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.

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.).

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.

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.

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.

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)

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