Open Access in Spain: Legal framework illustrated with the experience of University Jaume I, by Cristina Pauner Part. 2 – blogdroiteuropéen

"Given the centrality/importance of this article, we will analyse its content.

1. The subjects: research staff. This article imposes an obligation to all who develop research activities, including research staff linked to the public university under career position, interim staff or contractual staff.
2. Funding from the public state budget. The authors have discussed whether we should include the remuneration of research staff as part of the research funding or the articles refers only to specific research funding. Some academics understand that it refers to the case that researcher perceives a help for the development of a research project carried out by the Ministry of Economy and Competitiveness or other Ministry thus being enough the perception of this help to consider that there is the obligation imposed by article 37.2 LCTI. But, on the other hand, we share the view of other authors who argue that this article refers to all costs of the research activity including the remuneration of the staff in the part which corresponds to the research side (50% of the total).
3. Article accepted for publication. This requirement places the obligation to publish in open access only on the official version of the researches that have been accepted for serial or periodical publications. That is, not all the results of research should be published in open access but only those who will be published in a traditional journal. This preserves the moral rights of the author (right of the author to the unpublished) and ensures the quality of the work which is required to publish in open access (only those works that have passed an evaluation and an editing process that ensures their scientific relevance).
4. The exclusive rights do not have been transferred to third parties. The article 37.6 LCTI establishes that the previous obligation is « without prejudice to agreements under which the rights to publication have been attributed or transferred to third parties« . This has been interpreted by the doctrine as the way this obligation become optional for the author (i.e. under the sixth paragraph the author should publish in open access unless he prefers to give exclusive rights to a publisher). For some authors the obligation to publish in open access is meaningless due to this paragraph and it becomes an option for the author and the publisher."