Liability law

New Internet-based forms of scholarly communication raise questions about who is liable for infringements in connection with information which is made openly accessible online. By determining the possible liability consequences for repository operators and for authors who make their work available on their own private websites, liability risks can be assessed in advance and precautions - contractual and otherwise - can be taken to limit them.

Liability risks when operating institutional repositories

An institutional repository's tasks usually comprise depositing, administering and making accessible to the public documents produced by the institution's scholars or researchers. When a document is submitted to an institutional repository it is not made available online immediately. Rather it must first undergo quality control procedures. The scope of these procedures varies from repository to repository. They can include checking the metadata, key-word indexing and cataloguing, and the evaluation of the content. For more information on quality assurance in electronic archives in general, see Andermann and Degwitz (2004, p. 53 ff.).

Legal consequences for the operator of the repository

If a repository operator makes scientific works available without holding the necessary copyright, he commits a breach of copyright. In such a case, the copyright holder has at his disposal the legal remedies pursuant to Arts. 61 et seq. of the URG (Swiss Copyright Law). In particular, an action can be brought against the operator for the elimination of the infringement (Art. 62 Para. 1 b, URG). Thus the operator can, for instance, be obliged to remove the work in question from the repository.

Financial consequences are also possible on the basis of actions deriving from the OR (Swiss Code of Obligations), as reserved by Art. 62 Para. 2 of the URG. The obvious measure here is an action for damages with which for instance the publisher can claim the refund of the profit lost through the breach of copyright from the repository operator (Art. 62 Para. 2, URG in conjunction with Arts. 41 et seq., OR). However, the publisher must prove the difference, which is probably difficult in practice because it is hardly possible to establish causality between the activities of the repository operator and the losses incurred by the publisher.

An action can be filed by anyone who holds the infringed copyright subpowers (Art. 62 Para. 1, URG) or who holds an exclusive licence to these powers (Art. 62 Para. 3, URG). The publication of a work in a repository involves the online rights, that are as a matter of principle held by the author or the publisher. Hence it is mostly the author or the publisher that is entitled to file the action.

The defendant can be both the operator of the repository but also any other persons who have participated in the copyright infringement. In other words, it is not only the main infringer but also an instigator or an accessory who can be sued (cf. Art. 50 Para. 1, OR). If the online rights to a work are held for instance by a publisher, and if the author has nevertheless published his work in a repository, an action can be brought both against the operator of the repository and against the author. In the case of a claim for damages, the operator and the author are jointly and severally liable (Art. 50 Para. 1, OR). The plaintiff can choose the defendant against whom he wishes to proceed and whether to claim a whole or a part of the losses from this person (Art. 144 Para. 1, OR).

Transfer of the legal consequences: Recourse to the author

The repository operator can by contract transfer to the author the risk of being sued for damages by third parties for infringement of rights. This is done by means of a contractual clause in which the author undertakes to indemnify the repository operator in the event of third-party claims, i.e. to assume the costs incurred and any damages payable.

From a practical point of view, it should be noted that such a transfer of the risk to the author can reduce the attractiveness of the repository and that there might be fewer authors willing to make their work publicly accessible in the repository. The publishing contract between the author and the publisher does not always make it immediately clear whether the author is authorised to deposit the work in a repository in parallel with publication. For this reason, the manner in which liability for infringements of rights is distributed is a central aspect of the agreement between the author and the repository operator.

If the repository operator and the author have not included a provision in the agreement dealing with liability for rights infringements, the repository operator can only have recourse to the author to the extent that the latter is jointly responsible for the copyright infringement (and to this extent can also be sued directly). Such a joint responsibility applies as a matter of principle if the deposit is made by the author himself or with his consent. The shares to be assumed by the repository operator and the author are determined by judicial discretion in the specific case (Art. 5 Para. 2, OR).

The repository operator is to be classified as a content provider, whose performance goes beyond mere technical storage and making available as provided by a purely access provider. However, even the content provider is only subject to liability to the extent that he has failed to take possible and reasonable measures to prevent infringements of rights. The repository operator can be expected to clarify the copyright entitlement to the individual works and to attempt to remedy any infringement of rights. However, the repository operator could not additionally be expected to acquire knowledge of the content of each individual work and to examine it for infringements.

Liability risks involved in self-archiving

Self-archiving in the sense of self-posting refers to the individual, non-standardised archiving and making available to the public of publications, for example on a faculty, institute or private website.

The main breaches of rights that can occur when self-posting are the infringement of  intellectual property rights, for example third-party copyrights, and the violation of privacy rights. When university staff members self-archive their works on their personal websites, the question of the university's liability does not arise provided the university does not operate these websites and is not responsible for their contents.

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