Legal Issues in Austria

Numerous legal issues must be considered when implementing Open Access strategies or operating open-access repositories and open-access journals. These pages furnish information on the Austrian legal framework that is relevant when implementing the Open Access paradigm.

In practice, both authors and repository operators are frequently faced with the question of what legal provisions must be observed when making documents publicly accessible in full-text servers. Most of these provisions are to be found in or are based on the Austrian copyright law, which is the statute most frequently consulted when it comes to Open Access.

By now, most publishers allow their authors to self-archive their articles in institutional repositories or on their own personal websites. However, conditions and restrictions are frequently imposed. For example, authors are often obliged to observe an embargo period between the publication date and the date on which the document is made openly accessible online. The SHERPA/RoMEO Listings provide information on the self-archiving policies of individual publishers. Many of those authors whose publishers do not yet allow self-archiving supplement their standard publishing agreements with contract addenda which enable them to provide open access to their work in parallel with publication. Such addenda can also be used to avoid embargo periods.

In order to give authors and users of open-access contributions legal certainty, such contributions should be distributed only under an open-content licence. Repository operators must pay particular attention to the liability risks involved in the operation of a repository. Moreover, data-protection aspects play a very important role when it comes to open access to research data.

Adaptation of content to Austrian law: Dipl.-Jur. Seyavash Amini (Please note that the content provided under "Legal issues" is intended for information purposes only and does not constitute legal advice.)

Copyright

The copyright law of a state applies only within its borders. Hence, for example, the provisions of Austrian copyright law apply only on Austrian national territory and those of  German copyright law are applicable only on German territory. This is due to the fact that the   international law of copyright and related rights is based on the principle of territoriality. According to this principle, the protective reach of national copyrights is limited spatially to the territory of the state in question, with the result that authors do not acquire uniform, globally valid copyright. Rather, they can benefit from the copyright protection that applies in each country. Hence a whole bundle of territorially limited national copyrights are available to them.  

The limited reach of national copyright provisions also has conflict-of-laws implications  insofar as the law which is applied is that of the country for whose territory protection is claimed. This is referred to as the authoritativeness of the law of the protecting country or the principle of the country of protection  (lex loci protectionis). It follows from this principle that the coming into existence, the substance, and the subsistence of protection rights are governed by the legal system of the country for whose territory copyright protection is sought. However, because of international treaties and conventions on copyright and the considerable headway that has been made in harmonising copyright law, an (almost) uniform level of protection applies, particularly in Europe. Therefore, to a certain extent at least, the information on German copyright law applies also to copyright legislation in Austria. Nonetheless, there are a number of significant - and sometimes major - differences between the legal systems of the two countries.

The legislation governing copyright in Austria is the Federal Law on Copyright in Works of  Literature and Art and on Related Rights, in short the Copyright Law (UrhG). This law protects the rights of authors in their works and related rights. While copyrights as such can be transferred by will or inheritance, they are not otherwise transferable (Section 23 UrhG). However, authors can grant to others the right to use their works in some or all of the ways laid down in Sections 14 -18a UrhG.

Copyright protects works and other similar activities. Rights and obligations under copyright law hinge primarily on the existence of a work. In Austria, works within the meaning of copyright law are "original intellectual productions in the fields of literature, music, art and cinematography" (Section 1 of the Austrian Copyright Law (UrhG)).

An original intellectual production is any perceptible result of intellectual activity that displays a degree of individuality and level of creativity which sets it apart from the commonplace. However, the required standards of individuality and creativity are very low and are deemed to be fulfilled even if the work displays only a minimal degree of originality. As a result, even simple and trivial achievements are eligible for copyright protection irrespective of their aesthetic, scientific or other value provided they can be classified as literature, music, art or cinematography. Adaptations (Section 5 UrhG) and collective works (Section 6 UrhG) are also protected.

Related or neighbouring rights protect artistic, scientific, or commercial achievements that are not protected by copyright in the narrow sense of the word because they lack individuality and creativity. These related rights cover recitations and performances of works of literature and music (Sections 66 to 72 of the Austrian Copyright Law (UrhG)); the production of photographs and moving pictures (Sections 73 to 75 UrhG); the production of audio recordings (Section 76 UrhG); the transmission of sounds or images by broadcasting (Section 76a UrhG;); the publication of previously unpublished works in which the copyright has expired (Section 76b UrhG); and the creation of investment-intensive databases  (Sections 76c to 76e UrhG). These related rights differ from copyright in the narrow sense in that the term of protection of related rights is shorter and the scope of application is narrower.

Copyright grants a bundle of moral and economic rights to the author. Moral rights protect the author's intellectual and personal relationship with the work, while exploitation rights guarantee his or her participation in its commercial exploitation.

Copyright protection begins at the moment of creation of the work. No registration or other action is required. Copyright terminates 70 years after the death of the author, or in the case of joint works, the] last surviving joint author (Section 60 of the Austrian Copyright Law (UrhG)). In contrast to commercial protection rights (especially trademark, sample, and patent rights), the term of copyrights and related rights cannot be extended. A work, the term of protection of which has expired, can be freely used by others. For example, it can be printed, adapted, reproduced or made available on the Internet at will. Nonetheless, caution must be exercise in this regard as several rights holders with rights of different duration may be involved in the work. Take a piece of music, for example. The copyrights of the composer or the lyricist may have expired long ago, while the related rights of the musicians and the producers may still be extant if the piece is a new interpretation. In the case of texts that have been translated or otherwise adapted, not only must the term of protection of the author's rights be observed, but also possibly the rights of the translator or adapter. With regard to the term of protection of photographs, a distinction must be made, where appropriate, between the rights of the photographer and the rights in the photographed object. Only when all protection rights in an object have expired can it be freely used in its entirety.

When calculating the term of protection, the year in which the event that determines the beginning of the term - in this case the death of the author - occurs is not counted. In other words, terms of protection always begin on the first of January of the following year.

Works that are not protected by copyright and are thus freely usable constitute unprotected works (Section 7 of the Austrian Copyright Law (UrhG)). Such works include laws, orders, official decrees, public notices, court decisions and other official works produced for official use. However, they do not include materials such as examination questions, sample solutions, lecture notes etc. published by higher education institutions or other bodies entrusted with carrying out state examinations.

Other categories of material that are not eligible for copyright protection include ideas, thoughts, concepts, methods, and game rules. This is because copyright protects only the fixed expression or manifestation of intellectual content but not the intellectual content as such. Hence, for example, ideas for a course or a research project, a didactical concept, or prerequisites for the successful completion of a course are not eligible for copyright protection. Nor are scientific findings and teachings such as dogmas and formulae, scientific or didactic methods, laws of nature, general knowledge, individual chords, sounds, a style, a verse form, geometric symbols, inspirations from nature, and saga material. Hence, all these materials can be freely used. The same applies to actual circumstances and events. Therefore anything produced by nature or history is not protected by copyright. This includes biographical material, historical events, current events, factual news, laws of nature and measurement results. Accordingly, a scientific work is never eligible for copyright protection on the basis of the historical, economic or social data, facts and theories presented therein because this material is always freely usable. Rather, copyright protection accrues only to the concrete representation, structure, selection of facts and the line of argument, in other words to the elaboration as such.

 

Who is the author? And how does copyright protection arise? These questions are answered briefly and to the point in Austrian Copyright Law (Section [§] 10 (1) UrhG) pursuant to which the author of the work is the person who created it! Two statements can be deduced from this "creator principle":

First, the author is invariably the person who directly produces the work. This also makes clear that the author is always a natural person and can never be an animal, a machine, or a legal entity such as a university or a company because none of these can engage in the intellectual activity that gives rise to copyright. However, a legal entity can acquire rights to use the works of others and thereby become the holder of derived rights of use in a work or authorisations to use a work. Nonetheless, the natural person who created the work always remains the author. This also applies to a ghostwriter who writes on behalf of another person. The person who commissioned the work and under whose name it appears cannot become the author because he or she did not make a substantial creative contribution to it. The ghostwriter continues to be the author and to have claim to the copyrights. What is more, he or she cannot waive these rights (Section 19 (1) UrhG). What he or she can do, however, is to legally forgo being designated as the author (Section 20 (1) UrhG).

Second, according to the creator principle, copyright protection arises by law and thus comes into being automatically when the work is created. Hence neither registration with a public or private agency nor a sovereign act are called for. The advantage of the fact that copyright arises automatically is that a work is immediately and effectively protected without any additional expense or formal effort on the part of the author.

Joint authorship

If two or more persons have jointly created the work in such a manner that the individual contributions cannot be exploited separately, the provisions regarding joint authorship apply  (Section 11 of the Austrian Copyright Law (UrhG)). Joint authors are, for example, the authors of a jointly written essay. Joint authorship can also arise when copyright devolves on two or more heirs after the death of the creator of the work (Section 23 (4) UrhG). The combination of works of different kinds - for example a piece of music and a poem - does not in itself give rise to joint authorship (Section 11 (3) UrhG).
If joint authorship exists, all joint authors must agree to any exploitation of the work, for example to its being made available via the Internet, unless otherwise agreed among themselves. In order to prevent the exploitation of a work being made impossible because one joint author refuses to consent to it, Austrian copyright law provides for the institution of legal proceedings to obtain this consent where this refusal is unjustified (Section 11 (2) sentence 3 UrhG). Each joint author is separately entitled to institute proceedings for breach of copyright (Section 11 ( 2) sentence 1 UrhG).

Authorship of contributions to a collective work

A divisible combination of works, for example a collective work (Section 6 UrhG) that combines the contributions of individual authors in one volume, does not give rise to joint authorship. Accordingly, unless otherwise contractually agreed, the author of an individual contribution has the right to decide independently of the editors and the authors of the other contributions whether and how his or her contribution is to be exploited. The same applies, for example, when a song text is set to music. Unless otherwise agreed, the author of the text is entitled to commission a new score without the consent of the original composer and the composer has the right to independently commission new lyrics.

Assistants and mentors

A distinction must be made between authors or joint authors on the one hand and assistants or people who merely give suggestions on the other. As only a person who has made a substantial creative contribution to a work can be deemed to be an author, suggestions and tips provided, for example, by a thesis supervisor do not suffice to establish joint authorship. This is also the case when the supervisor suggested the topic of the thesis. A person who gives tips or makes suggestions is not an author. Likewise, the purely routine activities typically performed by research assistants or student assistants, for example literature searches, the production of indices and bibliographies, the elaboration of footnotes, and copy editing do not constitute a claim to joint authorship. However, it should be noted that not only are university members entitled to have their names mentioned in connection with a work when they are authors or joint authors, but also their names must be mentioned when they have merely made an independent scientific or artistic - not necessarily creative - contribution to the work.

Rights holders / Authors in employment or service

The transferability of rights of use constitutes the legal basis for the fact that publishers, recording and film studios, performance rights societies, universities etc, which cannot be authors per se, can exploit works protected by copyright. Hence, in practice, the author and the rights holder are frequently not one and the same person. Especially in employment, service or contractee-contractor relationships where persons are paid to create works, it is customary that the authors are not entitled to dispose freely of these works for exploitation as the exploitation rights therein devolve on the employer or commissioning person/organisation.  Except in the case of computer programmes and database works (Sections 40b ff., 40f ( 3)  UrhG), the Austrian Copyright Law does not contain any special provisions in this respect. Hence, employers or commissioning persons/organisations are advised to have exploitation rights contractually granted to them. However, in the absence of an explicit agreement, a tacit transfer to the employer or commissioning person/organisation of exploitation rights in works created in fulfilment of contractual obligations is assumed provided the creation was necessary to fulfil the purpose of the contract. However, a tacit granting of rights cannot be assumed where a work was not created in execution of duties under a contract of employment or service or in performance of an order placed by a contractee.

Clauses transferring exploitation rights are also found in the standard employment contracts of higher education institutions. If no such agreement exists between the institution and the individual scientis in this regard, and if the latter creates a work such as a powerpoint presentation or an e-learning unit, he or she should check whether an obligation to produce the work in question transpires from the legal relationship on which the employment contract  is based. If this is so, as, for example, in the case of a project assistant hired specifically to generate e-learning content, a tacit transfer of exploitation rights to the institution is to be assumed, with the result that the ownership of rights in the work, and hence also the right to dispose thereof, devolve on the institution. In contrast to project assistants or other members of the intermediate level academic staff with little discretionary powers, a tacit transfer of exploitation rights to the employer cannot be assumed in the case of university professors, lecturers etc. in the absence of an explicit agreement. This is due to the fact that freedom of scientific research, which is guaranteed in principle, requires that scientists must be able to dispose independently of the results of their work and decide themselves whether and in what way their works are to be published or otherwise exploited. Hence, in the absence of an exploitation clause in the employment contract of, for example, a professor, a higher education institution must conclude a separate licence agreement if it wishes to exploit content produced by him or her. This also applies to works that research assistants, student assistants etc. create outside the framework of the execution of their duties. If, for example, a university wishes to make the doctoral dissertations or master's theses of their employees or students accessible in its own repository, it must acquire the necessary rights by means of a licence agreement with the author. If an author transfers all exploitation rights exclusively, he or she no longer has any rights of disposal. These rights are held by the transferee(s). If the author licenses, or has licensed, the content under an open-source or open-access licence such as Creative Commons, this licence is then invalid.

Werden Verwertungsrechte nicht mit Ausschließlichkeitswirkung übertragen, spricht man nach dem Sprachgebrauch des österreichischen Urheberrechts von einer Werknutzungsbewilligung (§ 24 Abs. 1 S. 1), welche relativ wirkt. Dem Urheber steht es frei, Werknutzungsbewilligungen an eine Vielzahl von Personen zu erteilen. Der Inhaber einer solchen Bewilligung ist berechtigt, das Werk neben dem Urheber und möglicherweise neben anderen Berechtigten auf die ihm im Rahmen der Werknutzungsbewilligung erlaubten Art zu nutzen. Beispiele für Werknutzungsbewilligungen sind Vortrags-, Aufführungs,- Sende- und Standardsoftwareverträge.

Werden Verwertungsrechte mit Ausschließlichkeitswirkung (exklusiv) übertragen, spricht man nach dem Sprachgebrauch des österreichischen Urheberrechts von einem Werknutzungsrecht (§24 Abs. 1 S. 2), das ein absolutes Recht ist. Der Urheber kann ein Werknutzungsrecht nur an eine Person erteilen. Der Inhaber eines Werknutzungsrechts ist berechtigt, das Werk unter Ausschluss aller anderen Personen einschließlich des Urhebers auf die ihm im Rahmen des Werknutzungsrechts erlaubten Art zu nutzen. Beispiele für Werknutzungsrechte sind Wahrnehmungsverträge mit Verwertungsgesellschaften, Verlagsverträge oder Individualsoftwareverträge. Insofern kann auch hinsichtlich einzelner Verwertungsarten differenziert werden. Beispielsweise ist es möglich, das ausschließliche Werknutzungsrecht an der "Online-Verwertung" (Zurverfügungstellungsrecht, § 18a UrhG) und eine nicht ausschließliche Werknutzungsbewilligung zur Verbreitung des Werkes auf materiellen Trägern (Verbreitungsrecht, §16 UrhG) zu erwerben.

Urheberrechtsfragen beim Einsatz von Multimedia an Hochschulen.
[Copyright Issues Relating to the Use of Multimedia in Higher Education Institutions] (A practical guide taking the University of Vienna as an example.)

Österreichische eLearning-Rechtsportal [Austrian eLearning-Law Portal]

Knowledge Base Law Copyright

Making documents openly accessible in repositories

A question which both authors and repository operators are frequently obliged to ask themselves is whether it is permissible to make a particular document openly accessible in a repository. Fortunately, the answer to this question is often an unequivocal ¨Yes!¨.

Nowadays, most publishers have no objections to their authors' depositing a preprint or postprint of their article in an open access repository, a process which is referred to as self-archiving. The SHERPA/RoMEO listings provide details of publishers' self-archiving policies. It is fairly unlikely that publishers who do not allow self-archiving of the preprint or postprint version would take legal steps against one of their authors to have the document deleted. However, to be on the safe side from a legal point of view, it is advisable to check on a case-by-case basis whether there are any legal impediments to self-archiving. The following material is intended to provide an overview of the legal aspects which must be considered in each case.

If an agreement on copyright was concluded (for example, as part of a written publishing agreement) when the article was published in the journal, then the terms of that agreement will apply.

In the Austrian judicial area too, the answer to the above question depends primarily on the terms of the publishing agreement between the author and the publisher. As a rule, publishers require authors to transfer all exploitation rights to them and do not permit them to reserve, for example, the right to make the work publicly available [online]. Hence, it would normally be unlawful for the author to make the work available in a repository or on his or her personal website in parallel with publication.

If the publishing agreement does not explicitly regulate this matter, the agreement must be interpreted.

However, under Section 36 (2) of the Austrian Copyright Act ((Ö)UrhG), which applies also to journal articles, even an exclusive right of reproduction and distribution granted to the publisher in respect of contributions to periodically published collections (and hence in respect of journal articles) expires one year after the end of the calendar year in which the contribution appeared. As a result, from that point onwards (i.e. two years at the latest and one year and one day at the earliest after the article is published), the author is once again free to decide on the reproduction and dissemination of the contribution in question. However, it is problematic that the said provision does not explicitly refer to non-corporeal rights, in other words to the so-called 'making available right' (Section 18a (Ö)UrhG, 'online right'), which is of interest here. Therefore it does not grant absolute legal security.

Section 36 of the Austrian Copyright Act ((Ö)UrhG) states:

Contributions to collections
Section 36. (1) If a work is accepted as a contribution to a periodical collection (newspaper, journal, yearbook, almanac, etc), the author shall retain the right to reproduce and distribute the work elsewhere unless otherwise agreed or unless it is evident from the circumstances that the editor or the publisher of the collection is supposed to acquire the right to reproduce and distribute the work in [the collection] as an exclusive right in the sense that the work may not be reproduced or distributed elsewhere.
(2) In the case of contributions to a newspaper, such an exclusive right shall expire immediately after the publication of the contribution in the newspaper. In the case of contributions to other periodically published collections and contributions that are accepted for a collection that is not published periodically and for which the author is not entitled to remuneration, such an exclusive right shall expire after the lapse of one year from the end of the calendar year in which the contribution was published in the collection.

It should be noted that in an international context, for example in the case of a repository located abroad, a foreign legal system may apply.

If an agreement on copyright was concluded (for example, as part of a written publishing agreement) when the collective work was published, the terms of that agreement will apply.

In the Austrian judicial area too, the answer to the above question depends primarily on the terms of the publishing agreement between the author and the publisher. As a rule, publishers require authors to transfer all exploitation rights to them and do not permit them to reserve, for example, the right to make the work publicly available [online]. Hence, it would normally be unlawful to make the work publicly accessible in a repository or on one's personal website. If the publishing agreement does not explicitly regulate this matter, the agreement must be interpreted. When doing so, it must be asked what the parties would have agreed upon if, when concluding the contract, they had wished to regulate the matter in a fair and reasonable manner. When interpreting the contract, the publisher's editorial policy should be consulted - if available. In the case of a typical publishing agreement that does not relate to a periodical collection such as newspapers, journals or other regularly published collective works, one will usually have to assume in case of doubt an exclusive and comprehensive grant of rights to the publisher. Hence, even in the absence of explicit contractual regulation of this matter, if the author makes a contribution that has been accepted for publication in a non-periodical collective work available in a repository or on his or her personal website, this will be deemed unlawful. However, it should be noted in this connection that under Section 36 (2) of the Austrian Copyright Act ((Ö)UrhG), in the case of contributions included in a non-periodical collective work, for example a festschrift, for which the author was not entitled to payment, an exclusive right granted to the publisher to reproduce and distribute the work expires upon the lapse of one year after the end of the calendar year in which the contribution appeared. Hence, from that point onwards (i.e. two years after the date of publication at the latest and one year and one day after publication at the earliest), the author is once again free to decide on the reproduction and distribution of the contribution. However, it is problematical that the said provision does not explicitly refer to non-corporeal rights, in other words the right to make a work available [online] (Section 18a ((Ö)UrhG) 'online right'), which is of interest here, and does not therefore grant absolute legal certainty.

It should be noted that in an international context, for example in the case of a repository located abroad, a foreign legal system may apply.

If an agreement on copyright was concluded (for example, as part of a written publishing agreement) when the article was published in the newspaper, then the terms of that agreement will apply.

In the Austrian judicial area too, the answer to the above question depends primarily on the terms of the publishing agreement between the author and the publisher. As a rule, publishers require authors to transfer all exploitation rights to them without reserving the right, for example, to make the work publicly available [online]. Hence, it would usually be unlawful for the author to make the newspaper article available in a repository or on his or her personal website in parallel with publication.

If the publishing agreement does not explicitly regulate this matter, the agreement must be interpreted. However, it should be borne in mind in this connection that in Austria there is a collective agreement for the editors, trainee editors and reporters employed by Austrian daily newspaper. Under this agreement, the rights of use are, as a matter of principle, transferred to the respective publisher "exclusively and without restrictions in terms of time, space, or content". The collective agreement for regular freelance contributors contains a similar provision (cf. Kucsko, Urheberrecht [Copyright], 1st edition. 2008, p. 515).

However, under Section 36 (2) of the Austrian Copyright Act ((Ö)UrhG), the editor's or publisher's exclusive right in respect of contributions to a newspaper expires after the article has been published in the paper. Hence, from that moment on, the author is once again free to decide on the reproduction and dissemination of the contribution. However, it is problematic that the said provision does not make explicit reference to non-corporeal rights, i.e. to the right to make the work available (Section 18a 'online right'), which is of interest here, and therefore does not grant absolute legal security.

It should be noted that in an international context, for example in the case of a repository located abroad, a foreign legal system may apply.

If an agreement on copyright was concluded (for example, as part of a written publishing agreement) when the work was published, the terms of that agreement will apply. Should the agreement not regulate the matter explicitly, then it must be interpreted. In any case, it is advisable to enquire with the publisher before self-archiving the work in an OA repository.

It should be noted that in an international context, for example when the repository is located abroad, a foreign legal system may apply.

Monographs and collective volumes can be self-archived in institutional or subject-based repositories or published in open access with university presses who have an OA policy. While institutional repositories and university presses usually accept only the works of their own members, subject-based repositories impose no such restrictions. The institutions' websites usually provide comprehensive support for authors. Whether it is legally permissible to make a published monograph openly accessible via a repository depends on the rights which you, as the author, granted to the publisher. You should consult your publishing agreement and/or enquire with the publisher. Some publishers are increasingly well-disposed towards the Open Access idea and consent to the self-archiving of monographs in OA repositories.

Austrian copyright law contains no such provision! Hence to answer the question it is necessary to interpret the contract or, where applicable, consult the addendum. The purpose of the contract is of particular relevance is this regard. A point that should be borne in mind is that, in case of doubt, even a comprehensive grant of rights must be reduced to the dimensions that appear necessary for the practical purpose of the proposed use of the work. Nonetheless, it can be stated as a general rule that where future types of use are not set out in the contract, a restrictive interpretation is indicated. Hence the Austrian Supreme Court of Justice (OGH) found that, despite the fact that a publishing agreement dating from some decades back granted the publisher an unlimited right of reproduction, this did not include the right to make the work available online (OGH 12.08.1998 - Vienna Group). The OGH also held that the use of photos on the Internet was not covered by a conclusive grant of rights (OGH 04.09.2007 - Internet use). See: Walter, Österreichisches Urheberrecht, Handbuch [Austrian Copyright Law, Handbook], Part 1, 1st edition, 2008, p. 802).

With the regulation of a secondary publication right newly introduced by the Copyright Law Amendment 2015, which adopts an essentially identical provision of German copyright law, the legislator grants the author of a scientific contribution published in periodicals and predominantly financed from public funds the right to make it publicly accessible after twelve months even if the author had previously granted the corresponding rights to a publisher or editor. The prerequisite for this, however, is that this new publication does not serve commercial purposes on the one hand and on the other hand is based on the submitted version of the author himself, i.e. does not contain any significant changes made or initiated by the author or publisher, as may have been the case, for example, during the process of copy-editing.

In concrete terms, this is not only intended to prevent publications already funded with public money from having to be purchased again by public bodies at a later date, this provision also explicitly aims to provide legal certainty for authors in the case of "Open Access publications" in order to make the results obtained publicly accessible without having to check with the publisher.

The author's secondary publication right thus created may have considerable effects on exploitation within the framework of academic teaching: Even though the right can only be exercised by the author himself in his work, he is now entitled to republish the work for the purpose of making it publicly accessible, for example under an Open Access licence, and thus to permit it to be used in teaching courses both analogously and digitally in a legally compliant manner. This applies not least to teachers themselves who, by publishing a work in a periodical, have transferred relevant exploitation rights exclusively to a third party by means of a contract.

There is therefore no danger of infringing the rights to use another's work in this context. However, it must be absolutely observed that no commercial purpose may be pursued, the manuscript version of the author must be taken as a basis and the source of the first publication must be indicated.

See on secondary publication right: https://www.wu.ac.at/bibliothek/service/open-access/was-ist-open-access/zweitverwertungsrecht/ (available only in German)

A brief overview of further innovations resulting from the copyright amendment Uhr-Nov 2015 is available here: https://www.uibk.ac.at/zentraler-rechtsdienst/neuerungen-aufgrund-der-urheberrechtsnovelle-2015.pdf (available only in German)

A guide to copyright and digital media: https://www.openeducation.at/fileadmin/user_upload/p_oea/Praxisleitfaden-Urheberrecht_Uni_Wien_2017-02.pdf (available only in German)

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.

Sections 13 - 19 of the Austrian E-Commerce Act (ECG) are of relevance in relation to liability issues. To a large extent, the assessments on which these provisions are based are the same as those on which the norms of the German Telemedia Act (TMG) are based.

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 et sqq.).

Possible infringements which can occur when operating a repository include the violation of intellectual property rights such as copyright and neighbouring rights, patent rights and trademarks, and personality rights. Weber (2006, p. 152-173) provides a detailed account of the possible liability scenarios which can arise in this context.

In connection with the liability risks of repository operators, mention should be made of the  principles of "liability as accessory" (Stoererhaftung). According to these principles, besides the actual infringer or participant, anyone who merely contributes knowingly and in a causally adequate manner to an unlawful infringement is also liable. The mere support of the act of a solely responsible third party constitutes a contribution to an infringement provided the assisting party could have prevented this act by legal means. Moreover, for adequate causation to exist, it suffices if the wrongdoer is responsible for one of the causes of the infringement, unless - taking experience of life into consideration - this cause appears to be completely unsuited to bringing about the unlawful result. Hence, if users avail of the storage space allotted to them in a repository to upload and offer copyright-infringing content, the repository operators may be indirectly responsible, and the injured party may, at least, bring an action for injunctive relief requiring the repository operators to cease and desist, and to remove the content.

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. Infringements which can occur when self-posting include the violation of other parties' intellectual property rights such as copyright and neighbouring rights, patent rights and trademarks, and personality rights. Weber (2006, p. 152-173) provides a detailed account of the possible liability scenarios which can arise in this context.

When scholars archive their work on their own private websites, the question arises as to the liability of the provider who makes the storage space available.

In the event that repository operators must accept liability for an infringement, they are obliged to put an end to to it, in other words, to remove the infringing material from the Net. However, by so doing, they are likely to be in breach of their obligation to make the document available to the public, which is the substance of the contract between the author and the repository operators. Hence a conflict could arise where the repository operators find themselves, on the one hand, obliged by a third party to "cease and desist" and, on the other hand, confronted with a claim for damages from the author for breach of contract. One way of avoiding this problem is to incorporate a restrictive clause into the contract between the author and the repository in which the author warrants that the work submitted does not infringe the rights of third parties. In this way, the repository operators would be in a position to annul the contract retrospectively if third party rights had in fact been infringed.

 

  • Regarding quality assurance in institutional repositories: Andermann, Heike & Degwitz, Andreas (2004). New approaches to the supply of scholarly information (available in German only)