- A. The CC licence as a tool for science
- B. Licensing of scientific contributions
- C. Use of licensed content in science
- D. Summary and recommendations
Literature: Alliance of German Science Organisations, Appeal for the use of open licences in science in: Information for Science No. 68 | 20 November 2014, https://perma.cc/CD2Y-4SRZ, Peter Brettschneider/Alexandra Axtmann/Elisabeth Böker/et al., Open licences for Research Data, o-bib. The Open Library Journal / Publisher VDB 2021, 1 (3 ff.), Paul Baumann/Philipp Krahn/Anne Lauber-Rönsberg, Research Data Management and Law, 2021; Thomas Hartmann, Securing Open Access Legally – Why an Opt-in is Needed, in: Practical Handbook Open Access, 2017, 45 (49 f.); Seyavash Amini/Guido Blechl/Joachim Losend, FAQs on Creative Commons Licences with Special Reference to Science, 2015, https://perma.cc/KE6F-P3GZ.
1 Even though the development of the CC licence model initially focused less on science as a use case and more on facilitating creativity and new digital practices such as mashups, memes and remixes, Creative Commons licences have developed over the last 20 years into a preferred licence model in the field of science and open access publishing.
2 Scientific research is also often characterised by a self-referential approach: researchers examine external research results in order to subsequently generate new research results on this basis.
A. The CC licence as a tool for science
3 Scientific research and teaching have always been geared towards passing on knowledge to other researchers, usually in the form of a publication (e.g. in the form of a journal article or a data publication).
4Against this backdrop, the Budapest Open Access Initiative (BOAI) was formed in the early 2000s, bringing together researchers from different countries across various disciplines to enable unrestricted access to all scientific journal literature .
"scientists publish without expecting to be paid for it (...) should be available free of charge and publicly on the the internet, so that interested parties can read, download, copy, distribute, print, search, reference and otherwise use the full texts in any conceivable legal manner, without financial, legal or technical barriers beyond those associated with internet access itself. In all matters of reprinting and distribution, and in all matters of copyright in general, the only restriction should be to allow the respective authors control over their work and to secure their right to have their work appropriately acknowledged and cited."
I. Science policy guidelines
5 The Budapest Open Access Initiative mentioned above was the starting point for the implementation of numerous open access policies at supranational, national, federal and institutional levels. This was followed in 2003 by the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities (Berlin Declaration).
6 At the supranational level, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) provides important impulses and, among other things, published a recommendation on open science in 2001, in which it repeatedly addresses free licensing as a means of achieving the goals of open science and open access.
7 In Europe, the European Commission is an important driving force for the implementation of open access and the use of Creative Commons licences. In a recommendation issued in 2012, it called on member states to implement clear and binding open access policies, in particular to ensure free licensing for the publication of scientific publications and research data.
8 At national level, there are intensive efforts to promote and disseminate open access: in 2022, for example, the US government announced in a memorandum that government-funded research must be freely accessible without embargo from 2026 onwards.
9 Scientific organisations and associationsalso recommend the use of CC licences:
10 Based on the Berlin Declaration, many institutional open access policies show parallels in terms of content and structure. Regardless of their respective names
II. Licensing requirements of public research funding bodies
11 On the other hand, the requirements of research funding bodies when awarding funding, which give preference to Creative Commons licences, are of particular importance for the open access transformation and the implementation of free licences. Unlike open access policies, recommendations and guidelines as soft law, these specific licence requirements can be legally binding.
12 In some cases, research organisations explicitly require licensing under Creative Commons licences in their guidelines. For example, the DFG requires researchers in its "Open Access Publication Costs" programme, which provides a fixed grant for the publication of scientific results in open access, to provide funded publications "with licences [...] that regulate the reuse of the publications in a legally secure manner."
III. Institutional guidelines
13 The trend towards open licences has accelerated in recent years, particularly at the institutional level: more and more universities, research institutions and research funding bodies in the scientific sector have adopted their own guidelines for promoting open access . The "Digital Information" priority initiative of the Alliance of Science Organisations, which brings together the most important and significant German science and research organisations and regularly addresses issues of science policy, research funding and the structural development of the German science system , has set itself the goal in its field of action "Scientific Publication System" of "making global knowledge accessible and reusable in digital form without financial, technical or legal barriers ."
14 In the meantime, publicly funded scientific institutions have adopted institutional open access policies almost across the board in Germany, recommending that their members use "free" licensing to implement open access.
IV. Repositories, publication funds and publication practice
15 The development and establishment of publication servers (repositories) under Creative Commons licence options also promotes their use for scientific content.
16 In many scientific disciplines in which monographs and anthologies rather than articles in scientific journals (periodicals) are the predominant publication format (e.g. in many social sciences and humanities), traditional publishing continues to dominate. The open access models established in the journal sector The open access models established in the journal sector cannot be easily transferred to this area.
17 Some universities and research institutions have a budget for financing open access monographs (publication funds), the provision of which also contributes significantly to the open access transformation. This funding is regularly tied to the condition of licensing with Creative Commons licences. At Humboldt University in Berlin, for example, funding from the publication fund for open access books is linked to the granting of a CC BY 4.0 licence.
B. Licensing of scientific contributions
18 As licensable objects, scientific articles in journals and books as text formats (periodicals vs. individual publications) and research data (including software) each have special features that will be examined in more detail below with regard to licensing practice.
I. Objects eligible for copyright protection
19 In order to grant copyright usage rights (licensing), it is necessary that copyright or ancillary copyright exists in the first place. The subject matter of copyright protection in Germany (§§ 1 f. UrhG) and the European Union are works as the author's own intellectual creation.
1. Public domain of research results and specialist content
20 Scientific content, research results, theories, concepts, ideas, facts, formulas or findings are not licensable as such because they are in the public domain.
21 Thoughts and ideas in the sense described above may be adopted without permission. If the person adopting them is nevertheless accused of plagiarism, this is not a matter of copyright or licensing law. However, adopting someone else's ideas without naming the author is generally a violation of the regulations on scientific work that exist at almost all universities and research institutions, which also address the issue of plagiarism. The regulations on plagiarism at universities also include ethical approaches and guiding principles such as respectful interaction with one another. If, for example, copyright law does not impose an obligation to name the author under Section 13 of the Copyright Act (UrhG) due to a lack of protected subject matter, this obligation regularly arises in academia from the guidelines on good scientific practice. These guidelines require the citation of sources.
2. Copyright protection for specific forms of presentation
22 The specific representations of scientific content – for example in the form of texts or drawings – are regularly protected by copyright. They can therefore be licensed. However, copyright protection and possible licensing only extend to the specific, published form of expression, e.g. a text or a drawing, and not to the content conveyed therein (see above para. 20). The adoption of content, results, ideas or concepts cannot be prevented or otherwise contractually regulated
3. Recognition of research results
23 More important to female scientists than the practical applicability of a specific form of expression is recognition for their research findings.
24 The possibility of controlling the use of one's own research results, which is occasionally desired by some scientists, is not possible either through copyright or CC licences. For example, attribution cannot be enforced in the case of an incorrectly assigned CC BY licence if the research contribution used is not protected by copyright. The possibility of control is limited to materials protected by copyright or ancillary copyright, the use of which depends on the consent of the rights holders or the granting of rights of use. A reinterpretation or reduction of a licence pursuant to Sections 31 et seq. of the German Copyright Act (UrhG) into simple or general contractual terms pursuant to Sections 305 et seq. of the German Civil Code (BGB) is also ruled out according to the clarification in Section 8.a CCPL: According to this rule of interpretation, it is not possible to establish or otherwise extend property rights or restrictions on use of copyright-free materials through Creative Commons licensing.
25 The desire of scientists to use the licence to ensure that ideas and concepts are also credited cannot be realised for research content. However, this is also satisfied in the case of public domain research contributions by good scientific practice and the associated scientific law.
II. Licensing of scientific text publications
26 The following section highlights the special features of CC licensing of scientific publications in text form .
1. Subject matter of the licence and licensability
27 The bibliographically independent parts of a complete work (e.g. chapters from a book) are generally protected by copyright and can therefore be individually subject to licensing, with the result that in a collective work with different authors, the contributions contained therein may be licensed differently in each case. The collective work, which is also subject to copyright protection (Section 4 (1) UrhG), can be licensed separately as such.
2. Licensors for text publications
28 Researchers are usually affiliated with an institution and work for a university or non-university research institution as employees or civil servants. Therefore, the question of who, as the owner of the rights to scientific texts, can publish and license them must be addressed.
29 German copyright law applies the creator principle (Section 7 UrhG). All copyrights arise with the creative process and belong to the creator, i.e. a natural person. If the work was created by several persons without their contributions being separately exploitable, co-authorship exists in accordance with Section 8 UrhG. This is the case, for example, with a journal article written jointly by a research assistant and a professor.
30 The situation is different for ancillary copyrights, which are not based on creation. In this case, the rights are vested in the (possibly legal) person who provided the protected service or investment as the basis for the property right (e.g. the database producer's right).
31 The creator principle or the principle of performance provision for ancillary copyrights also applies to works or services created within the framework of employment or service relationships . In view of the non-transferability of copyright as a whole and of individual exploitation rights (cf. Section 29 (1) UrhG), an employer or superior can therefore only acquire rights to the work product by granting rights of use (Section 31 UrhG).
32 If, as in science, the activity or the search for knowledge underlying the publication is financed, a tension arises between the scientist's claim to decide on the exploitation of the works created and the claim of the funding institution or the general public to use the works from science, the creation of which it ultimately financed and which were created solely in fulfilment of obligations arising from a (public-law) service or employment relationship.
33 Since employers and public authorities regularly have an interest in being able to exploit the work created in their employment or service relationship, Section 43 UrhG facilitates the acquisition of rights, especially outside the scientific field. This also applies if the employment or service contract does not contain a separate agreement on the granting of rights of use.
34 The prevailing opinion in legal literature concludes from the constitutionally guaranteed freedom of science (Art. 5 (3) GG) that university professors, adjunct professors, honorary professors, visiting professors and private lecturers can decide for themselves on the publication of copyright-protected works and that there is no obligation to publish .
3. Challenges
35 Publications play an important role in academic careers. In many cases, researchers feel compelled to publish in renowned journals which, at least in the past, have mostly not allowed free licensing. Furthermore, publishers grant themselves comprehensive rights of use to publications in so-called buy-out contracts and, on the basis of these rights, prevent scientists from sharing their findings in repositories or on their own websites in addition to the publisher's publication. For For researchers, the urgent recommendation is therefore to transfer usage rights to publishers only as simple (not "exclusive") rights and, in the best case, to use a public-interest-oriented publication infrastructure (at least as a supplement for the preprint, secondary publication or underlying data). Public interest-oriented publication infrastructures are platforms that aim to make scientific results openly accessible and thus contribute to the promotion of the public interest. These include institutional, subject-specific or interdisciplinary repositories and publication platforms of scientific institutions.
4. Licensability of secondary publications
36 Finally, special attention must be paid to the so-called "secondary publications" that are possible in Germany. The background to this is the so-called "secondary publication right" for authors of scientific contributions, which has been enshrined in Section 38 (4) of the Copyright Act (UrhG) since 2014 under the conditions specified therein, even if exclusive rights have been granted to a publisher. Among other things, this is intended to make it easier for authors to subsequently publish journal articles in university repositories in order to ensure free access to publicly funded research results – including for the general public.
37 As a result of an exclusive transfer of rights of use in the work to a publisher, the author can no longer dispose of the work independently. However, in order to be able to place content under a CC licence, he must have the necessary (exclusive) rights.
38 Repository operators or research funders who provide technical or organisational support to the author are also not authorised to grant CC licences under Section 38(4) UrhG. They may only be authorised by the author to make the contribution publicly available in the accepted manuscript version – but without a CC licence – as a result of the provision in Section 38(4) UrhG. As a result of the provision in Section 38(4) UrhG, they may only be permitted by the author to make the contribution publicly available in the accepted manuscript version – but without a CC licence.
III. Licensing of research data
39 Visibility, accessibility, networking and reuse are central objectives of the FAIR principles for digital research data.
1. Licensability of research data
40 A legal analysis of whether research data is protected by copyright is essential prior to licensing. Research data without copyright protection cannot be legally licensed with a CC licence.
2. Licensors of research data
41 In this respect, the legal situation for research data is comparable to that for text publications.
3. Challenges
42 One of the greatest challenges in considering research data from a copyright and licensing perspective is its diverse forms of appearance.
43 Copyright law is designed independently of specific disciplines and methods. From the perspective of some researchers, it may therefore occasionally seem coincidental that some research data enjoys copyright protection while other data is in the public domain. For the fundamentally important copyright assessment of individual research data
4. Sui generis database producer rights
44 Special attention for scientific practice is required by the sui generis database producer protectionenshrined in EU law (Sections 87a et seq. UrhG).
45 With regard to licensing, it should be noted that rights holders may, in exceptional cases, grant individual researchers with their research data, but rather the scientific institution or, for example, a professional association that provides and operates the database. In order to fulfil their responsibilities in this regard, scientific institutions and other operators of research data repositories are initially advised to define their objectives (e.g. open access/open science, FAIR principles). Depending on this, it may be advisable for the respective scientific institution to license the sui Depending on this, licensing the sui generis database producer's right by the respective scientific institution with a far-reaching waiver of rights (CC Zero) may be particularly appropriate.
46 In international research, sui generis database rights can lead to problems and confusion. Legal systems outside the European Union do not have comparable statutory protection for databases. In this respect, too, a release declaration (CC Zero)
C. Use of licensed content in science
47 As users of licensed materials, scientists also face numerous challenges, which are highlighted below. Selected examples are used to explain what the respective challenge consists of, whether it is of a legal or practical nature, and what consequences it may have. Not all of these challenges necessarily lead to a violation of copyright exploitation rights.
I. Different licence objects
48 As with the use of copyright-protected objects in general
49 Use of the written work alone is then possible under the terms of the licence (e.g. attribution in the case of CC BY licensing). If the text publication also contains images from third parties, these are not covered by the licence, for example if they were used as image quotations under the rules of freedom of quotation. Ideally, it should be Ideally, it should be obvious from the context that this is an image citation, for example, if a contemporary painting is analysed in terms of art history and then shown. In this case, the image may be used in the context of the text publication and the citation, but not separately without consent. It may also be the case that third-party images are licensed independently; in this case, the terms of this licence apply to their use. Where applicable, additional conditions (e.g. use under non-commercial conditions) must be observed.
II. Use of materials that are not protected by copyright but are licensed Materials
50 A similar situation, which also creates legal uncertainty for researchers, has the same consequences: this concerns the use of materials that are not protected by copyright but are nevertheless incorrectly CC-licensed.
51 It has already been explained above that only copyrightable items can be licensed. Nevertheless, it sometimes happens that items that are not protected by copyright are also licensed. For a legal layman, the CC label indicates that use is only permitted under certain conditions. However, this is a – incorrect – legal appearance. This is because the use of materials that are not protectable by copyright may already be carried out by law without further permission from the author. For example, completely computer-generated images, which are not protectable by copyright due to a lack of human creation, are
52 It can also happen that machine-generated research data is published under a CC licence. This is often done for reasons of reputation: the licensor wants to ensure that they are named as the "author" of the research data in the event of subsequent use. However, this requirement is already met by the However, this requirement is already met by the regulations on good scientific practice that apply in academia. The CCPL, on the other hand, is not the right tool for this purpose. Its application to scientific results that are not protected by copyright even contradicts good scientific practice, as users could feel significantly restricted in what is actually unrestricted use.
III. CC licences and copyright restrictions
53 While CC licences contractually grant rights of use, statutory permissions may also apply in individual cases (e.g. for the field of science in the broader sense in Germany: Sections 51, 60a ff. UrhG).
54 These can generally coexist, with the rights of use granted by a Creative Commons licence only applying insofar as they extend the statutory rights of use.
55 With regard to the uses permitted by law in Germany under Sections 60a and 60c UrhG, this independence is of particular relevance, as only limited use (e.g. reproductions for one's own scientific research of up to 75% of a work pursuant to Section 60c (2) UrhG) is permitted by law. If the work to be used is also licensed under a CC licence, a work may therefore be used beyond the quantitative limits of use specified in the law . In individual cases, linguistic research may therefore in principle reproduce a 300-page CC-licensed novel in its entirety, whereas Section 60c (2) UrhG only permits the reproduction of 75% of the novel.
56 Furthermore, CC licensing can reduce the considerable legal uncertainty
IV. "Commerciality" of science in CC BY-NC-licensed content
57 Particular practical problems may arise in relation to the NC licence module, which is widely used in academia (licence: CC BY-NC or CC BY-NC-ND). This licence module prevents use for commercial purposes (see section 1.i, margin note 73 ff.). In the field of science in particular, there are difficulties in drawing boundaries here (for details, see Section 1.i, margin note 73 ff.).
58 It is sometimes assumed that the mere publication of research results in a profit-oriented academic publishing house means that previous uses of copyright-protected works were for commercial purposes. This would mean that, if publication by a publisher is planned, no works licensed under CC BY-NC or CC BY-ND may be used in their creation.
59 Difficulties in drawing boundaries arise when using CC-NC-licensed content on "private" scientific blogs and websites (e.g. if advertising is placed there to refinance hosting costs). On the other hand, publication by a publisher is clearly considered commercial use if the research work generates its own income (e.g. in the context of targeted contract research for companies).
D. Summary and recommendations
60 Scientific institutions should first clarify whether CC licensing can meet the respective concerns of scientists and the scientific institution. Consideration should be given to the interests in the scientific contribution and whether these can be legally achieved within the framework of copyright law with CC licences . Some control requirements, for example, cannot be legally implemented through copyright or CC licensing.
61 In most cases, the copyright analysis can be carried out quickly and with legal certainty. For example, when publications in the humanities and social sciences are published in text form, these specialist publications are regularly
62 If the scientific contribution is protected by copyright, a CC licence with the attribution (BY) licence condition and, selected in accordance with the interests of each party, additional licence conditions can be used. When selecting the individual Creative Commons licence conditions, it should be noted that not all licence conditions are consistent with the common understanding of open science/open access (in particular according to the Berlin Declaration).
63 For scientific contributions that are not protected by copyright, an appropriate rights notice should be attached. Creative Commons provides the Public Domain Mark (see section Einl Rn. 29) for this purpose.
64 Another disadvantage is that the attribution of CC licences is designed in a rather counterintuitive way. According to section 3.a.1, not only must the name of the author be indicated, but in addition to the copyright notice and reference to this CCPL, there must also be a reference to the disclaimer and, where reasonably practicable, a URI or hyperlink to the licensed material. However, here too, it is up to the public body as the data provider to ensure that incorrect attribution, e.g. because a link to the licence text is missing, does not lead to a legal dispute.
Creative Commons License
Open Access Kommentar, Commentary on B. Science (Open Science) is licensed under a Creative Commons Attribution 4.0 International License.
