Doctoral Training Workshops A Research Student’s Guide to Intellectual Property Rights 10 February 2015 Dr Malcolm Stokes.

Doctoral Training Workshops

A Research Student’s Guide to Intellectual Property Rights

10 February 2015

Dr Malcolm Stokes

Key Questions:

• What are Intellectual property rights?• What constitutes intellectual property (IP)?• What can I do/not do with IP (Restricted/Permitted Acts)?• How is IP protected

Intellectual Property Rights

• Legal rights given to a person(s) concerning their creations

• Usually gives the creator an exclusive right over usage for a given period

• Understand your rights and the rights of others

Intellectual Property Rights

Need to respect the IPR of sources you useI. So, for example, not only do you need to fully reference your

sources, but make sure you have permission to use them (e.g. citing the source of a photograph does not give you the right to include it in your own publication)

II. Think of Intellectual Property as any other form of property – if it something that belongs to someone else, you need their permission to use it (just like using their bike, house or garden)

III. For PhD/MPhil theses & Master’s dissertations you are unlikely to need permission to use copyright material (exemptions: examination purposes)

Types of Intellectual Property

• Patents (inventions)• Trade marks (brand) • Designs (product appearance) • Copyright (literary, artistic, recordings, broadcasts,

software, multimedia) Clear source of information Intellectual Property

Office Website http://www.ipo.gov.uk/home.htm

Copyright in the UK

Embodied in the Copyright, Designs and Patents Act 1988•Amended several times / consolidated into single text•Complies with World Intellectual Property Organisation (WIPO)•The UK Intellectual property office (IPO) provides useful overviews of IP. http://www.ipo.gov.uk/copy/c-law•You do nort have to stamp a work with the © copyright symbol, year of publication and name of the copyright holder. However, this is an established practice in the UK.

Protection under the 1988 Copyright Act

• Economic rights are designed to protect a copyright holder from being disadvantaged financially.

• Moral rights are also protected under the Copyright Act. • These include the right to be:

– identified as the author (or director) of a work– the right to object to derogatory use of a work – the right not to allow false attribution

Copyright covers defined ‘work’ (not just an idea)

Works protected by Copyright• Original Literary Works

• Articles, Books, Conference Papers, Theses, Poetry, Musical works, Computer Programs, pamphlets (for translations/adaptions/collections of works the test is sufficient originality)

• Original Musical Works

• Musical Compositions, Symphonies, Film Scores.

• Original Dramatic Works

• Plays, Scripts, Screen Plays, Mime, Choreography

• Original Artistic Works

• Painting, Drawing, Sculpture, Jewellery, Graphics, Architectural Designs, Buildings, Maps, Charts, Carvings, Photographs, engravings.

• Performances

• Stage, Films, Sound Recordings, Broadcasts (TV, Radio, Satellite, Cable, Internet), speeches.

Duration of Copyright

• Original Literary, Dramatic, Musical & Artistic Works - Life Of The Author/Owner Plus 70 YEARS

• Broadcasts (including via internet) 50 YEARS• Sound Recordings 50 YEARS• Film - Life of up to 4 Authors1 Plus 70 YEARS• Published Editions 25 YEARS• Performances 50 YEARS• Designs 15 YEARS

1Director, Author of the Screenplay, Author of the Dialogue and Composer of any Original Soundtrack

Ownership of Copyright

• This is an automatic right upon the creation of a work• The ‘default position’ is that copyright initially belongs to

whoever brought it into existence• Under UK law no formality is needed to ‘register’ original

work (e.g. publishing or performance establishes copyright)

• BUT copyright ownership can be part of terms and conditions of employment or another contract that you sign

Ownership of Copyright

• Assigning of IP rights to the OU

• University’s obligations to protect and exploit IP

• Transfer of IP to other organisations

• Copyright in scholarly work (journal articles, personal notes (excluding research/laboratory notebooks), theses, dissertations, books & monographs is owned by the student.

• Patentable work is owned by the University. Creations / processes that provide a commercial opportunity will be protected and when licensed, the creator will share in the income.

Restricted and Permitted Acts

• Restricted Acts are what you cannot do with copyright materials belonging to someone else without their permission

• Permitted Acts are the exceptions which is what you can do with copyright materials belonging to someone else

Restricted Acts

• Copying• Issuing Copies to the Public• Performing, Showing or

Playing to the Public• Broadcasting• Adapting• Storing in any Electronic

Medium• Rental and Lending

• Importing Infringing Copies• Dealing In Infringing Copies• Providing Means For Making

Infringing Copies• Provision of Premises or

Apparatus for Infringing Performances

• Authorising Infringement

Permitted Acts • Insubstantial Use • Non-commercial Research or

Private Study • Fair Dealing for the Purposes

of Criticism or Review • Fair Dealing for the Purposes

of Reporting Current Events • Bona Fide Examinations• Recording at Home For 'Time-

Shifting' Purposes

• Recording of Broadcasts by Educational Establishments (for access from premises owned by the institution)

• Photocopying under Copyright Licensing Agency Licence (which OU has)

• Instruction in the making of films or soundtracks

• Transformation - with Caution

Maps

• Ordinance Survey is very restrictive (though easing); even if you pay to use their map they claim copyright on your derived version!

• Use Open Street Map (a Creative Commons open source wiki world mapping resource:

http://www.openstreetmap.org/

• This is editable and brilliant for research purposes

Copyright Exceptions

Insubstantial use: •There is no legal definition of insubstantial and this term is not mentioned in the Copyright and Designs Act. However, case law would suggest that insubstantial use is permitted.

I. less than 400 words of continuous prose from a book;

II. less than 800 words of discontinuous prose from the same source (broken text must be no more than 300 words);

III. Care must be taken as this is qualitative as well as quantitative (one critical line could be considered to be substantial)

Fair Dealing

Specific instances where formal permission is not required

• Research (non-commercial)• Private study• Criticism or review• Reporting of current events

•You can make single copies or take short extracts of works

•Quotes for the purpose of review or criticism (e.g. in a Literature Review or to justify a research method).

•This group covers most academic uses you are likely to face

•Sufficient acknowledgment is a legal requirement

Bona Fide Examinations

• Works submitted for examination purposes only

• Technically this applies to all of a thesis or dissertation

• But will restrict what you can do with the thesis or dissertation (cannot circulate it for non-examination purposes, put on website or make copies for any purpose other than examination)

• In practice it is best not to rely on this exception

Databases

• By selection / arrangement / verifying of data the contents constitutes the author’s intellectual creation

• Duration of protection 15 years

Infringement:• Permanent /temporary transfer of substantial part of the contents

to another medium or making it available to the public by any means

Fair dealing:• Very limited / applies only to licensed users (extractions for

teaching or research and not commercial use) acknowledgement is necessary

Governed by Copyright and Rights in Databases Regulations 1997

http://www.legislation.gov.uk/uksi/1997/3032/made

Factual Information and Reworking

• There is no copyright in factual information or ideas only the way they are presented

• Information may be taken from charts, tables and illustrations and presented in a different way. For example information from a pie chart represented as a bar graph would not require copyright clearance (although the source of information must always be quoted)

• Can be possible (but be careful) for maps

Web Materials

• Same copyright rules apply unless otherwise stated

• But be careful that the original website is not in contravention of copyright – if it says ‘open access’ or that downloads are ‘copyright free’ and they are actually another person’s copyright material you are still breaking the law!

• A useful guide on copyright in the digital environment is at: http://www.caret.cam.ac.uk/copyright/index.html

• If you are creating your own web page start from scratch. Taking and adapting someone else’s web pages is a clear breach of copyright law.

Open Government Licence (OGL)

• The OGL is a free licence to enable use of government information and public sector information without the need for formal agreements or any registration transaction

• Allows you to copy, publish, distribute and transmit the information; adapt the information; exploit the information commercially

• Does not apply to third party materials reproduced in government and public sector documents.

• Source must be acknowledged and not used in a misleading way – see terms and conditions for re-use at:

http://www.nationalarchives.gov.uk/doc/open-government-licence/

Interviews

• Copyright in the spoken work - (resides with the speaker)

• Copyright in recording - (resides with recorder / transcriber)

Permission for use:

• Same way as for literary or artistic works

• Useful guidance from the oral history society

http://www.ohs.org.uk/ethics/index.php

Case Studies

1. Rogers versus Koons2. Associated Press versus Fairley3. Cariou versus Prince

Photograph: Art Rogers – Puppies 1985 /Jeff Koons String of Puppies – 1988  (both via The Design Observer Group) http://designobserver.com/feature/art-rogers-vs-jeff-koons/6467

1. Question: has Jeff Koons infringed Art Rogers’ copyright?2. If the answer is yes, why has copyright been infringed

Rogers versus Koons

The Associated Press vs Fairley

Photograph: Mannie Garcia – 2006 (via The New York Times); Poster: Shephard Fairley – 2008 (via Wikipedia)

1. Question: has Shephard Fairley infringed Associated Press’ copyright?2. If the answer is yes, why has copyright been infringed

Cariou v Prince

Photograph: Patrick Cariou – 2000; Adaptation: Richard Prince – 2008 (both via artnet)

1. Question: has Richard Prince infringed Patrick Cariou’s copyright?2. If the answer is yes, why has copyright been infringed

Open Source

• Some materials are provided on an ‘Open Source’ basis• The copyright owner permits you to use their materials

under a set of specific rules• Check conditions – e.g. you need to sign up to a licence

to share what you do with the material with others via a website

• This is often used by collaborative web communities • (for example the use of open source to develop

energy-efficient technologies) http://www.40fires.org/

Creative Commons

• Creative Commons is an organisation that provides a legal structure for Open Source working

• Their licenses allow creators to specify which rights they reserve, and which rights they waive. For details see:

http://creativecommons.org/– Wikipedia is one of the notable web-based projects using a Creative

Commons license– Openstreetmap is another

• Usually for non-commercial uses• Licence requires you to acknowledge source and to share what

you do• See Wikipedia entry on Creative Commons

Creative Commons

• Creative commons licences are not an alternative to copyright

• They allow you to specify the conditions of re-use of your material

• You still retain the copyright and moral rights in your material

Example of marking:

• The photo X is © 2009 Jane Lawson, used under a creative commons attribution non-commercial licence: https://creative commons.org/licenses/by-nc/4.0/

Getting permission to use

• Contact copyright owner for permission

• Get documented proof that permission has been granted (and any conditions applying)

• Restricted uses may obtain permission more easily or cheaply (e.g. for research publication purposes only)

• OU Rights Department can advise and help with obtaining permission http://intranet.open.ac.uk/lts/key-information/business-planning/rights.shtml

Protecting your Copyright Cake

• Copyright can be sliced up in a lot of ways – and then each bit sold off separately

The WorldU.K.

The Territory/Media Slice

PrintTVFilmTheatreMerchandising

Electronic & DigitalMedia

Rest of the World

Like physical property, use of rights can be sold indifferent ways

• For example, if you own a house you a can sell the house, rent the house, or rent out rooms

• You can use it to raise capital • You can transfer all or part of your rights to a third party

Territorial Layers of Exploitation for a Book

Narrowcast

Video: On Demand /In Home Viewing/ Rental/ Non-Theatric

Hardback

Paperback

Broadcast

Computer -Based Systems

UK

License to publish• Many journals ask you to assign all

copyright to them • You may be able to arrange with a

publisher a particular set of rights under a License to Publish

• Some journals, while still asking for full copyright, now include a list of additional permitted uses

• Think ahead about what you will use the work for in future

Depositing publications on Open Research Online (ORO)

• Unless permission is granted, you cannot upload the publisher-produced PDF of most articles. The majority of journal publishers retain copyright of the publisher-produced PDF through the copyright transfer agreement.

• However most publishers (around 91%) have now updated their copyright policies to allow the final draft version of paper to be held on open access repositories.

• The SHERPA/ROMEO site (http://www.sherpa.ac.uk/romeo/ ) provides an updated and easily accessible list of publishers’ copyright policies.

• Check with ORO Team for help (Email: lib-oro-team)

The Authors’ Licensing and Collecting Society (ALCS)

• Once you start publishing it is worthwhile registering with ALCS

• ALCS represents the interests of UK writers and aims to ensure writers are fairly compensated for any works that are copied, broadcast or recorded. 

• In 2007-08 ALCS paid out a total of £18.6 million to over 46,000 writers.

• For details see: http://www.alcs.co.uk/

Patents

• Patents are about protecting commercial rights• A Patent gives an inventor a right for a limited period

(up to 20 years in the UK) to stop others from using the invention without permission

• Patents are about functional and technical aspects

Patents registration

• Unlike Copyright there is a formal registration process• But there needs to be non-disclosure before registration

– if an invention is released onto the market or explained in a publication before an application is filed it will not be permitted

• Even a conference presentation could make a patent application invalid

• See UK Government Intellectual Property Office website for details at http://www.ipo.gov.uk/

OU Postgraduate Research Student Policy on Intellectual Property (IP)

• OU Research IP policy can be found at:http://intranet6.open.ac.uk/research-scholarship-quality/main/intellectual-property-and-legal-agreements

• The assignment of IPR to the University is to allow the OU to protect you;

• It is part of treating our PG students the same as staff;• Postgraduate research students hold the copyright to the text in

their thesis and to research articles;• If you think your research will produce something that could be

patented, discuss this with your supervisors / Enterprise support office

Further Support• OU Rights Department Website is:

http://intranet.open.ac.uk/lts/key-information/business-planning/rights.shtml

• Enterprise support office: [email protected]