Open access and legal issues: Uploading: legal aspects
Ethical and legal rules to follow before uploading
First of all, you need to obtain the co-authors' agreement to upload, bearing on both the text and its illustrations.
" The author must check that they have all relevant authorisations to copy and show any illustrations featured in the document. For instance if I want to upload my thesis, which contains a photo taken by my colleague: I must ask for his authorisation to copy and circulate the said illustration before I self-archive my thesis."
Before publishing, the author owns all rights on their text (NO CONTRACT has yet been signed with a publisher), therefore no restriction applies on uploading it to an open archive. However, it is recommended to check with the publisher you wish to entrust with your article that they will not refuse your manuscript once it has been uploaded to an open archive.
After publishing, UNDER contract:
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Unless it is explicitly forbidden in the contract, the author has a right to circulate their "author's version" of the document (pre-publication, post author's publication) in an institutional archive.
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If the author has signed off an exclusive right conveyance to the publisher or a clause on the digital exploitation of the document, then the author must ask the publisher for an upload authorisation and abide by any relevant embargo rules.
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Some publishers prefer for their version to be uploaded (EDP sciences…)
As soon as your work is published, it is recommended to:
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Add the publishing references and DOI link on the open archive: Unique ID number for the digital version (example: 10.xxxx).
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Use defered upload in order to respect any period of embargo set by the publisher.
Do not upload confidential documents (patents) or documents meant for sale (books…)
Finally, you may read the conditions and restrictions for online circulation on the publisher's website, or on the database RoMEO
Currently, 93% of reviews allow self-archiving, including 63% which allow self-archiving post print. In Sherpa/RoMEO, publishers who allow pre-publication uploads are highlighted in green and yellow. Publishers who allow post-publication uploads are highlighted in blue and green. Finally, publishers who allow pre- and post-publication uploads are listed as "Green".
Source: CES documentation centre
Am I allowed to upload an article after it has featured in a review?
Many scientific reviews now accept "author's file" upload on open archives, pre or post publication, provided it is a purely scientific, non-commercial circulation.
Therefore uploading is possible when:
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No written right conveyance contract has been signed;
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The contract signed bears no mention of an exclusive right conveyance for all media or for digital media;
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The contract allows the circulation of the document after a set period of time (called moving wall): in that case you may upload your document once the set period of time has elapsed
However, when the contract includes an exclusive right conveyance for all media or solely for digital media, for the duration of the legal protection, you should get in touch with your publisher to get their written authorisation to upload, bearing on their current regulations on open access as presented on their website, or on any site dedicated to these issues:
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For publishers: SHERPA RoMEO
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For reviews: RoMEO ePrint
To conclude, scientific reviews and commercial publishers only own the rights which the authors have conveyed to them explicitly by written contract.