The article focuses on the regulatory and contractual framework in CLARIN. The discussion is based on the process analysis approach, which allows an evaluation of the functionality and shortcomings of the entire legal framework concerning language resources and technologies. The article reflects the personal knowledge and insights of the authors gained through their work with legal aspects of language resources and technologies in Estonia and Finland. The analysis may be helpful to CLARIN partners facing similar problems

Kelli, Aleksei

Linden, Krister

Vider, Kadri

English

Helsingin yliopiston digitaalinen arkisto

The Regulatory and Contractual Framework as an Integral Part of theCLARIN Infrastructure: an Estonian and Finnish PerspectivesAleksei KelliKaarli 310119 TallinnEstoniaaleksei.kelli@ut.eeKadri ViderJ. Liivi 250409 TartuEstoniakadri.vider@ut.eeKrister LindénUnioninkatu 4000014 Helsingin yliopistoFinlandkrister.linden@hel-sinki.fiAbstractThe article focuses on the regulatory and contractual framework in CLARIN. The discussion is basedon the process analysis approach, which allows an evaluation of the functionality and shortcomings ofthe entire legal framework concerning language resources and technologies. The article reflects the per-sonal knowledge and insights of the authors gained through their work with legal aspects of languageresources and technologies in Estonia and Finland. The analysis may be helpful to CLARIN partnersfacing similar problems.Keywords: regulatory and contractual framework, CLARIN agreement templates, contractual andexception model.1 Introduction1The nature of language resources (LR) and language technologies (LT) can be analyzed from severalperspectives such as technological, linguistic, ethical and legal. The authors focus on the legal challengesrelating to the development and dissemination of language resources and technologies. From this pointof view, the regulatory and contractual framework (legal framework) constitutes one of core infrastruc-tures of CLARIN.The discussion is based on the process analysis approach, which allows the evaluation of the func-tionality and shortcomings of the entire legal framework concerning LR and LT. The process starts withthe development and ends with the dissemination of language resources and technologies. Differentprocess phases are not addressed separately since they affect each other. Legal issues are defined andanalyzed within each phase.The authors use traditional social science methods and draw on previous legal research conducted bythe authors on LR and LT. The analysis relies on the Estonian and Finnish experience. The article alsoreflects the personal knowledge and insights of the authors gained through work with the legal aspectsof LR and LT in Estonia and Finland. The authors make suggestions for improving the existing legalframework. The analysis could also be helpful to other CLARIN partners facing similar problems.The paper is organized into two main sections. The first section focuses on the establishment of in-stitutional control over the developed language resources and technologies. The second addresses theissue of the development of language resources and deals with the dissemination and potential subse-quent utilization of LR and LT. We also study the case of providing public access to fragments of re-sources in a concordance service versus distributing resources in full for research purposes in light of aresearch exception in the copyright regulation and the CLARIN contractual framework.1 This work is licensed under a Creative Commons Attribution 4.0 International Licence. Licence details:http://creativecommons.org/licenses/by/4.0/2 Establishment of the institutional control over language resources and technologiesThe dissemination and utilization of language resources and technologies depends on several condi-tions. Institutions distributing resources must have sufficient technological capabilities. Additionally,they must be legally entitled to do so. In practical terms, this means that institutions managing resourcesmust have the capacity to enter into valid transactions and have concluded all relevant contracts regard-ing LR and LT.  In order  to  avoid too abstract  an analysis,  the authors  use Estonia as  an example inaddressing these issues.Estonia has set up the Center of Estonian Language Resources (CELR) as a consortium of 3 institu-tions at the national level on December 2, 2011. The consortium consists of the University of Tartu (UT)(as leading partner in CELR), the Institute of Cybernetics at Tallinn University of Technology, and theInstitute of the Estonian Language. The consortium constitutes an organizational framework for thecoordination and implementation of the obligations of Estonia as a member in CLARIN ERIC.The national consortium is expected to perform obligations, which may bind the whole consortium.The problem, however, is that the national consortium is not a legal person in private or public law (legalentity). The consortium is an agreement. Technically speaking the consortium partners could representeach other but this could create legal uncertainty. In the Estonian consortium, each partner works withcertain types of resources. Therefore, the partners have agreed that each one concludes agreements forhis respective field of activity.The Estonian consortium agreement regulates issues relating to the partners’ background and fore-ground IP. However, it does not provide a clear framework concerning the LR and LT developed andowned by persons outside the consortium. To acquire these language resources and technologies, theconsortium partners have to conclude agreements with these persons. Since the aim of CLARIN ERICis to standardize and unify its members’ activities, CLARIN has developed standard agreement tem-plates  (Licenses,  Agreements,  Legal  Terms).  CLARIN  also  has  standard  deposition  agreement  tem-plates. CLARIN deposition license agreements are divided into three categories:1) CLARIN-DELA-PUB-v1.0 (for public use resources);2) CLARIN-DELA-ACA-v1.0 (for academic use resources);3) CLARIN-DELA-RES-v1.0 (for restricted use resources).In principle, the authors support the ideology of CLARIN having three categories of resources andintegrating the approach into a contractual framework (deposition license [DELAs] and end-user licenseagreements [EULAs]). However, when we analyze specific agreements, we can identify ways of im-proving them. The process of translating the CLARIN contractual framework (DELAs and Terms ofServices) into Estonian and making them compatible with the Estonian law provided a good opportunityto scrutinize once again the existing contracts. A very preliminary meeting was held in Helsinki on 21May 2015 to discuss the possible amendments to the CLARIN agreement templates and develop themfurther.2 The results and observations are discussed below.The first observation concerns the structure of the DELAs. All DELAs have almost identical provi-sions. The main difference comes from the provisions concerning intellectual property rights and accessrights (Section 7).3 Therefore, it would be practical to divide the DELA into two parts: a general part forall persons depositing resources and a separate part for selecting a specific category (PUB, ACA, RES).It should be easily achievable in an e-environment.According to the second observation, the provisions on the warranties and indemnity are among themost important clauses of the DELAs.4 In the current version of the DELAs, Section 10 regulates lia-bility and indemnity. The provision should be revised to make the regulation clearer. In the followingtable the current and amended Section 10 is presented:The current provisions The amended provisions10. Legal Obligations 10. Warranties and indemnity2 The meeting was held in Helsinki on 21 May 2015. Participants: Krister Linden, Kadri Vider and Aleksei Kelli.3 There are some differences in annexes too but it should be easy to unify the approach.4 The other important part is the license which owners of resources and technologies grant to repositories.10.1 The Copyright holder shall be responsible forholding a copyright or a sufficient license and/or otherrights based on intellectual property law to the Re-source  and that  any use  of  the  Resource  for  the  pur-poses compliant with this Agreement does not in anyform violate any third party copyright or any otherrights based on intellectual property law or other in-corporeal right.10.2 The Copyright holder is held liable for alldamages and costs he causes CLARIN or the TrustedCentres in the CLARIN Service by breaching any ofthe obligations in 10.1.10.3 Should a third party present a justified claimthat the Resource violates the obligations in 10.1., theResource can be removed from the CLARIN Service.10.1 The Depositor warrants and represents that(i) it possesses all proprietary rights, title and interestin the Resource and has full authority to enter into thisAgreement. The Depositor shall be responsible forholding copyright, related rights and other rights or asufficient license and/or other rights to the Resourceand that any use of the Resource for the purposes com-pliant with this Agreement does not in any form vio-late any third party copyright, related rights or anyother rights.10.2 The Depositor undertakes to indemnify andhold harmless the Repository of any liability, directlyor indirectly, resulting from the use and distribution ofthe Resources, including but not limited to claimsfrom third parties. The Depositor is held liable for alldamages and costs he causes CLARIN or the TrustedCentres in the CLARIN Service by breaching any ofthe obligations in 10.1.10.3 Should a third party present a claim that theResource violates the obligations in 10.1., the Re-source can be removed from the CLARIN Service.In the current version, Section 10 is called “Legal Obligations”. This is not the best choice of wordssince all obligations arising from a contract are legal. Therefore Section 10 should be called “Warrantiesand indemnity”. The amended version also reflects a new terminological approach. The DELA termsidentifying the parties to the agreement are replaced as follows: the Copyright curator (CLARIN Centrereceiving LR and LT) is replaced with “repository” and the Copyright holder (person licensing LR andLT) with “depositor”. Subsection 10.1 and 10.2 are elaborated further to increase clarity. Subsection10.3 was amended to provide sufficient grounds for removal of resources if a third party presents a claimthat her rights are violated. The repository does not have to prove that the claim was justified. In addition,Subsection 10.3 must be compatible with the CLARIN Notice and Take Down Policy.An additional issue regarding the deposition of resources concerns the question whether institutionsshould accept LR and LT on an as-is basis without any representations and warranties. In case a depos-itor does not have title to the resources, it would be out of the question. If resources are developed basedon the copyright exception and/or include personal data, DELAs for the categories ACA or RES aresuitable.3 Development and dissemination of language resourcesLanguage resources have two tiers of rights: 1) the rights of the persons who developed the resourcesand 2) the rights of the persons whose copyright-protected content (sometimes also content with relatedrights) was used when creating the resources. In the previous section, we addressed the first tier and herewe focus on the second tier.From a legal perspective, language resources constitute copyright protected databases (see Kelli et al.2012; Tavast et al. 2013). The creation of language resources often requires the use of copyright pro-tected works. The use, however, can be based on two models: 1) the contract model and 2) the exceptionmodel. The contract model means that a person developing language resources acquires permission touse copyrighted works (books, journal articles, etc.). The exception model is based on a copyright ex-ception allowing free use of works for research purposes. Both models have their pros and cons.The contract model allows negotiating terms for commercial use of resources and making them pub-licly available. The model is expensive even if copyright holders do not ask for remuneration. Admin-istrational costs arise during the negotiations and the management of contracts. There is no guaranteethat the right-holders use identical contracts. This could lead to incompatibility between different con-tracts and restrict the development and dissemination of resources. Another problem is de facto orphanworks (anonymous web posts, blogs etc.) since there is no one identifiable who can give permission fortheir use.The advantage of the exception model is that there is no need to ask for permission from the right-holders. It is possible both to use works of identified authors and works of unidentifiable authors (defacto orphan works). There is no administrative burden to negotiate licenses. The main disadvantage isthat it is not possible to use the developed resources for commercial purposes or make them available inthe PUB category. Dissemination is possible only in the categories ACA and RES.The Estonian Copyright Act has a general research exception allowing development of language re-sources (Autoriõiguse seadus § 19). The draft Copyright and Related Rights Act introduces a specificexception for data mining and text analysis worded as follows: “reproduction and processing of an objectof rights for the purpose of text analysis and data mining, on the condition of attributing the name of theauthor of the used work, the name of the work and the source of publication, except if such attributionis  impossible,  and on the condition that  such use is  not  carried out  for  commercial  purposes”.  It  wasadded for the sake of legal clarity.Finland relies on the contract model. FIN-CLARIN has refrained from paying for resources but hascontributed a minimal sum towards the collective extended license for the Finnish billion word newspa-per corpus which has been scanned and OCRed by the National Library of Finland comprising newspa-pers from 1792 to the present. FIN-CLARIN provides access to the full corpus for non-commercialresearch purposes and access to anyone for small excerpts based on search results.Similarly the billion word blog Suomi24 maintained and distributed by the commercial companyAllerMedia is available in full for non-commercial research purposes via FIN-CLARIN but excerpts canbe used by anyone.  The motivation for  this  by AllerMedia is  that  it  welcomes ideas provided by theresearch community by facilitating access and hopes to provide access to the same data to commercialcompanies against a fee.Language resources and technologies are made available within CLARIN through a specific contrac-tual framework. Firstly, a person interested in using LR and/or LT has to accept the Terms of Services(TOS)  (Licenses,  Agreements,  Legal  Terms).  The  DELAs  and  TOS are  two  sides  of  the  same  coin.When DELA shifts all liability regarding language resources and technologies to the depositors, theTOS disclaims and limits CLARIN’s liability regarding resources to the maximum extent allowed bylaw. Drawing on public licenses such as EUPL, GPL and Creative Commons, we suggest amendingSection 5 of TOS so that it is absolutely clear that the resources are provided on an as-is and as-availablebasis and no liability is assumed.In addition to the TOS, the prospective user also has to accept the EULA attached to the languageresources and technologies.When it  comes to the dissemination of  language resources,  it  is  useful  to  remember the maxim ofRoman law saying “Nemo plus iuris ad alium transferre potest, quam ipse haberet” (Dig. 50.17.54).This means you cannot give others more rights to something than you have yourself (see Zimmermann,1996). In other words, resources developed based on a research exception cannot be licensed in the PUBcategory. In view of this, we study how to provide public access to fragments of resources versus dis-tributing  resources  in  full  for  research  purposes  using  the  CLARIN contractual  framework.  A  set  ofexcerpts (i.e. search results) may be considered derived works, which are subject to the same conditionsas the original work unless otherwise agreed. We may therefore still need a DELA to acquire the rightto distribute the search results publicly.In most cases, the right-holders are willing to make excerpts publicly available while the full corpusis only distributed for academic or restricted purposes. In case there is no research exception, this canstill be agreed using one DELA (as the PUB/ACA/RES templates are quite similar). In both cases, theresource needs two metadata records: one for pointing to the PUB excerpts and one for pointing to theoriginal ACA/RES resource, i.e. we have data with two different uses provided by two licenses in oneagreement.4 ConclusionThe regulatory and contractual framework constitutes an integral component of the CLARIN infra-structure. Similar to technical standards CLARIN also needs unified legal standards. It is in the interestof CLARIN to lobby for an EU-wide mandatory text and data mining exception.CLARIN agreement templates have to be integrated and evaluated as one functional system. Thereare two ways for language resources and technologies to enter CLARIN. Firstly, the employees’ rightsregarding LR and LT are transferred to the employer (i.e. CLARIN national consortium member). Sec-ondly, authors who are not employed by a CLARIN national consortium member have to conclude adeposition agreement. The aim of the DELA is to shift the liability for the resources to its depositors.The wording of the relevant provisions needs to be amended accordingly so that it is very explicit thata depositor is responsible for the resource.Users can access CLARIN resources after they have agreed to the Terms of Services. The TOS ob-jective is inter alia to limit CLARIN’s liability towards users. Resources and technologies are offeredon an as-is and as-available basis. The wording of the provisions regulating liability in TOS should beamended to limit CLARIN liability to the maximum extent.Reference[Autoriõiguse seadus § 19] Autoriõiguse seadus [Copyright Act] (as entering into force on 12.12.1992). RT I1992, 49, 615; RT I, 29.10.2014, 2 (in Estonian). Unofficial translation available via https://www.ri-igiteataja.ee/en/eli/531102014005/consolide (accessed on 12 July 2015);[Kelli et al. 2012] Aleksei Kelli, Arvi Tavast, Heiki Pisuke (2012). Copyright and Constitutional Aspects ofDigital Language Resources: The Estonian Approach. – Juridica International (19), 40-48;[Dig. 50.17.54]. Available at http://www.thelatinlibrary.com/justinian/digest50.shtml (13.7.2015);[Licenses, Agreements, Legal Terms]. Available at http://clarin.eu/content/licenses-agreements-legal-terms(13.7.2015);[Tavast et al. 2013] Arvi Tavast, Heiki Pisuke, Aleksei Kelli (2013). Õiguslikud väljakutsed ja võimalikudlahendused keeleressursside arendamisel (Legal challenges and possible solutions in developing language re-sources). – Eesti Rakenduslingvistika Ühingu Aastaraamat (9), 317-332;[The draft Copyright and Related Rights Act] Autoriõiguse ja autoriõigusega kaasnevate õiguste seaduseeelnõu. Versioon: 21.7.2014 [The Estonian draft Copyright and Related Rights Act. Version: 19.7.2014]. (inEstonian), https://ajaveeb.just.ee/intellektuaalneomand/wp-content/uploads/2014/08/Aut%C3%95S-EN-19-7-2014.pdf, (accessed on 5 May 2015);[Zimmermann, 1996] Reinhard Zimmermann. The Law of Obligations Roman Foundations of the CivilianTradition. – Oxford University Press, 1996.

Regulatory and Contractual Framework as an Integral Part of CLARIN Infrastructure : the Estonian and Finnish Perspectives

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Regulatory and Contractual Framework as an Integral Part of CLARIN Infrastructure : the Estonian and Finnish Perspectives

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Helsingin yliopiston digitaalinen arkisto