What is the second publication right?
The “second publication right” refers to the right of an author to publish their scientific articles for the second time in another outlet (e.g. institutional repositories, web-platforms or other journals), with the aim of reaching a wider readership.
However, the author should consider any contractual agreements with the original publisher or any applicable laws before exercising this right.
The second publication right exists in most countries and is either included in copyright or contractual law. The concept is always the same but how it is applied may vary. In Switzerland, the notion of the second publication right finds its place within contractual law because it is closely related to the contractual relationship between the author and the publisher. In order to fully comprehend the second publication right it is fundamental to understand the concepts at the basis of a publishing contract. To do so, please consult the page dedicated to the publishing contract.
The second publication right in Switzerland
In Switzerland the second publication right is regulated through publishing contracts between the author and the publisher. This publishing contract is governed by the Swiss Code of Obligations (CO), which as a general rule states that the author of a work grants the publisher the exclusive right to publish and distribute the work in question. This means that the author is not allowed to re-publish the same work or any version of it (including translations) for the whole duration of the contract, as this would interfere with the financial interests of the publisher.
However, to make sure that information is accessible to the public at large and thus to satisfy the interests of scientific communities, there are exceptions to the general rule, allowing authors to re-publish their works after a certain time.
After how much time can authors re-publish their works (Embargo Period)?
The Swiss Code of Obligations distinguishes three publication scenarios, which depend on the length and the purpose of the work to be published:
The first one is about…
1) Large works, such as entire books (art. 382 para. 1 CO): this case follows the general rule explained before. The publisher has the exclusive right to publish and distribute the work until the contract expires, which is usually defined in the contract or if not when the editions are out of print (or in case of e-books, until they are not promoted anymore by the publisher). Only then the author gets back their rights and can republish the work. This rule protects the publisher’s financial investment which in case of larger works is quite consistent.
The second scenario is about
2) Short essays and newspaper articles (art. 382 para. 2 CO): in this case the Code of Obligations allows authors to republish and reuse their works at any time because these articles usually have a very short lifespan. A news article is already old the next day, and people will not pay for reading it anymore. The investment of the publisher is thus not at risk if the article is republished immediately.
The third scenario lies exactly in between the first two scenarios and is about ….
3) Longer articles in journals and contributions to collections (art. 382 para. 3 CO): this is in fact the scenario that is most relevant for scientific publications. In this case the Code of Obligations defines a so-called “embargo period” of three months during which the articles may not be re-published or re-used. In this way it finds a balance between the interests of publishers, by granting them exclusivity during the first three months after publication, and those of the authors, by allowing them to re-publish and re-use their works after the embargo period. Three months are considered enough, as, similarly to newspaper articles, scientific papers are meant to inform about new scientific findings. There is a great interest in learning about these findings while they are fresh, but the level of novelty fades away with time. It is thus right to protect the interest and investment of publishers for some time but not for very long. This is called the second publication right.
However, it may be that a longer embargo time has been agreed in a publishing contract between author and publisher. In this case it is controversial whether such a contract would prevail over the law, which suggests an embargo period of 3 months, as no jurisprudence exists in this matter. Currently this controversy is mainly interpreted in favor of the contract prevailing over the art 382 para. 3 CO (3rd scenario). The embargo period of 3 months defined in this article is thus considered more as a suggestion than a binding rule (see difference between imperative and non-imperative law).
However, there are also good arguments in favor of the law prevailing over a contract as suggested by Grégoire Geissbühler, L’Open Access dans le Code des obligations, in : Jusletter 17 mai 2021.
Which version of a scientific article can be re-published?
Another question to answer is which version of the article can be re-published. In general, the answer is simple: it is the final version (the “Version of Records” (VoR), because the object of the contract between authors and publishers is the final version of the work. And as the possibility of second publication is linked to the contract, it is the object of the contract that can be re-published, thus the final version.
However, also in this case it is possible that in the contract something different has been defined (e.g. possibility of republication of the “Author’s Accepted Manuscript” (AAM) / the pre-print version).
Researchers may negotiate with publishers which version to make accessible to the public: the best would be the VoR; if the publisher doesn’t accept, a good compromise is to agree to immediately publish the AAM and, after 3 months, the VoR.
When does the Swiss law apply?
What we have just explained only applies if the governing law is Swiss. This is generally the case if the Swiss jurisdiction is determined in the contract or if the publisher is in Switzerland. In any case, mentioning the applicable national law (Swiss, Italian, US,…) in the contract is recommended to avoid confusion. Most other European countries have similar rules regarding second publication right, but the length of the embargo period might be different, ranging from 3 up to 12 months.
The project Regulatory Framework
Regulatory Framework is a project funded by swissuniversities that started 1 October 2022 and lasted one year, with the aim of providing possible future solutions to strengthen the second publication right in Switzerland by analysing existing regulations on the topic at national and international level, by exploring possible approaches within copyright and international law, and by considering also other areas such as customs, public procurement and data protection legislations. The project was a collaboration between the University of Zurich, the University of Basel, the Université de Genève, the Center for Information, Technology, Society and law, Switch, the CCdigitallaw of the Università della Svizzera italiana and the Haute école de gestion de Fribourg.
The final report is accessible here.
In summary, it emerged that the stronger second publication right should fulfil the following requirements:
– A second publication right that is clearly imperative law, meaning that it prevails over any contract that differently regulates the possibility of re-publishing the work;
– A short embargo period, if any (exact length to be defined);
– A second publication right focused on scientific publications;
– A second publication right for publications made within researches funded at least partially by public funds;
– Also monographs and teaching books should fall under this right;
– In which act to implement this right remains to be defined, preferably in the Federal Act on Private International Law.
TO CONSIDER
The agreement between a publisher and author involves copyright management, with options including full transfer of rights to the publisher, an exclusive license limiting the author’s rights, or a non-exclusive license allowing immediate republication. The chosen approach determines control and collaboration between the parties, with exclusive licenses and copyright transfers imposing an embargo before the author can republish, unlike a non-exclusive license.
According to the Swiss National Science Foundation (SNSF) regulations (Funding Regulations, General Implementation Regulations for the Funding Regulations, Regulations on the Funding of Open Access Publications), funding of research projects by the SNSF is subject to research results being made openly accessible to the public and published under a Creative Commons Attribution CC-BY license. More specifically, the SNSF distinguishes between scientific articles and all other publications (books, book chapters, monographs, etc.), requiring the former to be immediately made available publicly, while all other publications to be made available publicly after a period of 12 months at the latest. At least the Author’s Accepted Manuscript version (pre-print) should be made available without any restrictions, in digital forms and free of charge (Implementation Regulations, clause 11.12 para. 2). Moreover, researchers should always take into account open access costs when applying for grants.
As the SNSF requires immediate open access publications for scientific articles, the second publishing right (art. 382 para. 3 CO) as described above, is not enough and can thus not be applied. The SNSF thus goes much further than what the law states. The same is true for all publishing contracts that foresee an embargo period.
To avoid conflicts, researchers should always include the following statement when submitting their manuscript to the publisher, to make it aware of the SNSF requirements: “This research was funded in whole or in part by the Swiss National Science Foundation (SNSF) [Grant number]. For the purpose of Open Access, a CC BY public copyright license is applied to any Author Accepted Manuscript (AAM) version arising from this submission.” (Clause 11.13 para. 3 of the Implementation Regulations).
Especially check the defined embargo period, if a version of re-publication is mentioned and which governing law applies.
FAQ
According to art. 382 para. 3 CO you are allowed to re-publish your scientific article already after 3 months from its first publication. However, there has never been a decision by a judge so far, on whether in such a case the contract or the law prevails.
You may choose the gold road of open access, which means that the publisher must immediately grant open access to the work. This usually happens in exchange of a publication fee to the publisher.
Only if this is foreseen by the publishing contract.
If the publisher is not in Switzerland and the governing law defined in the publishing contract is not Swiss, you must apply the rules of the second publication right of the country determined in the contract.
No. In this case you should apply the rules of the German second publication right.
No. You can apply the Swiss second publication right only if the Swiss jurisdiction is defined in the publishing contract.
