Liability Scenarios

Texts by: Dr. Seyavash Amini

Adhesion scenarios in an online repository

Case 1: a) Doctoral candidate D publishes his dissertation at the Universit├Ątsrepositorium R, which publishes this Open Access. However, Neider N maintains that D has taken substantial parts of the text from his, still unpublished dissertation manuscript. N calls on R, represented by his lawyer, to remove the publication from the repository database and to sign a criminalized declaration of injustice.

Solution: With regard to infringement, N is the burden of presentation and proof. In so far as D has actually infringed the copyright of the N, the university repository is obliged as a fellow-criminal to ensure that a corresponding infringement does not recur. The repository is not obligated to surrender the injunctions, but can Only in this way the indexed repetition hazard. If the repository is refused, an injunction or an injunction is threatened and, in the event of an N, the imposition of litigation costs.

b) As a), however D has demonstrably copied from the thesis of the N whole passages in his own work. The Hochschulrepositorium R makes a criminal offense and pays EUR 500, -. R now desires from D the reimbursement of the money paid. When he entered the archive, D signed a form on which he assured not to violate any rights of third parties and to release R in the event of third party claims. Can R hold harmless at D?

Solution: Because D deliberately produced a plagiarism and filed it with the R and refused to violate any rights of third parties, D has violated a duty from the contract concluded with R. Therefore, D is obliged to replace the R 500 as a result of the contractual exemption clause.

Case 2: Professor P publishes the Open Access published "The MULTIMEDIA-Xtrem" about the university publisher based at his university. The booklet will be published via the university repository R. Publisher V urges R to take the publication off the web since the danger of confusion with the magazine "Multimedia" published by it.

Solution: The request of the V against R establishes an obligation to investigate the alleged infringement. However, this is not an obvious breach: first, it is questionable whether the title "multimedia" is at all protective or purely descriptive, and it is also unclear whether the addition "Xtrem" to the objectionable work abolishes the confusion The question of the likelihood of confusion of a sign is one of the most difficult questions in the law of signatures. For this reason a claim of the R as an indirect interferer fails; The desire of the V is not justified.

Case 3: Historian H also publishes a monograph on the intrigue of an aristocratic family in the Third Reich at the institutional repository R. The relative A of the family declares that the facts asserted by H are not true and requires R to remove the work from the Internet. In support of the allegation of the infringement, A puts forward a ruling recently brought before the Court of First Instance by the Court of First Instance of an infringement. R refuses, however, rightly?

Solution: As a result of the reference of the A, the operator of the repository is obliged to investigate any infringement of personal rights by H. However, the repository can not be expected to trace the truth content of the utterances of the H by investigations, m.a.W. There is no obvious breach of the personality rights of members of the family A. However, in the present case, A has presented a judicial title which confirms its legal position. The repository is therefore responsible as an indirect interferer for the violation of personality rights.

(Source of the cases and solutions: P. Weber in: Legal framework of Open Access publications, p. 152 ff., (Publisher: G. Spindler)

Please also refer to the new study "Public-interest media archives in Austria. Legal foundations, barriers to use and solutions with the collaboration of Joachim Losehand and Alexander Baratsits.

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