Copyright and International Research

Legal Counsel ( IPR), Maria Rehbinder, Aalto UniversityVisualizations: Animator, Research Assistant Sanna Vilmusenaho, Aalto University

The Creator of a Literary or Artistic Work Is Author• “Literary and artistic works” include works in the

literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, articles and other writings; lectures and other works of the same nature; cinematographic works, works of drawing, photographic works; illustrations, maps, plans, sketches and three-dimensional works relative to geography or science.

• Berne Convention for the Protection of Literary and Artistic Works http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

•

Researchers Are Authors

• The author is the owner of copyright until there is an agreement by which the author assigns the copyright or a possible work-for-hire exception apllies. There can be several authors to a work, for example to a scientific article

• In Europe the work treshold is very low, for example 11 words in a newspaper article can be considered to be a literary work, see European Court of Justice Infopaq judgment, C-5/08 Infopaq International A/S v Danske Dagblades Forening, judgment of 16 July 2009

http://ec.europa.eu/dgs/legal_service/arrets/08c005_en.pdf

Transfer of Copyright

• Copyright can be assigned to a legal entity for example the legal entity Aalto University Foundation with a Business ID identifying the legal entity

• Intellectual property assignments need to be made to the proper legal entity , this is especially important if the intellectual property is registered

• Any transfers of copyright, whether granting a lisence or transferring ownership of copyright , requires that all authors agree on the license or transfer agreement

• All researcher/authors have to agree on the use of copyright in articles and other research results

Transfer of Copyright

• Whether granting a lisence or transferring ownership of copyright requires that all authors agree on the license or transfer agreement

• All researcher/authors have to agree on the use of copyright in articles and other research results

• The beginning of the research work is the time to agree on copyright, for example in Aalto University agreement on copyright for externally funded research is an annex to every work agreement.

• The agreement has to take in consideration national copyright legislation

Work –For- Hire for Computer ProgramsNo General Work-for Hire rule in the EU• Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer

programs http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31991L0250:EN:HTML

EU directive ensures work-for hire in computer software ”Where a computer program is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the program so created, unless otherwise provided by contract.

• However, in Finland this is implemented to not include ”independent academic research ” at universities

US Work -For -Hire

• A work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer is considered to be the author. See Circular 9, Work-Made-For-Hire Under the 1976 Copyright Act. http://www.copyright.gov/circs/circ09.pdf

• University copyright policies traditionally state that author is the owner of copyright to many materials, includin scientific articles

Funding Body Requirements

• Funding bodies such as the European Union Commission place requirements on how the copyright to research results are handled and agreed upon

• Horizon2020 requires that 100 % of research publications are published using open access publishing

• Applications for funding starting 2014 will have to take this into consideration, and all agreements with researchers about copyright have to accommondate this if EU funding is wished for

European Research Area and Copyright Policy • The open access measures complement the

Commission's Communication to achieve a European Research Area (ERA).

• As a first step, the Commission will make open access to scientific publications a general principle of Horizon 2020, the EU's Research & Innovation funding programme for 2014-2020

• EU Commission Communication 17.7.2012 COM(2012) 401

• http://europa.eu/rapid/press-release_IP-12-790_en.htm

Gold or Green Open Access – Both Accepted by European Commission• As of 2014, all articles produced with funding from

Horizon 2020 will have to be accessible• articles will either immediately be made accessible

online by the publisher ('Gold' open access) - up-front publication costs can be eligible for reimbursement by the European Commission; or

• researchers will make their articles available through an open access repository no later than six months (12 months for articles in the fields of social sciences and humanities) after publication ('Green' open access).

Other Funding Bodies

• The Commission has also recommended that Member States take a similar approach to the results of research funded under their own domestic programmes . The goal is for 60% of European publicly-funded research articles to be available under open access by 2016.

• NIH and many other US funding bodies require open access publishing , also UK • British Heart Foundation• Cancer Research UK all require authors to deposit of articles in the OA archive UK PubMed Central (UKPMC) within 6 months of publication.

Open access

• Open access “Mandate” as university copyright policy• Started by Harvard in 2008 , now in many US

universities • http://roarmap.eprints.org/

• Open access requirements allow more access but also require universities to have a more active role in copyright agreements with researchers

Agreements Needed to Comply with Open Access requirements• Agreement with the researchers employed by university• Agreement with the other writers of the article not

employess- often corresponding author confirms that he/she has the permission of these authors for open access publishing

• The Publisher Agreement – Agreement with the publisher of the original article

• All these agreements have to allow open access publishing by university if article is published in the open acces repository of university (Green open access)

• Gold open access done by publishers cover all writers and the rights of the publisher

Agreement with the Publisher

• Universities in Finland traditionally have copyright policies where researchers can freely make publication agreements, therefore following permissions are needed from publishers for open access repositories :

• I would be grateful if you could grant me permission to add the article(s) listed above to Digital Repository of the University .. any restrictions …, please let me know the details. Indicate the format in which I may add my article(s) to the repository: 1. In finalized PDF format, as it appears in your publication /2. Author’s final draft 3. In pre-print format

• http://www.helsinki.fi/openaccess/oa-arkistointi/toimintaohje.htm

Open access and publication agreementsIt will be more practical and often necessary to have a pre-contract agreement with the publisher to allow the author to deposit with institution’s or funder’s repository • Open Access Mandate as university copyright policy• Harvard adopted a Mandate in 2008 , now in many

universities see, Registry on Open Access Mandates• http://roarmap.eprints.org/• ◦ implementing open access requires universities to

have a more active role in copyright agreements with researchers and to adopt a clear open access policy

Green Open Access Copyright Policy

• Universities have adopted Open Access Policies that allow for Green Open Access in the university repository

• Example : The MIT Open Access Articles collection consists of scholarly articles written by MIT-affiliated authors that are made available through DSpace@MIT under the MIT Faculty Open Access Policy, or under related publisher agreements. Articles in this collection generally reflect changes made during peer-review.

• http://dspace.mit.edu/handle/1721.1/49433

Amendment to Publication Agreement as a Toll for Green open Access• MIT Amendment modifies the Publication Agreement • Publication agreement is subject to an irrevocable, non-

exclusive license previously granted by the Author to the Massachusetts Institute of Technology (“MIT”). Under that license, MIT may make the Article available, and may exercise any and all rights under copyright relating thereto, in any medium, provided that the Article is not sold for a profit, and may authorize others to do the same. http://dspace.mit.edu/handle/1721.1/49433

Institutional Repository Example

• Institutional repository that makes publicly available the working papers, published articles + materials produced at Stanford University Graduate School of Education. GSE Open Access Policy or for a copy of the Author Addendum (to accompany the Publication Agreement signed and sent back to the publisher).

• Creative Commons Attribution-Noncommercial License, Stanford University .This work is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License

Copyright and Research

• Copyright affects : • The ability of readers to find researchers work • The citation rate and impact factor • The possibility of a researcher to post on his /her own

website • Contribution to university digital repository • Use in lectures and teaching materials • Continuing research based on previous research results

and the building of university research agenda

Researchers and Copyright

• It is vital to make researchers aware of the implications and importance of copyright and intellectual property agreements to their work

• However, legal matters are not always the most interesting matters to researchers

• Aalto University is combines science, art, and business schools and our Research Support Services have employed art students in making animations and visualizations of copyright issues

Raising Copyright Awaresness – Visualizations by Sanna Vilmusenaho

• An image is instantly inside our brain, processing images starts in the retina of the eye

• Retina is brain tissue and considered to be a part of the brain

• Meaning of an image can be grasped at once, unlike the linear communication of words which is taken in sequentially

Storytelling style

• ”The medium is the message” as Marshall Mc Luhan pointed out in 1964.

• Our message for researchers is that it is easy to learn the basic concepts of intellectual property, agreements and licensing

• Our medium is animation in a website surrounded by articles providing further information.

Visualising a concept structure

• A complex concept structure that is difficult to be held in a persons short term working memory can be displayed in visual form

Visualization as a gognitive tool

• Suplied with visualization as a cognitive tool a person becomes a more effective thinker

Visualizing IP Basics: Emotions

• Emotions help learning, we remember more easily something that has an emotional aspect

• In our visualization the narrator is a personal character and animation uses some humor and the personal drawing style of animator Sanna Vilmusenaho.

• We did not strive for a ”neutral style ” devoid of emotion

IP Licensing – we visualized IP by comparing selling immaterial property to selling material items

IP Licensing- Licensor has created something of value and Lisencee is buying

Kuva:Licensor Licensee

Exclusive Right

Non-exclusive right – emphasizes continuous selling

Visualizing IP Valuation – real property featuring as intellectual property Residential Real Estate featuring as = IP or Intellectual Property

Predicted future income benefits generated by the asset – risks involved

Relief from Royalty:What would be paid in royaltiesIf did not own the property

Income the owner would generate by licensing

IP Valuation Income method

IP Valuation Cost Approach - replacement cost of an asset of equal utility. For example the alternative costs to design and manufacture in a non-infringing way

165 000 € 195 000 €

IP Valuation- Market Approach: What have others paid ? Information from market transactions of similar property

Visualization not as an add on but as a part of developing the material• Visual professional viewpoint: it is much better to think

about visualizing the material as the material is developed rather than to think about visuals later as add-ons to a verbally developed material. Design thinking can help to achieve a better communication.

• Storyboard of images was planned alongside with the text for the videos. In other materials visual elements have been added but often adding the visualization results in rethinking the text and clarifying the text.

VISUAL DATAdata is non-interpreted facts

When explaining forms of intellectual property, we have included the visual data, not just the legal text

US4109961  (A)Patent, inventor Peter Opsvik, applicant Stokke AS, filed 1.11.1972

An adjustable chair includes a pair of upwardly extending spaced uprights having a plurality of horizontal grooves provided along the

substantial length thereof at inner surfaces of the uprights and facing each other, a foot rest plate and a seat bottom plate member having opposite ends respectively disposed in opposite ones of the grooves at desired vertical locations along the uprights. The foot rest and the

seat bottom are interchangeable and are tightly held in place by fastening means extending between the uprights.

VISUAL INFORMATION information is data that has been given meaning Supreme Court of Norway 27.6.2012, Peter Opsvik ´s orinal Tripp Trapp chair, licensed to Stokke AS left , was protected by copyright as an original work, and infringed by theTrumf chair .Original chair left, infringing product right

Photo: internationallawoffice.com

The Scholar viewpoint : Law in the age of images• In order to be effective legal persuasion must be kept up

with changing storytelling styles and technologies. • Image-based logic, communication and meaning

making skills define our culture… lawyers can ill afford to misjudge the thinking and speaking habits of the audiences they face.

• Law has been understood in terms of written texts. Other sources of legal meaning fail to receive the attention they deserve. Richard K. Sherwin, Professor of Law, New York Law School, Director, Visual Persuasion Project

Impact

• Visual images have a greater impact than non-visual expression of the same information because pictures tend to be more vivid.

• The greater salience of visual information makes it more likely that the viewer will take in the information, remember it and use it in subsequent tasks

• Visual displays can convey more information than words alone and enable viewers to understand more

• Things that are difficult to imagine (such as IP ) are hard to understand if left to verbal descriptions alone

Conclusions

• Retooling the legal mind so that it may be better adapted to function effectively in a legal (and popular) culture transformed by new communication technologies constitutes the most pressing challenge before the legal academia today. The task is to make sense of the nature and practice of law in a non-essentialist, screendominated and pervasively visual environment.

• Richard K. Sherwin*, Neal Feigenson**, & Christina Spiesel***

WORKS CITED AND FURTHER READING

• Feigenson, Neal, Sherwin, Richard K. and Spiesel, Christina O. : Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory, and Teaching of Law (August 30, 2005). NYLS Legal Studies Research Paper No. 05/06-6; Barbados Group Working Paper No. 05-06. Available at SSRN: http://ssrn.com/abstract=804424 or http://dx.doi.org/10.2139/ssrn.804424

• Richard K. Sherwin : When Law Goes Pop, The Vanishing Line between Law and Popular Culture The University of Chicago Press 2000

• Visual Storytelling

Inspiring a New Visual Language

Visualizing information in the most elegant, entertaining, and informative ways.

Editors:  R. Klanten, S. Ehmann, F. Schulze. Gestalten 2011.