Intellectual Property and Copyright

Intellectual Property

Intellectual Property Rights (IPR) are those that an author has over an original work they have created and the protections they are afforded by law. Working within a public sector body such as a university a number of specific rights may be applicable to both researchers and the University.

The following are covered by the term Intellectual Property:

• Copyright
• Design Rights
• Trademarks
• Patents
• Moral Rights
• Confidentiality / Trade Secrets
• Performers Rights
• Database Rights
• Plant Breeders Rights

 

Copyright

Copyright is legislation that covers the rights of an author to exploit and/or protect their creative output as outlined in the Copyright, Designs and Patents Act 1988.

 

Criteria

The criteria for copyright protection are that a work is original, involves significant effort and skill in its production, and that it has some form of physical expression.

Granting copyright

Copyright is automatic and does not need to be registered, however for written work an author can include a copyright legend ©, the date of creation, and their name as an added protection.

The duration of copyright differs depending on the medium of the work. 

• For literary, artistic, dramatic, musical, and film works (from 1994), copyright lasts for 70 years from the end of the year in which the author/director/composer died.
• Sound recordings, broadcasts and performers rights last for 50 years following the end of the year in which a work was last performed.
• Typographical rights last for 25 years from the end of the year of publication.

This legislation applies to work created on or after 1st August 1989. When the copyright period expires a work can be copied freely and is considered to be in the public domain. A work is covered by the copyright law of the country in which it was first published or performed.

Copyright protection advice from UK Copyright service

• Ensure your work is properly marked
• Register your work
• Keep or register supporting evidence
• Create an agreement between co-authors

Exceptions to copyright

• Non-commercial research and private study
• Criticism and review
• Reporting current events
• Teaching in an educational institution
• Accommodating disabilities

These exceptions are sometimes described under the heading ‘Fair Dealing’.  Fair dealing exceptions do not apply when copyrighted work is included in a publication.

If a work is published (this includes posting to an institutional repository), permission must be sought from the copyright holder.  For electronic publishing, where copyright cannot be obtained, copyrighted material may be removed and added to appendices that are not published.

Author Addendum

• Authors can safeguard certain usage rights for their publications by using an author addendum.  
• This can be done at the point the contract is concluded and limits the need to go through the copyright transfer agreement in detail.
• Many author addenda are freely available on the Internet. There is a list of links to some of these author addenda at the Open Access Directory website

Infringing copyright

• Copyright is infringed when all or a substantial part of a work is copied without the permission of the author or copyright holder.  
• What constitutes ‘substantial’ is not defined in law and can relate to as small a section of a work as a phrase, if that is judged important.  
• In 2010 a Fair Dealing defence was rejected when 11 words were considered copyright infringement by the European Supreme Court.

Who owns copyright?

The author or source of a work is the first owner of copyright unless that work is created in the course of employment, in which case the first owner of copyright may be the employer. An employment contract can state that the author retains rights as the first owner of copyright.

Section 12.2 in Section 12 - Copyright from, University of Dundee: Guidelines on Research and Service Contracts, Institutional/Private Consultancies, Patents and Commercial Exploitation through Licensing and Spinout Company Activity by University of Dundee

Except where specifically provided by agreement between the Court and the member of staff concerned, the Court does not claim copyright in books, articles for learned journals or works of fine art (i.e. paintings and sculptures.

The University's Research Degrees Quality Code is available from the Registry web pages and contains a section on IPR relating to research postgraduates.

All taught postgraduate and undergraduate students retain their own IPR relating to any work they undertake whist attending university. Although there may be cases where individual assignations to the university are appropriate in order to comply with the conditions of a grant.

What do I need to know?

• Within a research paper or thesis an author may wish to reproduce extracts published in books or journals, or illustrations such as images, maps, photographs, tables or diagrams.
• The copyright for these items lies with the original author or the subsequent copyright holder – also referred to as the ‘third party’.  
• Their permission to reuse these items must be sought before the work can be published.  
• In reusing copyrighted material, some publishers will charge a fee.
• Previously print theses were not affected by third party copyright as inclusion in a university library is not considered publishing, however posting to an online repository is regarded as publishing.  
• If there are issues regarding copyright infringement, authors of theses may need to submit an abridged version of their thesis, i.e. unless permission is given to reuse copyrighted material in a thesis.

How to go about obtaining permission to use copyright protected work

• Contact the publisher and/or author
• Contact the appropriate licensing organisation
• Contact the website owner
• Keep a record of all correspondence

Agencies that operate licensing schemes

• Copyright Licensing Agency (CLA) 
• The Design and Arts Copyright Society (DACS) 

If the copyright owner does not respond to a request or cannot be located, then you have not obtained permission and legally you should not reproduce the work.

Orphan Works

• Where a work is still within copyright but the author, or multiple authors, are not known or cannot be traced, this is classed as an orphan work.  
• If there is at least one traceable author a work is not an orphan work. 
• If an author has been traced but has failed to respond to a request to reuse the work, it is not an orphan work. 

Should you decide to take the risk of copying an orphan work you are advised to document evidence of due diligence in your efforts to contact the original rights holder.  

Due diligence involves all three of these actions:

• Contacting relevant licensing agencies
• Searching databases within the field
• Exhaustive research on the Web

Such evidence would not necessarily protect against prosecution – copying without permission is an infringement of copyright. Further guidance available from the Intellectual Property Office: Copyright: orphan works.

Intellectual property with commercial potential

• Where research may have commercial potential, advice should be sought on IPR matters from the Intellectual Property Manager in Research and Innovation Services (RIS).
• The University of Dundee Intellectual Property Guide has further guidelines on the protection of IPR, confidentiality agreements, and patents.
• Researchers can download the THEROS Intellectual Property Guidelines from the RIS webpages.  
• The THEROS guidelines provide research staff with a ‘practical introduction to the subject of IPR and to assist in identifying the IPR you may generate.

Patents

• A patent allows the holder to protect their interests with regard to their invention should they wish to exploit it commercially.
• It must be applied for and there are associated costs.
• Patents last for a shorter time period than copyright.  
• Provided that annual renewal fees are met, patents can last for 20 years, but are limited to the country in which they are granted.
• Intellectual Property Office: Patents: detailed information.

CREATe - UK Copyright and Creative Economy Centre, University of Glasgow

Intellectual Property Office Homepage

JISC - Guide to Intellectual Property Law

JISC - IPR and Licensing Guides and Toolkits

Lambert Toolkit is for collaborative research projects between universities and companies.

Web2Rights has a host of useful guides, sample letters, and templates for diagnosing copyright issues and gaining permissions. They include information on contracts and employment, Freedom of Information, Data Protection, and Third Party Copyright.