The golden and the green way of Open Access
The Open Access policy and practice generally distinguishes between a golden and a green way of publication.
The golden way refers to the submission of scientific articles to Open Access journals right from the start, but it principally also refers to Open Access publications of other original contribution types (monographs, collective works etc.). Like texts that are published in printed form, these texts will usually be subject to a process of quality assurance, in most cases this is a peer review process. In most cases a publication agreement is signed with the publishing house, specifying the conditions the authors grant the publishers, as well as terms and conditions for the free use of the publication. Such agreements are often supplemented by a licence for Open Access publications, whereby the authors can grant the users a wide range of rights.
The green way to Open Access specifies a simultaneous or retrospective publication of documents on an institutional or scholarly Open Access document server. This mainly concerns Preprints and postprints, but also other document types such as monographs, research or conference papers.
A Preprint corresponds to a manuscript that has been submitted to a journal (or publication of monograph). A preprint is a scientific piece of work that has not been reviewed by peer experts, hence its quality has not been evaluated by peers and its publication has not been recommended yet. Generally the intellectual property rights are still held by the author in such cases. Hence, the publication of preprints does not pose a problem.
Postprints are defined as authorised versions with proven quality that have been cleared for publication but without the publishing house layout. As long as no other agreement has been contracted, the author of a journal article or unpaid-for contribution to a collective work will normally be returned the user right to the publication of a postprint. If, for instance for reasons of harmonising citation frequency, the author wishes to use a publishing house version (layout, particularly pagination) he or she will need permission from the publishing house. In this case, it might help to consider that citation frequency is of interest for the publishing house, too, as an increase in the citation frequency will result in a higher approval of the journal article/monograph.
§ 41 UrhG (Urheberrechtsgesetz, German copyright law) is particularly applicable in cases where a work is out of print, or where property rights are insufficiently exploited by the publishing house. The respective section outlines that, two years after the publication of a work by a publishing house, an author can claim his or her right to the publication if the work is not, or insufficiently, exploited by the publishing house itself. For instance, this is the case if a second edition of the work is not published within two years. If an author?s appeal for publishing another edition is to no avail, he or she can re-publish a monograph by Self-Archiving.
In case of publications for which a publishing agreement was signed before January 1st, 1995 (i.e. for the period between January 1st, 1966 until December 31st, 1994), authors were allowed to claim their right to an online publication by December 31st, 2007, by using such rights actively and transferring property rights to repositories etc. or by disagreeing to an automatic transmission of such rights to the publishing houses (§ 137 l transition regulations for new forms of use). (This deadline could be protracted until March 31st, 2008 for re-negotiations with the publishing house.)
Since the termination of this deadline for conferring property rights, the online exploitation rights for publications are held by the publishing houses. It is not permitted to transfer the rights to third parties retrospectively without the publisher's consent.