Does the secondary publication right authorize the creation of OER?

May I publish my academic article, for which I have granted a publisher exclusive rights of use, as OER (i.e. openly licensed) on twillo or on another internet platform after one year has passed since the initial publication?

No. The secondary publication right pursuant to Section 38 (4) of the Copyright Act does not authorize open licensing of the work.

In order to openly license a work, you need all exploitation rights - reproduction right, right to sublicense, editing right, right to commercial use - to the work. If these rights are held exclusively by a publisher, the author him/herself may not grant third parties any rights of use through a Creative Commons license.

The secondary publication right only entitles the author to make a work publicly accessible again online after the expiry of the waiting period of 12 months since the first publication. Other exploitation rights, however, remain with the publisher. Only the publisher may commercially exploit the work, reproduce it (e.g. make copies) and distribute it in print form. Only the publisher may grant third parties rights to the work.

Apart from this, the requirements of the secondary publication right (Section 38 (4) of the Copyright Act) are very narrow:

• It applies exclusively to scientific contributions in a periodical (at least twice a year) collection, at least half of which are the result of research projects financed by third-party funds (non-university sector);
• Rights to the article must be held exclusively by a publisher;
  • the article may only be published as a manuscript version (no print version!) that has been agreed with the publisher;
  • the source of the first publication must be indicated;
  • no commercial purpose may be pursued with the publication.

Further information on secondary publication rights can be found in this TIB blog article: The new secondary publication right in copyright law - a step towards Open Access! Or not?! - TIB Blog .

For information: Anyone who has exclusively transferred all exploitation rights to a work to a publisher no longer has the option of doing anything with their work. The only rights to the work that authors retain are the right to be named as the author (if no effective waiver has been agreed) and the secondary publication right with its strict conditions.

If you want to decide for yourself where, how often and under which license your work is published, you should only grant the publisher simple rights. This must be set out in writing, otherwise it is assumed that all exploitation rights are transferred, cf. section 8 of the German Publishing Act.