more efficient by working with existing (in-house) infrastructures.
See especially the offsetting road, green road and gold road. See
Concerning the interests of the researchers, see Judgment of the
Federal Supreme Court of Switzerland 1C_40/2017, July 5, 2017,
E. 6.2.1 f. These interests must also be articulated. In
particular, adequate representation is a challenge. Regarding the
representation of authors by the universities and individual
faculties, see Duranceau/Kriegsman (fn. 18), p. 92.
Duranceau/Kriegsman (fn. 18), p. 77. See chap. III.1, 2: The
adaptation of the Harvard style to other institutions was
successful, especially as the faculties acted as driving forces.
Swiss National Strategy on Open Access, 3. Guiding Principles, 1. Powerful and unified approach, p. 2 f.
Not to be forgotten are the politicians and political interests,
which are influential in the question of obligation and in the
development of a concrete statute. For the role of politics as part
of the community in network policy in general, see Dirk Heckmann,
Herausforderungen für das Gemeinwesen 2.0, Freiheit und
Fairness als Leitmotiv einer neuen Netzpolitik, wie sie in
Deutschland diskutiert wird, in digma, 2011, p. 12 ff.
See Priest (fn. 8), p. 377; Duranceau/Kriegsman (fn. 18), p. 77
ff.; Judgement 1C_40/2017,
July 5, 2017, E. 6.2.1 f. For the generally OA-friendly concept of
science, see chap. III.1.a).
Müßig (fn. 52), p. 227. However, it is also stated that
currently existing differences in reputation (in the humanities
even more pronounced than in the natural sciences) could be
overcome relatively quickly by the intensified establishment of OA.
See chap. I, II, III. At the same time, universities are seen as
the main actors in this implementation process; see
Swissuniversities, Aktionsplan, p. 3 f.
As an example, see
Swiss National Strategy on Open Access, 6. Implementation, p. 6. For the effective dissemination of
knowledge, according to the wishes of researchers, see Shieber (fn.
45), p. 5 ff.; Fischman Afori (fn. 15), p. 398 ff.
Especially in Germany, this discussion was already amplified. See
chap. III.3. See, for example, the Heidelberger Appell and
the numerous countervotes (fn. 91).
Steinhauer (fn. 5), p. 44. These can follow funding guidelines
(concerning projects that benefit from national research funding)
or come directly from university law («Hochschulrecht»);
see Hamann (fn. 5), p. 99.
Although, from an antitrust point of view, the existence of a
monopoly would be difficult to justify.
Hamann (fn. 5), p. 99, with reference to Matthias Seemann.