Legal Aspects
Contents |
Grey literature in the field of Czech law
„The concept of grey literature is relatively complex from a legal perspective, since existing law does not specifically treat it. The very use of the term “grey” in a legal context evokes an image of something sinister or at least of dubious nature, as in the expressions “grey imports” or the “grey economy”. In actuality, however, in this case the color grey does not indicate an intermediate phase between legality and illegality but rather a specific object of legal interest exhibiting the typical features of standard literature. At the same time it possesses characteristics and goals relatively novel and atypical for the law. In this case, greyness from a legal perspective should be perceived not as a sign of danger but rather as an indicator of the need for careful legal reasoning.“ (POLČÁK, R. Legal Aspects of Grey Literature. Pejšová P. (ed.) Repositories of Grey Literature. Zlín: VeRBuM, 2010, p. 67.)
Grey literature is the topic of legal reasoning of JUDr. Radim Polčák, PhD., head of the Institute of Law and Technology of the Faculty of Law, Masaryk University in Brno, who is the legal advisor of the NRGL project. In 2009 he prepared a legal expertise for the NRGL project called Digital processing of the so-called grey literature for the National Repository of Grey Literature with samples of licensing contracts (see below) and he is among the authors of the book Repositories of Grey Literature, chapter Legal Aspects of Grey Literature (see Publications).
Legal frame of the NRGL project
Of out of all the legal questions to do with the creation and publication of grey literature, the focus here will be primarily on copyright. (POLČÁK, R. Legal Aspects of Grey Literature. Pejšová P. (ed.) Repositories of Grey Literature. Zlín 2010, p. 69.) The grey literature document is a piece of author's work, which is protected by the Copyright Act (Act no. 121/2000 Coll., on Copyright, Rights Related to Copyright and on the Amendment of Certain Laws), from the time of its creation, i. e., from the time it is put into an objectively perceivable form. The copyright on work thus originates and is protected under law without regard to the will of the author. This right includes both a moral and material component (Art.10 of the Copyright Act).
The moral component of copyright is directly linked to the person of the author. Much more important for the acquisition and maintenance of grey literature databases is the property component of copyright, which includes the right to utilize the work in question. For the creator or operator of the database to be able to use a particular literary work in this way, the necessary authorization must have been given. This may be granted by the author or other administrator of copyright (e. g., employer, university etc.)
In these contexts, it is important to realize that if the use of copyright works is not covered by a statutory license or by fair use, the work may only be used by negotiating an agreement with the entity holding the copyright. Such an agreement would not include a unilateral declaration or, for instance, the fact that the author has made the work freely accessible on the internet – the license must be of the character of a bilateral legal transaction. For NRGL projects this means that the NTK, as the creator of the database, concludes a licensing contract with all data producers independently of the means by which the work was acquired. (POLČÁK, R. Legal Aspects of Grey Literature. Pejšová P. (ed.) Repositories of Grey Literature. Zlín 2010, p. 70.)
From a legal viewpoint it is necessary to focus on the question of the kinds of legal regimes the varied grey literature output may possess. For this it is necessary to undertake a classification of types of grey literature not according to their individual forms but ideally according to the goals they achieve by their creation. In the scope of fulfilling his academic obligations, a student concludes his study by writing a university qualification thesis (Bachelor, Master, dissertation etc.), which is a so-called schoolwork. An employee (such as a researcher, teacher or a research team) creates employee work for his employer in the scope of his working obligations. For the needs of conferences of education, specialists create documents such as presentations, articles, abstracts or distant support. This output is considered as standard individual authorial works. During solving of the NRGL project, collaboration is mostly started with institutions that administrate intellectual property rights to the respective documents of grey literature. The author is usually not included in these relations. License contracts are directly concluded with authors in the case of long-term archiving and access to personal archives (such as the personal archive of ing.arch. Jan Moučka).
Particularly in the case of individual authorial works, authors have an imminent interest in disseminating their work to the maximum extent possible and would like to utilize the typical massive indirect network effects of the internet, as well. But to give an indeterminate number of interested parties the unilateral opportunity to copy and disseminate a work is impossible under the law. (POLČÁK, R. Legal Aspects of Grey Literature. Pejšová P. (ed.) Repositories of Grey Literature. Zlín 2010, p. 70.)
A natural, albeit indirect, solution to this problem consists in so-called free licenses. In technical terms, this is a public offer to conclude a license contract addressed to an unspecified range of interested parties. The fact that the work in question is offered under a free license is noted in the work itself or in its immediate proximity, and parties interested in copying and further disseminating of the work are informed of the fact that their use is treated implicitly in the licensing terms. Depending upon the type of license negotiated, the author (or administrator of intellectual property rights) may allow further free nonprofit use of the work (this wording is normally used) or also give consent for its for-profit use, allow changes to the work or permit it to be incorporated in another work etc. (POLČÁK, R. Legal Aspects of Grey Literature. Pejšová P. (ed.) Repositories of Grey Literature. Zlín 2010, p. 71.)
Whether the literary work in question is to be used on the basis of a free license or a standard license, it is necessary to differentiate when the intellectual property rights will be exercised by the author himself and when they will be exercised by another entity. For example, when a work has been created in an employment relationship or when the author has previously agreed an exclusive license with someone, the author himself has no right to the work. An author who has published a magazine article and concluded an exclusive licensing contract with the publisher no longer has the authorization to subsequently provide his work, e.g., for processing in a database of grey literature (the magazine publisher, with whom the author had earlier concluded an exclusive licensing agreement, would have to give permission for such use) or to make the work available under a free license. (POLČÁK, R. Legal Aspects of Grey Literature. Pejšová P. (ed.) Repositories of Grey Literature. Zlín 2010, p. 71-72.) The reverse of this, however, is possible. In this case, the author first provides his manuscript to a grey literature database and subsequently (typically after collecting feedback and finalizing the text) decides to offer it exclusively for publication in a magazine or book. The nonexclusive license, under which the original version of the article remains accessible in the grey literature database, remains valid. For more on this topic, see Art. 47 Par. 4 of the Copyright Act.
Legal expertise
In 2009 JUDr. Radim Polčák created a legal expertise for the NRGL project called Digital processing of the so-called grey literature for the National Repository of Grey Literature. The aim of the expertise was the analysis of legal relations originating between the National Technical Library, grey literature producers and database administrators. These legal relations follow from electronic processing, storage and providing access to grey literature and university qualification theses in the NRGL. At the same time, the expertise may serve to universities and students as a set of legal recommendations on how to solve publication of university qualification theses. For the needs of the NRGL project the expertise contains five types of sample license contracts that are used for the collaboration with the NRGL partners with regard to the type and character of the institution. During collaboration with grey literature producers, new situations arose, for which new sample licensing contracts had to be created. This regards institutions that have no database of grey literature, neither is such a database managed by a third person (for example most institutes of the Academy of Sciences of the Czech Republic) or institutions that aim to install the local repository in the CDS Invenio system on their hardware.
The legal expertise in Czech may be found in the attached document.
Licensing contracts
It follows from the legal expertise for the NRGL that metadata may be freely accessible in the NRGL but in order to provide access to digital documents of grey literature, a licensing contract must be concluded with the grey literature producers (or with the administrators of intellectual property rights). In this contract, the possibilities of further use of the documents must be clearly and precisely defined.
In order to conclude a contract, individual subjects (institutions, schools, institutes, authors, etc) must be treated individually considering their field of activity and the scope of rights to digital documents that these subjects exercise. In this respect it is impossible to create one universal contract that might be used for establishing legal relations with all types of institutions. In contrast, only such types of obligations should be applied that correspond to the legal position of the very subject. On the other hand, it is not recommendable either to create separate contracts for every subject since it is mostly dealt with standard, i. e., repetitive legal relations. Therefore the said expertise contains four types of licensing contracts, which are always modified to comply with the specific collaboration.
Types of licensing contracts
Types of licensing contracts always correspond to individual ways of collaboration, which are described in the section How to collaborate (click here).
References
POLČÁK, R. Legal Aspects of Grey Literature. Pejšová P. (ed.) Repositories of Grey Literature. Zlín: VeRBuM 2010, p.
POLČÁK, R.. Digital processing of the so-called grey literature for the National Repository of Grey Literature [online]. 2009. [cit. 2011-03-09]. Dostupné z www: http://nusl.techlib.cz/index.php/Právní_expertiza
TŮMA, P. Copyright Act - Commentary. Prague: C.H. Beck, 2007, p. 421.
TELEC, I. - TŮMA, P. Copyright Act - Commentary. Prague : C.H. Beck, 2007, pp. 380 et seq.
Act no. 111/1998 Coll., on Universities and Amending and Completing Some Related Acts (the Act on Universities).
Act no. 121/2000 Coll., on Copyright and Rights Related to Copyright and on Amendment to Certain Acts (the Copyright Act), as amended.
Act No. 480/2004 Coll., on Some Services of the Information Society and on Changes to Some Acts (Act on Some Services of the Information Society).
