In the wake of the Dutch House of Representatives, the Senate has also adopted the amendment proposed by MP Taverne (in Dutch). The Dutch Copyright Act now provides the legal basis by which academic authors can make their research results available worldwide in open access. The amendment took effect as of 1 July 2015.
The law change is significant for all academic authors working at Dutch universities. In essence, it states that academic articles resulting from research that is wholly or partly publicly funded may be placed in open access by the author after a reasonable period of time. The author may not surrender this right. This means that university staff no longer need to stipulate or reserve this right in agreements with publishers to which Dutch law applies. They automatically hold and retain this right following the amendment to the law. They simply have to reach an agreement with the publisher about what constitutes a ‘reasonable period of time’.
The verbatim text of the amendment is as follows:
Article 25fa Copyright Act/law
The maker of a short scientific work, the research for which has been paid for in whole or in part by Dutch public funds, shall be entitled to make that work available to the public for no consideration following a reasonable period of time after the work was first published, provided that clear reference is made to the source of the first publication of the work.
These principles only apply under Dutch law. If British or American law applies, no recourse can be made to this new provision. If, on signing an agreement with the publisher, a Dutch author agrees that British or American law is applicable to a journal that is published internationally, he or she cannot have any recourse to the Dutch open access provision. It is therefore important in such cases to stipulate with these publishers that Dutch copyright law applies. It is also unclear whether the provision applies to journals that are published worldwide. In such cases, the acts of exploitation do not take place mainly or entirely in the Netherlands.