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 et sqq.).
From a liability point of view, it is important that no document be made publicly accessible in the repository without the knowledge of the repository staff. 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.
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. 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. The distinction made by the German Telemedia Act (TMG) between "own content" and "content made available by others" is of relevance here.
Contractual limitation of liability risks
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. (For a detailed account of this matter and a concrete example of a restrictive clause, see Weber (2006, p. 174-181.)
Weber also discusses the use of liability clauses, indemnity clauses and the limitation of the circle of users as means of contractually limiting liability risks.
Links for further reading
- Regarding quality assurance in institutional repositories: Andermann, Heike & Degwitz, Andreas (2004). New approaches to the supply of scholarly information (available in German only)
- Weber, Marc Phillip (2006). Liability risks when operating institutional repositories. In Gerald Spindler (Ed.). Legal parameters of open-access publications (available in German only).
