An article by Lea Sophie Singson, Legal Data Steward at FAIRagro, Lea-Sophie.Singson@fiz-Karlsruhe.de
The CC-BY license is probably the license most frequently applied to research data when the author is concerned about attribution. However, many people are unaware that this license can only be granted to works protected by copyright. This has already been discussed in more detail here. Nevertheless, it is also applied to many datasets that are actually outside the scope of copyright protection. These two judgements show why this type of dataset is also protected against plagiarism and other misuse:
Attribution and labor law – consequences for violations of good scientific practice
In February 2023, a professor at the University of Bonn was dismissed without notice for failing to cite other works in her publication. Rightly so, according to the Bonn Labor Court. This was because she had violated the principles of good scientific practice (GWP) and at the same time breached her contractual obligations. By submitting the publication with her application to the university, the professor had implicitly declared that she had complied with the principles of GWP. A breach of duty that, in the opinion of the university and the labor court, was so serious that immediate termination without notice and without prior warning was deemed appropriate.
The Berlin Administrative Court also ruled in 2020 that the doctoral degree could be revoked due to insufficient citation. The Court also referred to the GWP.
The history of good scientific practice – from the code of ethics to university statutes
The ‘Guidelines for Safeguarding Good Scientific Practice’ originate from the pen of the German Research Foundation (DFG). As a registered association, it is not actually an authorized body for the creation of legally valid laws. So how is it that institutions such as the University of Bonn can make their employment relationships dependent on compliance with good scientific practice?
In this case, the DFG has ensured compliance with the guidelines through a condition in the area of funding. It only funds scientific institutions as long as they implement the guidelines in their own legislation. In other words – no money without ensuring good scientific practice. This is why the guidelines also appear in various forms in the individual institutions. Be it as university statutes, like at the University of Bonn, or as an addendum in individual employment contracts.
Say my name! – Attribution obligation in the GWP
Now that the GWP has found its way into institutes and universities, the question arises as to what means a researcher has against plagiarism or other false citations of their work. As mentioned above, the GWP stipulates an obligation to attribute other authors. The court rulings described above show that a breach of this obligation can have consequences under employment law and, in extreme cases, result in
dismissal. But what remedies do researchers have against each other? This is where the major difference to copyright law becomes apparent: if someone violates the right to attribution under the Copyright Act, the author may have a direct claim against this person and can also enforce it in court. The breach of the attribution obligation creates a legal relationship between the author and the infringer.
In contrast, infringements of the GWP only extend to the relationship between the infringer and their employer. It has not yet been clarified whether the person whose right to attribution has been violated also has a claim for retribution against the violator.
Good scientific practice – in practice: Procedure for suspected plagiarism
However, this does not mean that the person concerned has to rely on their superiors recognizing plagiarism themselves and taking action. They can contact so-called ombudspersons at the respective institution of the infringer with the suspicion of plagiarism, for example. The specific procedure for suspected cases of academic misconduct is determined by the respective institution. The key word, however, is scientific misconduct: not every violation of the GWP constitutes as such. Only intentional or grossly negligent violations that are stipulated in the respective institution’s regulations constitute scientific misconduct. As a rule, this also includes plagiarism, i.e. pretending that someone else’s intellectual work is your own.
Copyright trumps GWP? – What can an author do that others cannot?
Considering what has just been said, the first impulse is probably to say that the protection afforded to researchers by the GWP falls short of that afforded to authors.
In order to assess whether this is actually the case, we will look at two key tools available to authors in the event of unlawful use of their work.
The right to require cessation of infringement
According to Section 97 UrhG, an author whose copyright has been infringed has a claim against the infringer to cease and desist the infringement. The prerequisite is an ‘unlawful infringement’ of the copyright. The infringement is unlawful if it takes place outside the legal authorization or permission of the author. Whether the user was aware of or even intended the infringement is irrelevant. If someone therefore has used parts of another person’s work with a CC-BY license without quoting them, the author can use copyright law instruments to request them to refrain from doing so.
That being said, it is very likely that an employer will instruct his employee to correct a false or missing citation, even if it isn’t scientific misconduct.
Compensation for damages
If the affected party also wants compensation for damages, the other party must be at fault for the unlawful use. If such culpability is established in the case of use
outside of a license, the infringed party can demand what the other party would have had to pay if they had acquired a license for the use in the usual way.
The special feature of open access licenses such as the CC-BY license is that it allows royalty-free use. Case law concludes from this that the material value that would have to be reimbursed would equal zero, as the author is not entitled to any fees even for uses within the CC-BY license.
There are high requirements for the compensation of so-called immaterial damages, i.e. damages that do not affect property. A serious infringement of the moral rights of the author is required, which cannot be compensated in any other way. Whether this can be assumed in the case of use without attribution is questionable.
How do you perceive the protection afforded by good scientific practice?
But are researchers even interested in monetary compensation for lack of attribution in the sense of paying a fee? In the practice of open access science, research data is often ‘openly’ provided with the CC-BY license. This speaks more in favor of the expectation of a – perhaps indirect monetary – gain through the reputation and perception of the researchers’ achievements. Are researchers even aware of the legal implications of the CC license? And are they even aware of the formalities involved in the license? We want to get to the bottom of all these questions in our survey ‘The “Gollum-Effect” in Research Data Management – Is Legal Uncertainty a Reason for the Hording of Data Treasures?’. Klick here to fill it out and become part of the development of community-orientated legal training and solutions
This article is licenced under CC-BY 4.0.