Research Data Management for Biodiversity Data

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7.2.6. Granting of rights of use within the framework of service and employment contracts

If the creation of copyright-protected work is one of the duties or central tasks of the employment contract such as writing journal articles, the employer is granted rights of use to these so-called “compulsory works” on the basis of the employment contract or employment relationship (Section 43 UrhG [1])
The following “mapping” of research data results from the balance of interests with the freedom of research Art. 5 para. 3 GG (German Basic Law):
  • As a rule, university teachers are entitled to all rights of exploitation, use and publication of the works they have created, unless there are express contractual agreements (e.g. third-party funding, non-disclosure agreements). § Section 43 UrhG (so-called “compulsory works”) does not apply here.
  • Scientific assistants and employees have certain rights outlined in Article 5(3) of the German Basic Law (GG) when they carry out their research independently, without being told what to do. If they conduct their research under specific instructions, it's assumed that they've given permission for the use of the research data they create.
  • In the case of students and external doctoral candidates, no rights of use are granted to the university, as they are not employees. However, different contractual agreements can be made, e.g. in the case of third-party funded projects, through which the university is granted rights of use.
The following Figure 9 illustrates the issues of the transfer of exploitation rights to the employer (“compulsory work” under Section 43 UrhG) and the balancing of interests with the freedom of research (Article 5(3) GG) according to roles as they are to be weighed in the scientific field in individual cases:
The image is a slide from a presentation, titled "5. Transfer of rights to the employer?" It discusses the legal aspects of transferring copyright from an employee to an employer. At the top of the slide, there are three bullet points: Basis: Employment contract Only rights of use are transferable Moral rights (especially the right to be named) remain with the employee Below this text, there is a two-column table. On the left column, under a blue header labeled "Compulsory piece § 43 UrhG Research subject to instructions," it lists "Non-research associates." This suggests that non-research associates are subject to compulsory copyright provisions under § 43 UrhG due to their instructions. The right column, under a blue header labeled "Freedom of research Art. 5 para. 3 GG Research without instructions," lists three categories: "University teachers," "Doctoral students without staff contract," and "Students." This implies that these groups have the freedom to conduct research without instructions under Article 5, paragraph 3 of the GG (Grundgesetz, which is the German Basic Law). Between the two columns is a double-headed arrow pointing to a central box labeled "Research associates," indicating that research associates might fall into either category, and thus the transfer of rights could depend on their specific situation. At the bottom of the slide, two more bullet points state: Examination required in individual cases! Ideal: Reconciliation of interests This suggests that the transfer of rights should be examined on a case-by-case basis and the ideal scenario is to reconcile the interests of both the employee and the employer.
Figure 9. Ownership of research data
Figure 9. Ownership of research data (modified from Brettschneider 2020 [2], CC BY 4.0, translation by HeFDI).
It should be noted that the granting of rights of use within the framework of service and employment contracts may also be tacit if the granting of rights of use is not expressly regulated in the contract. Within the framework of the (tacit) granting, the scientist also leaves the right to determine to the employer whether and how the work is published. On the other hand, each scientist retains their right to be named.
[1] Act on Copyright and Related Rights. (2021). Urheberrechtsgesetz – UrhG.
[2] Brettschneider, P. (2020). Wem “gehören” Forschungsdaten? https://doi.org/10.5281/zenodo.3762995
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