Intellectual Property, Copyright, and Licensing

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Module: RDF: Principles of Open Access and Open Access Publishing
Book: Intellectual Property, Copyright, and Licensing
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Date: Tuesday, 16 April 2024, 5:23 PM

Description

Intellectual Property, Copyright, and Licensing

1. Introduction to Intellectual Property, Copyright, and Licensing

This section covers copyright and licences in relation to author rights and user permissions. The method of delivery is mainly text; therefore, a summary of learning points is given at the end of each section.

On completion of this section, you will expand your knowledge on copyright and licences in relation to publishing agreements.

Thinking points

  • Would you sign over all your rights to a publisher to get your work published or would you negotiate with a publisher to retain the copyright for your paper?
  • Have you used other people's work in the course of your research and were you aware of what you were allowed to do with this data?
  • Have you ever considered the re-use permissions for your work, i.e. what would you allow users to do with your paper?

2. Intellectual Property

Copyright legislation is part of the wider body of law known as Intellectual Property.  The term Intellectual Property refers broadly to the creations of the human mind.  Intellectual Property rights protect the interests of creators by giving them property rights over their creations.

The following is a list of subject matter protected by Intellectual Property rights:

  • literary, artistic and scientific works;
  • performances of performing artists, phonograms, and broadcasts;
  • inventions in all fields of human endeavor;
  • scientific discoveries;
  • industrial designs;
  • trademarks, service marks, and commercial names and designations;
  • protection against unfair competition;
  • all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Intellectual Property is usually divided into two branches, namely Industrial Property, which broadly speaking protects inventions, and Copyright, which protects literary and artistic works.

[Extracts from Understanding Copyright and Related Rights handbook produced by World Intellectual Property Organization]

Take the virtual tour 'Intellectual property in everyday life' below by World Intellectual Property Organization to see how you are surrounded by intellectual property everywhere.


Summary

When you produce a work as a result of your own intellectual effort, it is your intellectual property and it belongs to you.  There are exceptions such as creating a work as part of your employment, in which case the intellectual property rights are owned by the employer.

3. Copyright

Copyright relates to artistic creations, such as books, music, paintings and sculptures, films, and technology-based works such as computer programs and electronic databases.  In most European languages other than English, Copyright is known as author’s rights.  The expression Copyright refers to the main act which, in respect of literary and artistic creations, may be made only by the author or with his authorisation.  That act is the making of copies of the work.  The expression author’s rights refers to the creator of the artistic work, its author.  It thus underlines the fact, recognised in most laws, that the author has certain specific rights in his creation which only he or she can exercise (such as the right to prevent a distorted reproduction).  Other rights (such as the right to make copies) can be exercised by other persons, for example, a publisher who has obtained a licence from the author. 

Works protected by Copyright are:

  • books, pamphlets and other writings;
  • lectures, addresses, sermons;
  • dramatic or dramatico-musical works;
  • choreographic works and entertainments in dumb show;
  • musical compositions with or without words;
  • cinematographic works to which are assimilated works expressed by a process analogous to cinematography;
  • works of drawing, painting, architecture, sculpture, engraving and lithography;
  • photographic works, to which are assimilated works expressed by a process analogous to photography;
  • works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science;
  • translations, adaptations, arrangements of music and other alterations of a literary or artistic work, which are to be protected as original works without prejudice to the copyright in the original work;
  • collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations, are to be protected as such, without prejudice to the copyright in each of the works forming part of such collections.

[Extracts from Understanding Copyright and Related Rights handbook produced by World Intellectual Property Organization]


Summary

You own the copyright to your intellectual property (except where a funding or sponsorship agreement states otherwise) and only you have the right to do whatever you want with it.


4. Transfer of Copyright and Third Party Copyright

The laws of many countries provide that the initial rights owner in a work may transfer all economic rights to a third party (moral rights, being personal to the author, can never be transferred).  Authors may sell the rights to their works to individuals or companies best able to market the works, in return for payment.

These payments are often made dependent on the actual use of the work, and are then referred to as royalties.  Transfers of copyright may take one of two forms: assignments and licences.

Under an assignment, the rights owner transfers the right to authorise or prohibit certain acts covered by one, several, or all rights under copyright.  An assignment is a transfer of a property right.  So if all rights are assigned, the person to whom the rights were assigned becomes the new owner of copyright.

As well as owning copyright works, a person may wish to make use of someone else's copyright protected works.  There are certain very specific situations where people may be permitted to do so without seeking permission from the owner.  A person would not normally need to seek permission if they wish to use less than a substantial part of a copyright protected work.  However, courts define ‘substantial part’ as a qualitatively significant part of a work even where this is not a large part of the work.  Therefore, it is quite likely that even a small portion of the whole work will still be a substantial part and permission may need to be sought.

If a person’s use of copyrighted work does not fall within these exceptions, they may consider buying the copyright or, as is more usually the case, obtaining a licence from the owner for their agreed use.

Locating the copyright owner can sometimes be difficult but failure to get permission may result in legal action against the user.


[Extracts from 'Intellectual Property Office' website]


Summary

  • Since you own the copyright to your intellectual property, only you can decide whether to retain it or transfer it to third parties.  RCUK and The Wellcome Trust, as well as some other funders, ask you to retain the copyright of your work so that you can give others permission to use them.
  • Do not forget that, when you use others' work in your research, you are using the intellectual properties of other people and they own the copyright to their work as you own the copyright to your own work.  You may need to seek the owners of these work and ask permission to use these work in your research unless there are explicit permissions (licences) attached to these works.


5. Creative Commons Licences

Creative Commons is a non-profit organisation that enables the sharing and use of creativity and knowledge through free legal tools.

Their copyright licences provide a simple, standardised way to give the public permission to share and use an author’s creative work — on conditions of the author’s choice.  CC licenses let the author easily change their copyright terms from the default of ‘all rights reserved’ to ‘some rights reserved’.

Creative Commons licences are not an alternative to copyright.  They work alongside copyright and enable the author to modify their copyright terms to best suit their needs.  For more information, check the Creative Commons website.

Below is a summary of the Creative Commons Licences:

CC licences

Image copyright © 2013 Foter Blog at http://foter.com/blog/files//2012/11/Foter.com_infographic_CC.jpg

Summary

  • Creative Commons Licences allow you to give permissions to others to use your copyrighted work.
  • RCUK and The Wellcome Trust funded researchers must publish their work with a relevant Creative Commons Licence, specifically CC BY for the paid or CC BY-NC (or the equivalent) for the self-archiving route, so that others can use and build on these work.

6. Author-Publisher-Copyright Transfer Agreements

Some publishers require authors to sign over the copyright and, therefore, the related permissions to their papers.  This is in contradiction with funders' Open Access mandates because, if authors do not own the copyright to their work, they do not have the rights to grant others permissions for the re-use of their work.  Open Access publishing mandates, both Gold and Green, require authors to be able to grant these permissions.

Researchers need to be careful not to sign over their rights while signing publishing agreements when their work is accepted for publication.  They need to read any form carefully and seek legal advice if something is not clear or if they are in doubt.  Once the agreement is signed, they should keep a copy for future reference.

ACM is one of the publishers asking authors to transfer copyright upon the acceptance of their paper for publication.  The agreement can be found here and is valid as of September 2012.  The form asks the author to transfer the copyright, and related permissions, to the work over to the publisher.  There is detailed explanation of why this should be done on the publisher’s copyright page, also outlining all the restrictions on re-use permissions.  For an RCUK funded researcher, for example, publishing in one of the ACM journals is not an option from 1 April 2013 since they are not compliant with RCUK funders' open access mandates, which ask for commercial re-use permissions when a fee is paid and self-archiving options in repositories when a fee is not paid.  ACM, with its publishing policy as it stands, is not compliant with either of the Open Access publication routes.

However, this does not mean that authors cannot negotiate deals with publishers.  There are author addenda that authors can ask publishers to sign.  For example, SPARC, the Scholarly Publishing and Academic Resources Coalition (in partnership with Creative Commons) has created a free legal document, ‘SPARC Author Addendum’ available here, which modifies the publisher’s agreement and allows researchers to keep key rights to their articles.  A researcher negotiating with ACM, for example, can use this addendum before completely signing off rights to his or her work.

The QM Library also has an author addendum.  Contact the Research Support Librarian for details.

Summary

  • Do not automatically transfer the copyright to your work to publishers, especially when your funder requires you to retain it and give others permission to use it; read your funder Open Access mandates carefully.
  • Negotiate with publishers that ask you to transfer the copyright to your work over to them.

Take the Quiz or continue to the next section 'Publishing in an Open Access Journal'