Statutory Provisions

Such a case is governed by the provisions of the publishing contract law in the Swiss Code of Obligations: 

• Art. 381 Para. 1 of the Code of Obligations: “The author's rights are only transferred to the publisher to the extent and for as long as is necessary for the performance of the contract.”
• Art. 382, Code of Obligations:
  • "Para. 1: Unless the editions of the work to which the publisher is entitled are out of print, the publishee is permitted to dispose elsewhere neither of the work in entirety nor of individual parts thereof to the publisher’s disadvantage
  • Para. 2: Newspaper articles and individual smaller papers in journals can be republished by the publishee at any time.
  • Para. 3: Contributions to collective volumes or larger contributions to journals may not be republished by the publishee before expiry of three months after the complete publication of the contribution.”

These provisions apply unless agreements to the contrary are concluded, and mean:

1. The author of an academic paper, such as an article in a journal, that deals with a topic in depth can publish it in a repository or other server three months after it has been published in full (Art. 382 Para. 3, Code of Obligations).
2. Reports with a topical relevance, such as newspaper articles, can be publicly deposited by the author in a repository or other server at any time (Art. 382 Para. 2, Code of Obligations).
3. The author cannot publicly deposit works such as monographs or textbooks in a repository in competition with the publisher unless the edition is out of print (Art. 382 Para. 1, Code of Obligations). Versions that cannot be cited correctly and that do not constitute genuine competition are permitted, such as files without the original page numbers in subjects where citations give the exact page number.

The author’s version (accepted manuscript) can certainly be used as full text. According to the expert opinion by Reto Hilty and Matthias Seemann, the version published by the publisher can also be used (publisher’s pdf), but without the publisher’s logo, which is protected by trademark law or similar. However, there is no established judicial practice on this question of the format.

A researcher sends his contribution to a collective work to a publisher with the request to publish it, which the publisher does. There are no other agreements. After publication, the researcher asks the publisher whether he may make the publication openly accessible in his repository. The publisher categorically refuses. Does the researcher have to comply with this, or can he invoke the Code of Obligations (Art. 382 Par. 3 OR), which allows him to deposit the publication after a three-month embargo period?

If the researcher asks the publisher whether the deposit in a repository is permitted, and if this is denied by the publisher, then there is obviously no agreement between the parties on this point; no agreement has arisen in this respect. If there is also no other agreement on this point, the statutory provisions and thus also Art. 382 para. 3 OR apply. Therefore, in the above case, the researcher may make his publication available in a repository three months after publication.