1.
Open access: legal aspects
Joris DEENE
Advocaat Everest Advocaten
26/10/2018

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.
Article XI.196 §2/1 CEL

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.
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.
Titel
Article XI.196 §2/1
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 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.
Decree of the French Community of 3
May 2018

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.
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.
Titel
Decree of 3 May 2018
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 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.
Conclusie
Vragen?
Info:
Joris.deene@everest-law.be
0032 9 334 94 73

12.
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