Intro
Numerous legal issues must be considered when implementing open access (OA) strategies or operating open access repositories and open access journals. These pages furnish information on the German legal framework that is relevant when implementing the OA paradigm. However, it should be noted that the content provided is intended for information purposes only and does not constitute legal advice.
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. In Germany, most of these provisions are to be found in, or are based on, the German Copyright Act, which is the statute most frequently consulted when it comes to OA. In this connection, the German copyright reform is of great importance for the OA movement.
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 OA 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 OA to research data.
Describing copyright law is no easy task. It can best be characterised as the set of legal norms governing the relations between intellectual creators and their intellectual, non-material creations. Article 27 (2) of the Universal Declaration of Human Rights of 10 December 1948 states that"[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." The Basic Law (GG) of the Federal Republic of Germany has enshrined this principle in the right to free development of the personality (Article 2 GG), the right to freedom of expression in the arts and sciences (Article 5 (3) GG), and the guarantee of property (Article 14 GG).
For the territory of the Federal Republic of Germany, these quite abstract legal constructions are given concrete form in ordinary law through the Act on Copyright and Related Rights (UrhG) and the Act on the Management of Copyright and Related Rights (UrhWahrnG). Matters with a trans-border element are covered by the international treaties to which the Federal Republic has acceded. These treaties include the Berne Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the World Intellectual Property Organization Copyright Treaty (WCT). Moreover, there are a number of international treaties that cover neighbouring rights - that is rights neighbouring, or related, to copyright.
As can be seen from the sources, the main focus of copyright law is "the author". Copyright law governs authors' relations to their literary, scientific, scholarly, or artistic works. The concept of "the work" is central to copyright law. Protection is not extended to the results of creative endeavours that are not deemed to constitute "works" or are not created by human beings. However, under Section 2 (2) of the German Copyright Act (§ 2 (2) UrhG), all personal intellectual creations are protected. Also in the case of computer programmes, databases, and photographic works, reference is made to "the author's own intellectual creations"without deviating from the uniform concept of "a work".
The decisive factor for obtaining copyright protection is that the work must be the result of a process of human creation that constitutes a personal creation in a perceptible form and that has intellectual content and a personalised character. Pursuant to Section 2 (1) of the German Copyright Act (§ 2 (1) UrhG), protected works include, for example, texts, speeches, computer programmes, musical works, paintings, sculptures, buildings, photographic works, cinematographic works, and technical drawings and plans. A "work"within the meaning of copyright law must be distinguished from a "workpiece", or material object. The latter can be commercially traded and is not governed by copyright law but rather by the law of property.
Copyright protection arises the moment that an object fulfilling the aforementioned prerequisites of protection is created. In other words, it is not conditional upon the work being registered. If several persons make an independent creative contribution to the creation of a work without it being possible to separately exploit their individual contributions, they are deemed to be joint authors of the work (§ 8 (1) UrhG). This means that they all enjoy protection under the provisions of the Copyright Act. However, it also means that they may only jointly avail of the rights resulting therefrom and that, unless otherwise agreed, they may obtain their share of the proceeds derived from the exploitation of the work only according to the extent of their contribution to the creation of the work (§ 8 (2) and (3) UrhG).
The legal relations between authors and their works can be divided into two groups: on the one hand, moral rights, which are inalienable in principle, and on the other hand, the rights to commercially exploit the work.
Moral Rights:
- § 12 UrhG: Right of publication
- § 13 UrhG: Recognition of authorship
- § 14 UrhG: Distortion of the work
Exploitation Rights:
a) Material Exploitation
- § 16 UrhG: Right of reproduction
- § 17 UrhG: Right of distribution
- § 18 UrhG: Right of exhibition
b) Non-material exploitation:
- § 19 UrhG: Right of recitation, performance, and presentation
- § 19a UrhG: Right of making works available to the public
- § 20 UrhG: Right of broadcasting
- § 21 UrhG: Right of communication by video or audio recordings
- § 22 UrhG: Right of communication of broadcasts and of works made available to the public
Figuratively speaking, moral rights are the inseverable umbilical cord by means of which authors remain permanently attached to their works. First and foremost, moral rights grant authors the power to decide whether their creations should be published at all. When the works are published, authors may determine whether they should bear their name or a pseudonym. And, finally, authors may always defend themselves against distortions of their works. Even though these rights are formulated in the Copyright Act as inalienable rights, in practice one sometimes encounters deviating agreements. Hence, in advertising and also, and in particular, in science and scholarship, recognition of authorship is frequently waived in favour of a third party.
Above all, exploitation rights ensure that authors have the power to grant third parties the right to use their intellectual property against payment of a fee or free of charge - see the so-called "Linux clause"in the first sentence of Section 31 (1) of the German Copyright Act (§ 31a (1), sentence 1 UrhG). These rights of use may be limited in terms of space, time, or content, or they may be so comprehensive that, in economic terms, the rightsholder may move into the author's position with regard to the individual rights granted. The latter case is referred to as the granting of exclusive rights of use. They entitle the rightsholder to exclude third parties from using the powers that have been granted exclusively to him, in a way that otherwise only the author him- or herself could. If, on the other hand, the rights are limited in terms of space, time, or content, this is referred to as the granting of non-exclusive rights of use, which means that the author retains the power to further allow third parties other than the person who first acquired rights of use to use his or her intellectual property.
Statutory limitations on the author's power of disposal
In the light of the above, authors are entitled in principle to exclude others from using their intellectual property. However, with a view to the social responsibility of ownership, the German legislator has limited this exclusivity in such a way that, in the public interest, it permits by law the use of property belonging to another person in exceptional circumstances. Within the limits of the Copyright Act (§§ 44a ff. UrhG), the user is thereby granted rights to use the results of the creative endeavours of others, which rights are not subject to the power of disposal of the author.
The limits of the Copyright Act relate, for example, to the fact that natural persons have the right to make copies of the work for private use provided these copies do not directly or indirectly serve a profit-making purpose. Moreover, making copies may be justified in individual cases if they are for the person's own scientific or scholarly use or for use in teaching or in state examinations at schools or universities, in which case the consent of the author would not have to be granted. There are also a number of other limitations on the power of disposal of the author in favour of libraries, archives, museums, and other third parties that are involved in the process of providing basic and further education to the population.
However, authors do not have to accept without compensation the limitations on copyright imposed by the legislator. Via the levies on hardware and blank data media that collecting societies such as GEMA and VG WORT charge manufacturers and importers and distribute to authors, authors receive what the European Court of Justice describes as "fair compensation"for the fact that the legislator permits copying by private users. However, in order to receive this compensation an author must be a member of the collecting society, or must at least register the work with the collecting society, as is the case with VG WORT, for example.
Licensing rights
Apart from the aforementioned limitations on copyright, authors may freely regulate their legal relations with third parties in respect of the works they have created. That means that they are in a position to negotiate with a contractual partner of their choice a contract on the permission of the use of their intellectual property on terms to be determined by themselves, and that they are largely free to determine the content of the contract. In practice, of course, it may sometimes happen that an economically stronger user imposes his terms on the author. However, the author may also grant a free licence that allows users to reuse the work free of charge in a manner that suits the author. Standardised licence models such as the GNU General Public Licence and the Creative Commons licences are often availed of for this purpose.
Special case: authors in employment or service
With regard to licensing - that is, the shaping of the legal relationship between the author and the user of a work - a special case arises when works entitled to copyright protection are created within the framework of an employment or service relationship. In this case, too, copyright remains with the author as it is an inalienable right. However, in the case of works that arise within the framework of an employment or service relationship, employers or principals acquire the right to use these works to the extent necessary for operational purposes (§ 43 UrhG). This right is acquired upon delivery of the work at the latest - the author may be obliged under the terms of the work contract to deliver it. Deviations from this legal provision may be agreed in the work contract.
University teachers and scientific personnel who are not bound by instruction in their research work are exempt in principle from the aforementioned legal provision. Nor are they obliged to offer to the institution that employs them a work that results from research that is not bound by instruction. However, if the research activity is conducted on the basis of concrete instructions, university teachers and scientific personnel are subject to the provision described above.
A further special provision that privileges the authors of scholarly and scientific contributions has applied since the 1 January 2014. If the author has written a scientific or scholarly contribution within the framework of a research activity, 50% of which is, or has been, financed with public funds that are not basic funds of a public research institution or a university, and if this contribution has been published in a periodical collection that is published at least twice a year - especially in a scholarly journal - he or she may make the accepted manuscript version of the contribution available to the public for non-commercial purposes 12 months after the date of first publication, provided the source of the original publication is acknowledged. Any deviating contractual provision is ineffective, even if the author has granted a third party - for example a scholarly publisher - exclusive rights of use in the work.
This somewhat unwieldy provision is the result of a compromise that has been subject to criticism, especially by publishers. Even if the author is not obliged (for example by a research funder) to make the work available to the public, he or she now still has the possibility of distributing scientific knowledge via a communication channel other than that monopolised by the classical scholarly journals. Hence, a further communication channel has been opened.
Even though many individual questions regarding this legal provision remain open, it can be deemed certain that the accepted manuscript version means the version that has undergone peer review and is designated for publication. In other words, it is almost identical with the primary publication, the only difference being the absence of the publisher's layout and logo. The commercial purposes mentioned in the legislative text refer, for example, to remuneration agreements with the author for the secondary publication of the work. In other words, the aim of the provision is to avoid a situation where the author earns money by making the work available to the public. The strict limitation of the right of secondary publication to making the work available to the public precludes the licensing of the secondary publication by means of free licences, and especially the awarding of Creative Commons licences.
Very helpful in this context is also the FAQ on secondary publication law (available only in German), published by the legal framework working group of the priority initiative "Digital Information" of the Alliance of Scientific Organisations in Germany.
SHERPA/RoMEO
Even if exclusive rights of use in a work have been granted to a publisher, it may nonetheless allow the work to be posted to the author's personal website or a repository. The SHERPA/RoMEO database provides information on publishers' self-archiving policies. The database was developed at the University of Nottingham with funding from the Joint Information Committee (JISC). The German-language interface, which is derived from the SHERPA/RoMEO database, was created within the framework of the DFG-funded project "OA Policies", which was conducted by Stuttgart University Library and the Computer and Media Service of the Humboldt-Universität Berlin. The data are continuously updated by the scientific community.
Publishers' self-archiving policies vary. They depend in particular on whether a postprint or a preprint of a publication is to be made publicly accessible by means of self-archiving. However, it should be noted that a legal entitlement cannot be derived from the information in the SHERPA/RoMEO database alone. It is therefore essential to contact the publisher to obtain clarification. In most cases, the publishers listed in the SHERPA/RoMEO database allow works published with them to be made publicly accessible only on condition that the self-archived full-text file contain a reference to the published version. Such a reference could be worded as follows:
Author Posting. © Publisher [Name], 2007. This is the author's version of the work. It is posted here by permission of Publisher [Name] for personal use, not for redistribution. The definitive version was published in Journal of [Name], Volume [Nr] Issue [No], pp. [PS] - [PE] January 2007, doi: [xx.xxxx/xxxxxxx (Link to the DOI)].
Making Documents Publicly Accessible in Repositories
Time and again, authors and repository operators find themselves faced with the question whether a particular document may be made publicly accessible on a personal website or in a repository without the risk of violating the rights of third parties. The answer to this question depends largely on the rights that the author holds in the work in question, and in particular on the rights that have not been exclusively granted to a third party - for example a publisher. A further decisive factor is whether the author is eligible for the right of secondary publication under Section 38 (4) of the German Copyright Act (UrhG). And finally, posting the work to a repository or a personal website may be permissible under the terms of the contract concluded with the third party.
All rights are held by the author
If the author of a copyrighted work has not concluded a contract with a third party regarding the use of the work - in other words, if all entitlements to authorise or prohibit others to use his or her own intellectual property are held by the author - he or she is legally entitled to make the work available to the public on his or her personal website. If the work is to be ingested into a repository, the author must permit the operator of the repository to do so. It is sufficient that the author grants the operator a non-exclusive right to make the work publicly accessible via the repository. However, the author can also make the work available under an open content licence that provides for a non-exclusive right to make the work publicly available to everyone.
Nowadays, works are often made available to the public only in electronic form via repositories. This is especially the case when an institution's examination-, publication-, or doctoral regulations either expressly permit, or even provide for, the deposition of theses and dissertations in the institution's repository. Agreements concerning hybrid publication are also possible. In this case, the author has the option of publishing the work with a publisher or on a print-on-demand basis in addition to making it available to the public in electronic form via a repository. As there are many possible constellations, they should be discussed with the repository operator.
Non-exclusive rights of use in the work have already been granted
If the author has already granted non-exclusive rights of use in the work to a third party, this does not prevent him or her from making the work available to the public on his or her personal website or in a repository. For, even after granting non-exclusive rights of use, the author is still in a position to grant other third parties non-exclusive rights of use, and is therefore entitled to grant a repository operator such a right.
A publisher has been granted exclusive rights of use
If the author has already granted a third party - for example a publisher - exclusive rights of use in the work, a distinction must be drawn between the following case.
It is often not clear whether making a document available to the public by self-archiving it in a repository violates the rights of third parties. Therefore, the general principle is: Ask before you post! Even though it may not be necessary in the individual case, one should always reach an agreement concerning self-archiving with the publisher to whom one submits a work for publication and distribution. This applies especially in the case of foreign publishers, where the publishing agreement may be subject to foreign law, even though, under copyright law, the principle of national treatment applies whereby, in Germany, in relation to his work every author is treated in the same way as a German national would be.
Internet-based channels of scholarly communication also give rise to the question as to who must reimburse an injured party for damage arising from an infringement of intellectual property rights as a result of placing information on a publicly accessible network. In other words, who is liable for an infringement of rights? In particular, repository operators and authors who make their documents available on their own personal websites may be exposed to liability risks if they do not accurately assess their own behaviour in advance. However, it is possible to minimize the risks through appropriate contractual arrangements.
An infringement of intellectual property rights may take the form of an infringement of the exclusive rights of the author or of exclusive rights of use granted by the author to a third party, for example a publisher. If the infringement occurs via the Internet, the injured party is often able to identify only the operator of the website. However, this does not mean that the operator of the website – irrespective of whether it is a private website or a repository – is automatically liable for an infringement of rights. A distinction must be made as to whether the document that has been made publicly accessible in an infringing way is the website operator’s own content, content that has been appropriated by the website operator, or third-party content.
“Own content” refers to information that the website operator – that is, the service provider within the meaning of section 2 (1) of the German Telemedia Act (TMG) – has entered him-or herself. “Entered him- or herself” does not mean that the website operator entered the information personally. Rather, it may have been entered on behalf of the operator by an employee or by a third party – for example a web designer – commissioned by the operator to do so. Nor must the information have been created for the first time. Rather, it is sufficient that already existing own or third-party information is integrated into the operator’s website.
However, this also means that third-party information can become own information if it is adopted by the website operator. The website operator is responsible for this content according to section 7 of the German Telemedia Act (TMG). For the original service provider, the information thus becomes third-party information once it is on the website of the party that has adopted it. Thus, third-party information is information that has been entered and integrated into the website by a third party. The website operator is not responsible for third-party content (section 10 TMG), irrespective of whether it is retained on his or her website for a third party and is recognizable as such or it is on the website of a third party.
In a strand of case law that has been much criticised in the legal literature, the view is taken that the operator of a website can appropriate third-party information in such a way that it must to be treated as if it were own information. This is deemed to be the case especially when the website operator him- or herself or through an employee or a commissioned third party editorially checks or prepares third-party information before placing it on his or her website or when he or she integrates third-party information into his or her own website in such a way that users are unable to recognize that the information did not originate from the operator of the website. The injured party may above all require the person responsible to eliminate and cease the infringement and pay the injured party damages for the prejudice suffered as a result of the culpable infringement of copyright or exclusive rights of use (section 97 of the German Copyright Act, UrhG).
For the repository operator, the question thus arises as to whether a document to which he or she provides public access via the Internet on behalf of an author is third-party content or own content. For, from a dispassionate perspective, a repository is just a website with specific, selected content. Because of the privileging [of service providers] under section 10 of the German Telemedia Act (TMG), if the document were third-party content, the operator would not be responsible for the infringement of the rights of third parties.
However, the problematic thing about this is that, before a document is included in a repository it must undergo a process of editorial selection and, if necessary, preparation. As a rule, therefore, it must be assumed that the document has at least been appropriated. Consequently, there is a risk that, in the case of an infringement of copyright or of the exclusive rights of use of a third party – for example a publisher – the repository operator will be required to remove the document from the repository, desist from (re-)including the document in the repository, and pay damages.
Due to the liability of the repository operator, the elimination and cessation of the infringement is unavoidable. However, by appropriately drafting the agreements with the authors who submit their documents for inclusion, the repository operator can reduce the risk of financial loss arising from the obligation to pay damages. To this end, Prof. Dr. Andreas Wiebe LL.M. (Virginia) suggested in an expert opinion that the following clause be included in such agreements:
The author undertakes to indemnify the repository operator from claims by third parties arising from the fact that, as a result of culpably false information provided by the author regarding the absence of the rights of third parties, or as a result of other circumstances for which the author is responsible, the publication of the work in the repository leads to an infringement of copyright or exclusive rights of use. This shall not apply if the infringement is due to intentional or grossly negligent behaviour on the part of the repository operator and if the author is not culpable of acting with wilful intent or gross negligence in the same way. In the latter case, the apportionment of damages shall take account, in particular, of the respective shares of fault. (Translated from the German.)
Wiebe, in: R. Kuhlen and M. Seadle (Eds.) Zur urheberrechtlichen Gestaltung von Repositorien. Bonn, 2011 (last retrieved on 19.02.2015).
For persons who wish to make their own documents publicly accessible via their personal websites, the greatest risk is that, by so doing, they may infringe agreements with third parties, for example a publisher. If the author in exercise of his or her power of disposition has granted exclusive rights of use in a work to a third party, the holder of the exclusive rights of use assumes the exclusive position of the author in relation to the exploitation of the work and can exclude anyone, including the author him- or herself, from using the work in a particular way. In other words, he or she may forbid others to use the work.
In cases where operators of private websites adopt content created by third parties, their liability risks are the same as those of repository operators.