Beim Veröffentlichen von Forschungsdaten muss u.a. Urheberrecht oder die Einverständnis der…
Legal regulations have to be taken into consideration not only not only during the course of a research project but also for the re-use of its output. Copyright laws and valid third party interests have to be accounted for even when it is not clear who is reponsible for the data or if the reponsible party is not available. This is why basic legal issues should be clarified before the start of any research project.
The prevailing legal opinion is that research data are only rarely covered by copyright.* We recommend that institutions and researchers treat research data as if they were subject to copyright to a reasonable degree in order to avoid potential legal issues. This can be achieved by implementing simple measures like proper attribution and involving the data creator in publication decisions. That way there is a maximum of legal certainty.
*This does, however, not mean that data cannot be protected by other laws (e.g. as a tarde secret or an item of property).
Copyright law (dt. Urheberrecht)protects certain intellectual works (dt. Werk/Schöpfung) and achievements (dt. Leistung) (see image 1). In the case of an intellectual work, the focus is on the work itself as a whole whereas in the case of an intellectual achievement the focus is on the achievement process. Databases are a good example: if the database is made up of a lot of existing datasets it is usually not considered a new original work, because the threshhold of originality (dt. Schöpfungshöhe) has not been reached. This means that the database is not protected as an original work, but might be protected as an intellectual achievement for collecting the datasets.
As a general rule, academic research hast to take into consideration what intellectual property rights might apply. If a work is copyrighted it is necessary to obtain the author's permission in order to reproduce or disseminate it. In principle, research data in Germany can be subject to copyright. This, however, does not apply to data like unstructred measurements, because they do not fulfill the four criteria for an intellectual creation (see § 2 paragraph 2 UrhG). Those criteria include the following aspects (see drop-down table): perceptible design, personal creation, intellectual content and the so-called threshold of originality.
|Perceptible design||This criterion excludes mere ideas that have not been manifested in any physical form. However, indirect percebtability (via technological tools/aids) is sufficient.|
|Personal creation||An intellectual work has to be the result of the formative influence of a human being. Works created by machines or animals are therefore precluded.|
|Intellectual content||The work needs to have emotional or intellectual meaning which impacts the viewer in some way. This meaning has to be discernable without a lot of instruction.|
|Threshold of originality||A certain amount of individuality and originality has to be present. This is called the threshold of originality. Effort, expertise or skill are not applicable criteria, however.|
Especially the fourth criterion, the threshold of originality often presents an insurmountable obstacle for applying copyright to research data, since part of the character of the author has to be discernable in the work. Machine-generated research data, for example, do not pass the threshold of originality. However, processed data might fall under copyright depending on their aggregation level and the associated level of individual effort. However, in most cases research data are charcaterized by an absence of individual influence.
Aspects that need to be taken into consideration:
In doubtful cases these issues should be clarified together with the rights holder in a legally binding contract, if necessary. Considerations of legal issues should not be limited to third party data but should also include data gathered or generated in one's own project.
Using licences (e.g. GPL, BSD or Creative Commons) is an easy way of controlling access and re-use. In some cases, however, the possible application of patent laws should be examined. If in doubt, it is best to consult a patent attorney. In the case of a patent the patent right holder is generally the only one who is authorized to use the patented work (§ 9 PatG). However in academic research there might be exceptions to this rule in the form of reseach exemptions *** (§ 11 paragraph 2 PatG).
includes right to
– publish (§ 12 UrhG)
– use (§ 15 UrhG)
– reproduce (§§ 16; 69c Nr. 1 UrhG)
– disseminate (§§ 17; 69c Nr. 3 UrhG)
– perform (§ 19 UrhG) etc.
– reproduction for private purposes (§ 53 paragraph 1 UrhG)
– citation (§ 51 UrhG)
– usage of a database (§ 55 a UrhG)
– public speeches (§ 52 UrhG)
Copyright applies from the moment that the intellectual creation or achievment takes a "perceptible physical form". From this point of creation the work is protected under the name of the creator (until proof to the contrary §10 UrhG). The general period of protection is 70 years (§ 64 UrhG) and is calculated from the time of death of the creator. After the expiry of the protection term the work becomes part of the public domain and may be used (edited, reproduced, performed) without permission of the original creator.
A waiver of one's intellectual property rights is not possible under German law. (§ 29 UrhG). This is why employees retain the rights to works they created during the duration of their employment relationship even if the associated usage rights have been transfered to the employer in their entirety.
However, the research institution might hold the exlcusive exploitation rights if the data are considered a trade secret. It is the task of all academic institutions to adopt regulations for the handling of research data.
If an employee creates an intellectual work as part and during the duration of their employment, the exploitation rights for said work belong to the employer. The rights are usually conceded at the time of signing the employment contract, but at the latest on delivery of the work (§ 43 UrhG). If the creator of a work, database or image is employed by a university at the time of creation of the work, he or she is obliged to concede the exploitation rights to that work.However, it has to be noted that due to the constitutionally guaranteed right to scientific freedom (Art. 5 Abs. 3 GG) these regulations do not apply to university professors, visiting professors or honorary professors. In such a case the exploitation rights are not transfered to the employer.
Recommendations for work contracts:
Since data ownership and other rights to data that were authored by more than one person are often unlcear, those kinds of data can not be shared with third parties before permission is given by all authors. If an article is published in a journal, the editor of that journal may restrict access to this article. The kind and degree of restriction depends on the publishing agreement between the author(s) and the editor (see Rights and licensing, University of Oxford).
The SHERPA/RoMEO service hosted by the University of Nottingham lists journals and their associated copyright conditions which helps to clarify which rights remain with the author(s).
Germany's copyright law was augmented by a fourth paragraph to § 38 UrhG which contains the right to secondary publishing. „The right to secondary publishing grants authors of scientific publications which conform to certain conditions the simple usage right of making an electronic copy of the publication manuscript publically available one year after the original publication date. Whether the secondary publication right applies to an author is not determined by their nationality or terms of employ but rather by whether their publication conforms to the following three conditions“: