Intellectual Property Rights

Introduction

This overview paper briefly explains the landscape of copyright law and its application to Further and Higher Education (FE and HE).

1. Intellectual Property Rights – A Primer

Intellectual Property Rights (IPR), very broadly, are rights granted to creators and owners of works that are results of human intellectual creativity. These works can be in the industrial, scientific, literary and artistic domain. It can be in the form of an invention, a manuscript, a suite of software, or a business name.

In general, the objective of IPR is to protect the right of a copyright author in his work and at the same time allow the general public to access his creativity. IPR maintains this balance by putting in place time-limits on the author’s means of controlling a particular work. The law that regulates the creation, use and control of the protected work is popularly known as Intellectual Property Law (IP).

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2. Types of Intellectual Property Rights

The principal Intellectual Property Rights are as follows:

Copyright
Patents
Trade Marks
Design Rights
Passing off
The law of Confidential information
This paper will focus on copyright, an area of IPR that is of primary concern to those working in the FE and HE. It will give the reader an insight into the legal framework of copyright law as a means of protecting one’s work.

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3. What is a Copyright?

Copyright is one of the key branches of IP law and it protects the expression of ideas. For a work to gain copyright, it has to be original and should be expressed in a material form. Copyright is thus effective upon the creation of the work. It arises automatically and in the UK one does not have to register the copyright in the work before it is protected.

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4. Laws on Copyright

Currently, copyright law in the UK is governed by the Copyright, Designs and Patents Act 1988 (the Act). Part I of the Act deals with copyright law. It has been subject to various amendments and the latest amendments of October 2003 were aimed at bringing the Act in line with the EU Directive on Copyright and Related Rights in the Information Society (EU Copyright Directive) 2001 and the challenges posed by the Internet. The UK being a member of various international conventions and treaties on copyright law, the Act was also amended at various occasions to harmonise it with the provisions of international treaties.

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5. Relevance of Copyright for FE and HE

Copyright is of fundamental importance to FE and HE as they being users, producers and disseminators of information will need to minimise their liability and maximise exploitation. For example, the World Wide Web (www) allows for the public dissemination of this information in an unprecedented manner. Those working in the FE and HE should therefore always be mindful that their work may involve copyright material. Merely because material (e.g. internet content, software, on-line databases or journals) is openly available on the Internet does not necessarily imply that it may be freely used. The vast majority of such material is made available under certain terms and conditions. One should therefore always ensure that the use of online materials complies with the terms of use stipulated by its rights holder.

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6. Entitlement to Copyright

A work will qualify for copyright protection if:

It is of a type protected by copyright under the Act (See below).
It is recorded in some form – e.g. in writing, by a sound recording, on a computer disk, or in a printed form.
The creator is a British citizen or that the work was first published in the UK.
The work meets the requisite degree of originality. A work is original if adequate skill, labour and judgment is expended on creating it.
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7. Works protected by Copyright

The types of copyright works are broadly categorised into:

original literary, dramatic, artistic or musical works,
sound recordings, films or broadcasts and
the typographical arrangement of published editions.
Literary work also includes

(a) a table or compilation other than a database,

(b) a computer program,

(c) preparatory design material for a computer program and

(d) a database.

Dramatic work includes a work of dance or mime. Musical work means any work consisting of music but excludes the words and music of songs.

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8. Rights granted by Copyright

Copyright grants certain rights that are exclusive to its owner. Based on these rights, the copyright owner

(a) can copy the work

(b) issue copies of the work to the public

(c) rent or lend the work to the public

(d) perform, show or play the work in public

(e) communicate the work to the public – this includes broadcasting of a work and also electronic transmission and

(f) make an adaptation of the work or do any of the above in relation to an adaptation

“Public” in the FE and HE refers to its staff and students. So it will be infringement under the right of communication to the public to include on the FE or HE intranet or internet, a students or a copyright owners work without their permission.

Copyright can subsist separately and collectively in the building blocks of any particular work. For example, the elements that constitute a website may include the web page, title, sound effects, images or pictures on the page and the address or domain name. Apart from a copyright on the web site, each of these building blocks grants separate rights to their owners.

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9. Copyright Ownership - Who owns what in a Copyright work?

Copyright ownership can arise automatically or by means of transfer of ownership through an assignment, assignation or licence.

Copyright owner: The first owner of copyright in a work is the person who created the work. Joint ownership may arise where more than one author is involved in creating a work.

Copyright ownership in computer generated works: In the case of computer generated works, the creator is the person by whom the arrangement necessary for the creation of the work is undertaken.

Copyright ownership within FE and HE: The beneficiaries of copyright ownership in FE and HE can be its staff (lecturing, research, general), outside contractors or students. Copyright maybe owned by the staff on lecture notes or teaching materials either as a sole author or jointly with outside contractors and the students may own copyright in data collected for writing papers.

Copyright ownership in an employer-employee relationship: Copyright of works created during the course of employment will be owned by the employer unless an agreement to the contrary is in place. Additionally, copyright ownership is also dependent on the question of whether the work in question was produced during the course of employment.

Ownership of copyright by staff: Copyright ownership of works created by FE and HE staff is principally dependent on the question whether the creation of the work was within the scope of his/her job specification. The rule applies irrespective of the question whether the staff had used the employer’s resources to produce the work and whether the work in question was produced during the office hours of the staff. This issue has great significance within FE and HE. Many academics in the institutes produce content in the form of articles and other publications during office hours whilst using the equipment of the institution. In some cases, their primary job specification may only relate to their teaching or lecturing function. Here, the reality is that FE and HE institutes have by convention, expressly or impliedly, waived their copyright in materials produced out-with the remit of the academics job specification. The rationale of this may be is by allowing the academic to retain copyright in the work he or she is encouraged to produce more material thus raising the profile of the institution. It can also be observed that one of the common deliverables currently included in the job specification of most academic staff is to raise the research profile of FE or HE institutes through publications in journals. It is also worth point out that academics often give their copyright to academic journals and their institutions pay for subscription to the journals that may contain articles, which in law it is the first owner of.

Copyright ownership in collaborative research: In the case of collaborative research partnership between FE and HE institutes and an outside partner copyright ownership can be held jointly. It is often the case that an agreement regulates this partnership and so ownership rights are distinguishable.

Copyright ownership by students: Relationship between students and FE and HE institutes are based on a special type of contract. These agreements are the various terms and conditions in the documentation (e.g. prospectus) that passes between them. In the absence of special terms and conditions in these documentations, copyright ownership in a work created by the student normally rests with the student. FE or HE institutes would therefore be better protected if it were to state in a prospectus or student handbooks that it may own copyright in certain works created (e.g. databases, software, and thesis publications) by the students. A feasible option so that both FE or HE institutes and its students reap mutual benefits from this collaboration would be to allow the student to retain ownership in his work and be compensated by means of a reward or income and the FE or HE institute to have the rights to use the work (e.g. to publish the work or to use it as a teaching material).

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10. Additional Rights

Related Rights: The works of performers, phonogram producers and broadcasting organisations are protected by means of related or neighbouring rights.

Moral Right: The exclusive rights of a copyright owner can be sold or passed on. Apart from these rights, a copyright owner is also conferred certain rights which remain with the original creator and affects how subsequent owners deal with the work. Such rights are known as moral rights.

Moral rights comprise

the right of the creator to be identified as the author of a work (also called the ‘right of attribution’ or ‘right to paternity’)
the right to object to derogatory treatment (prevent his work being subjected to any distortion or mutilation) of his/her work or derogatory action which would ultimately be prejudicial to his/her honour or reputation (also known as the ‘right of integrity’).
the right to object to false attribution, i.e., the right not to be named as the author of a work which he or she did not create.
An author is able to exercise his moral right on works distributed over the internet by using the electronic rights management information. The rights management information is any information that identifies the work, its copyright owner or provides information about its terms and conditions of use or any other data that represents such information (for example © JISC Legal 2006). Copyright law treats it as an infringement to knowingly or wilfully remove or alter any such information and to distribute, import or communicate to the public copies of such work.

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11. Duration of Copyright Protection

The duration of copyright is dependent on the type of work in question. Given below are examples of some works.

Literary, Dramatic, Musical and Artistic works: The life time of the author plus a period of 70 years from the end of the year in which the author dies.
Computer generated works: 50 years from the date of creation of the work. A work is deemed to be computer generated where there is “no human author”.
Sound recordings: 50 years from the end of year in which it was made or published.
Broadcasts– 50 years from the end of the year of broadcast.
Typographical arrangement of published editions: 25 years from the year of first publication.
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12. Infringement of Copyright

When is a work infringed? Copyright is said to be infringed when one of the exclusive rights of an author is performed by a party without the consent or authorisation of the author. This infringement is called primary infringement. Providing accessories for infringing the exclusive rights or assisting in the making or distribution of infringing copies is also treated as an infringement and is referred to as secondary infringement.

Making temporary copies: Browsing of the Internet creates temporary copies of web pages on the cache of a computer. Until 2003, such temporary copies were considered as infringing copies. The new law has however changed the position. It clearly states that the making of temporary copies is not an infringement so long as it is a transient copy, has no economic significance and is done solely for the transmission of a work or for its lawful use. The same rule applies in the case of sending copyright work by means of fax.

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13. Exceptions to Infringement

Copyright law provides a catalogue of basic exceptions and defences. It permits the use of copyright works for situations considered as ‘fair’, if permitted by a licence, or if permitted under a right holders guidance or notice.

Fair dealing with a copyright work constitutes one of the significant of these permitted acts. The scope of fair dealing in some specific situations of importance to FE and HE is detailed below:

Research or private study: Research or private study is not collective but are individual acts. The current UK copyright law permits copying of works for research or private study only if it is aimed at a non-commercial purpose. The law also requires that sufficient acknowledgment be given to the copied source when used in research or private study. For academic staff and research students in FE and HE, this creates an obligation of using proper citations during publications. The only exception is situations where acknowledgement would be impossible for practical reasons.

Educational purposes: Fair dealing with copyright works in the educational environment is permitted if the source is acknowledged, not done through reprographic means (e.g. multiple photocopying, faxing, scanning) and not aimed at a commercial purpose. Thus, a teacher instructing students in a commercial FE or HE institute (e.g. profit oriented ones) or imparting training courses to external company staff should be aware that hand outs and materials for such events observe these guidelines. For teachers involved in setting examination papers, the law requires them to include sufficient acknowledgement of the copied matter where practicable. Students answering these questions in exams are luckily exempt from the requirement. The law also covers the recording of web broadcasts by educational establishments. Primarily, to record a transmitted broadcast FE or HE institutes would need an ERA licence. In the absence of such a licence, the FE or HE can make use of the broadcast only if it acknowledges recording of the data or uses it for non-commercial purposes and transmits it only to persons within the premises of the educational establishment. In practice, this can prevent the commercial FE or HE institutes (without ERA) from recording and re-broadcasting content through e-transmissions for distance learning purposes on internet or an intranet.

Library uses: The making of copies from books in libraries by its users (staff or students) is fair dealing only if it is made for research or private study for non-commercial purposes. This would require the user to sign a copyright declaration form confirming that the use is purely non-commercial prior to making a request.

Criticism and review: Fair dealing for criticism and review is permitted under the new law only if it is accompanied by sufficient acknowledgement and the work is made available to the public.

Visually impaired people: The new law has created special exceptions for visually impaired people. A visually impaired person or FE or HE institute may make copies for a visually impaired person if it is for his/her personal use. But this is subject to the condition that the visually impaired person or the institute already has legitimate master copy (bought or borrowed) and that a copy of the work is not commercially available. An additional exception that caters to visually impaired persons allows the making of multiple copies if the author of the work is acknowledged and if the making of the copy does not interfere with the legitimate exploitation of the work.

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14. Enforcement of Copyright

The copyright owner enjoys considerable ancillary rights and remedies to enforce his copyright in a work. To enforce his right he can move the court for the award of damages, serving of injunctions restricting the infringer from carrying out the infringing activity or interdict, for payment of profits and/or for the granting of an order that the infringing materials be destroyed or delivered. Apart from this, copyright infringement may also attract criminal sanction for the criminal offence of piracy.

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Mahesh Madhavan

24 March 2006

© JISC Legal - www.jisclegal.ac.uk

http://www.jisclegal.ac.uk/ipr/IntellectualProperty.htm#Primer