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20181026 o aweek_be-jdeene

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Presentation explaining the legal aspects of Open Science, with special attention to the new Walloon OA decree en the Belgian OA provision by Joris Deene (Everest-Law)

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20181026 o aweek_be-jdeene

  1. 1. Open access: legal aspects Joris DEENE Advocaat Everest Advocaten 26/10/2018
  2. 2. Titel General 3  Federal bill of 30 July 2018 (O.J. 5 September 2018), in force since 15 September 2018  new article XI.196 §2/1 in the Code of Economic Law  Decree of the French Community of 3 May 2018 regarding the introduction of an open access policy on scientific publications (O.J. 28 May 2018), in force since 14 September 2018  The Federal legislator is competent for intellectual property legislation (such as copyright)  The communities (Flemish, German, French) are competent for legislation on education and scientific recherche
  3. 3. Article XI.196 §2/1 CEL
  4. 4. Titel Article XI.196 §2/1 5  The author of a scientific article… -> no books, or chapter or contribution in a (congress) books  …which is the result of at least for 50% publicly funded research ..…  … keeps the right to make the manuscript available for free in open access to the public…. -> Manuscript = postprint version (after it has been peer reviewed)  even if (s)he has, in accordance with article XI.165, transferred or licensed (general of exclusive) his/her rights to a publisher of a journal… ….after the expiration of 12 months for humanities and social sciences and 6 months for other sciences starting the first publication in a journal….  …. If the source of the first publication is mentioned
  5. 5. Titel Article XI.196 §2/1 6  The publishing contract can provide a shorter term  This term can be extended by royal decree  This right can not be waived  This right is of mandatory law and is applicable regardless of the by parties chosen law if a connection with Belgium can be localized.  This right is also applicable on works created before the 15th of September 2018 which do not belong at that moment to the public domain.
  6. 6. Titel Article XI.196 §2/1 7  Article XI.196 §2/1 CEL is an addition to the current regulation of publishing contracts: not a new open access exception in favor of universities or research institutions  The author keeps the right to decide wither or not (s)he makes his/her work available in open access. Article XI.196 §2/1 is not an obligation for a researcher to put his/her article in an open repository of a university.  The new federal copyright legislation only gives the researcher the right to so do  Solution for universities and research institutions: additional legislation which obliges the author to make his/her work available in open access (so not a copyright issue any more but a mere administrative issue between a researcher and his institution)
  7. 7. Decree of the French Community of 3 May 2018
  8. 8. Titel Decree of 3 May 2018 9  The aim of this decree is to stimulate the open access circulation of the results of research financed by public funds (subsidized in whole or in part by the French community)  This decree is applicable on publications in a journal (published at least once per year)
  9. 9. Titel Decree of 3 May 2018 10  Researchers are obliged to deposit their publications in an institutional digital archive, in extenso, immediately after the approval of the article by the publisher (art. 5)  Institutions are obliged to create such a institutional digital archive (art. 6)  In the case of a nomination, promotion, grant of research funds, only the publications in this institutional digital archive may be used in the evaluation of the publications of a researcher (art. 7)
  10. 10. Titel Decree of 3 May 2018 11  Researchers have to allow open access of their publications deposited in the institutional digital archive (art. 8) -> with respect of the embargo period of 12 or 6 months (see also federal bill) -> during this embargo period the author can send a copy of his/her publications to an interested person on personalized request
  11. 11. Conclusie Vragen? Info: Joris.deene@everest-law.be 0032 9 334 94 73
  12. 12. Everest offers you high quality through specialisation and experience, both local and international. www.everest-law.be