Institutional Repository Infrastructure for Scotland

Repository toolkit

• Home

• Contents
• Introduction and overview
• Tookit for researchers
• Toolkit for for institutions and repository managers
  • Why develop?
  • Costing models
  • Policies
  • Legal issues
  • Deposit workflow
  • Mandates
  • Funding bodies
  • Advocacy
• Useful resources

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• This work is licensed under a Creative Commons License for Scotland and a Creative Commons License for England and Wales
• Last updated 7 Dec 2007
• Version 1.0

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Toolkit for institutions and repository managers

Legal issues

While it is important not to get too bogged down with legal issues there are a number of areas that need to be taken into account when developing and managing a repository. It should be noted as that repositories are still a relatively new development there is no case law or precedent to turn to, and policies adopted by repositories relating to legal matters are generally based on commonly accepted practice within the repository community. This section of the toolkit does not constitute legal advice.

Licenses

These can be considered from two points of view – the depositor and the end user.

Deposit license

Many repositories have developed a deposit license outlining the conditions of deposit for depositors making their material available in the repository along with the responsibilities of the repository towards depositors. Often such licenses take the form of "click-thru" licenses whereby the depositor clicks a box to indicate that they have read and agreed to the license. Most institutions only require a depositor to do this the first time they deposit. In cases where material is being deposited in a repository by someone other than the author (e.g. an administrator, a secretary, a research student) an option can be provided for the depositor to agree to this by proxy on behalf of the author. Where a repository is offering a mediated service, i.e. material is deposited in the repository by repository staff on behalf of authors, one option may be to send the license to the author electronically before the first item is deposited and ask them to indicate that they have read it and agree with it.

A typical deposit license will include some or all of the following:

• An indication of the purpose of the repository and the fact that material held in the repository will be harvested by e.g. search engines
• An indication of the rights and responsibilities of the depositor, e.g. whether the depositor or the repository is held to be responsible for checking if a publication can be deposited in an institutional repository
• An indication of the rights and responsibilities of the repository

Some repositories have not developed a license to cover this, but instead have made a policy available on the repository web site.

Examples of licenses/policies:

• Bristol Repository of Scholarly Eprints (ROSE): Submission policy
• ePrints Soton (University of Southampton)

End use license

It is also useful to develop a license, or at least a policy, indicating what end users may and may not do. This can cover individual users and automated agents.

Examples of policies:

• Bristol Repository of Scholarly Eprints (ROSE): Data policy

Publisher policies

Establishing whether or not a particular publication can be deposited in an institutional repository is becoming simpler now that many publishers have developed specific polices relating to this question. The majority of the major publishers now permit authors to deposit their papers in an institutional repository so long as various conditions are adhered to. The most common of those are that only the author final version, and not the published version, can be used for this purpose; that there must be a link within the record in the repository to the published version; that a set phrase must be incorporated into the record in the repository. In addition, some publishers will not permit publications to be deposited until after a specified embargo period, e.g. 6 or 12 months. It is important to emphasise to potential depositors that signing a copyright transfer agreement does not (in most cases) prevent them from depositing their paper in a repository.

The SHERPA/RoMEO database of Publisher copyright policies and self-archiving is a useful tool for checking the terms and conditions of publisher agreements. However, not all publishers are listed here. If this is the case it is best to contact a publisher directly and ask what their policy is. This will involve identifying the most appropriate person to contact – usually a member of staff responsible for rights, copyright etc. If no contacts of this nature are listed another option may be to contact the editor of the journal. Some publishers may be willing to give permission on a case by case basis, but will not offer a blanket policy on deposit in repositories. Where a publisher does not reply to a request it is safest to take this as a negative response.

Over the past few years a number of publishers have changed their policies on open access, sometimes more than once. This can mean that what was permitted at one point may no longer be permitted. Most repositories have taken the decision not to remove material that was permitted at the time of deposit. However, it is important that you do not assume you know what a particular publisher's policy is without checking, as it may have changed since the last time you looked at it.

Most publisher polices on deposit in repositories relate to journal articles. In the case of monographs or book chapters it is usually necessary to approach publishers directly. If may be useful to involve the author in this process.

Author final versions

Also referred to by publishers as "author post-prints" or "author final manuscripts", many publishers will only permit authors to deposit this version of their articles in institutional repositories. Use of the published PDF version for this purpose is not permitted by many publishers. There is no single standard definition for "author final version", but it is generally taken to mean the version of a paper following peer-review and editing. In other words, the text can be exactly the same as the published PDF version. It is important to make it clear to authors that an "author final version" does not refer to the pre-print version. However, many authors may not have any other version other than copies that include publisher formatting. Perhaps a better way of describing it is the closest version an author has to the published version.

Publisher embargoes

Where publishers require an embargo period to be observed it is important that a procedure is in place for making the full text of an article available at the end of the embargo period. Some repository software has automatic alerting built in. If this is not the case, an alternative system needs to be developed. Ideally it is best to get the full text of such articles at the point of publication even if they cannot be made available until after several months. A decision also needs to be taken on whether the bibliographic details for the article should be made available in the repository during the embargo period or not. If they are included it is useful to indicate why the full text is not available, and when it will be available.

Take-down procedures

Even where best efforts have been made to check whether a publication can be made available in a repository or not the potential is there for mistakes to be made. It is therefore useful to have robust take-down procedures in place and to advertise this within the repository’s policy documentation. It is useful to keep any correspondence with publishers so that this can be used to demonstrate that permissions have been granted.

Other legal areas

Multiple authors: many papers have more than one author. In an ideal world all authors would give their permission before a paper was deposited in a repository. In the real world this is impractical and would be hugely resource intensive. Most repositories have adopted the practice that if one of the authors of a paper is a current member of the institution a paper can be deposited. If other authors are not keen they can advise their co-author or the repository, and if necessary the paper can be removed from the repository.

Inclusion of 3rd party copyright material within articles: Some publishers have made the point that where authors have been given permission to include 3rd party copyright material within their publications the right granted by the copyright owner does not necessarily extend to using this material in a copy of the publication held in a repository. This is indeed the case, and short of asking authors to seek permission again there is not much that can be done about this.

Establishing a successful repository involves some element of risk. Evidence so far has demonstrated that the risk of repositories being threatened with legal action is extremely low. However, it is advisable to take sensible steps to ensure that material is not made available when it should not be.