Andrew Charlesworth

Director, Centre for IT & Law

IPR and Research Data

CRASSH, University of Cambridge02 February 2011

2 Intellectual Property Law

• Intellectual property rights (IPRs) allow individuals to claim and exercise rights in their creative and innovative works

• Some IPRs are well known (if poorly understood)– copyright, patent, designs, and trademark

• Others are known primarily to specialists– trade secrets, geographical indications, semiconductor

chip topography rights, plant varieties and performers rights.

• A work may be protected by several IPRs.

3 Copyright in the UK

• UK primary legislation - Copyright, Designs and Patents Act 1988 (CDPA 1998) as amended.– http://www.ipo.gov.uk/cdpact1988.pdf (324 pages)

• Works covered include: literary, dramatic, musical, artistic works, sound recordings, broadcasts, films, published editions

• Copyright has been expanded (often controversially) to cover new types of works– Computer programs – UK Copyright (Computer Programs)

Regulations 1992

– Databases – UK Copyright and Rights in Databases Regulations 1997

4 Copyright in the UK 2

• UK copyright law – protects ‘expressions of ideas’ not ‘ideas’

– requires that the work be ‘original’ and created in a permanent form

– does not require formal registration

• Duration of © protection varies – Literary works (inc. software) = author’s life + 70 years;

– Sound recordings/broadcasts = 50 years from end of year created or 50 years from end of year first released.

– Databases = 15 years, but may be renewed if substantial change to database

5 Copyright in the UK 3

• Ownership– the original owner of © in a given work is usually the

person who created it.

BUT there are exceptions e.g.

– © in works created in the course of employment - the employer (issue of what is ‘in the course of’)

– © in a sound recording or film - the person who made the arrangements for its creation

– © in a computer-generated literary, dramatic, musical or artistic work - the person who made the arrangements for its creation.

6 Copyright in the UK 4

• Several copyrights may subsist simultaneously in a single item– A song - the words may be © as a literary work, the

music may be © as a musical work, sheet music may be © as a typographical arrangement.

– These ©s might be held by different people, and might have different commencement and expiry dates.

7 Copyright in the UK 5

• A rightsholder has the exclusive right to do certain things with their work - making a copy, public performance, broadcasting - ‘bundle of rights’.– These rights can be assigned, licensed, inherited etc. as a

bundle, or as individual rights.

• © infringement occurs when you copy a work (or a substantial part of a work) without authority of the © holder (unless legally permitted – fair dealing).

• Licensing of © is common – the rightsholder grants permission to others to do certain things with the work, but retains overall control of it – lawful use of work is conditional on obeying the licence terms.

8 Permitted Acts

• There are things that you can do with a © work without the rightholder’s permission, e.g.– Fair dealing – such as purposes of non-commercial

research, private study, criticism and review.

– Certain uses in education

– Certain uses by librarians or archivists

• These exceptions are very tightly constructed and construed.

• Note: Fair dealing is probably the most misunderstood and misused term in ©

9 The Creative Commons

• Creative Commons Licences are © licences.– work can only be CC licensed by rightsholder

– can’t be used to prevent © exceptions - fair dealing

– can’t be used to protect things not protected by © - ideas

• Creative Commons licenses are non-revocable.• Works under a Creative Commons licence must be

used by licencees in accordance with its terms.• Key CC terms:

– Attribution, NonCommercial, NoDerivatives and ShareAlike

• CC licences can vary considerably in scope.

10 Assignment and licensing out

• If you wish to let third parties use your copyright work you can : – Assign the rights in the work

– Use an ad hoc licence between yourself and the users of your copyright work.

– Use a licence for particular works on a case-by-case basis from a collective licensing agency

– Use a blanket licence enabling access to a range of works under a fixed set of terms

– Permit use under a Creative Commons licence

– Dedicate the copyright work to the public domain

11 Enforcement of Copyright

• The primary remedies under UK law are civil remedies e.g. injunctions and damages – Many infringements are inadvertent – infringer is unaware of

© in a work, or ignorant of © generally - they are still potentially liable

– The burden of proof in a civil case is lower than a criminal case - balance of probability

– If a case goes to court legal action tends to be both lengthy and costly (and poor PR)

• Note: 1st rule of litigation - don’t sue poor people.– Exception: unless the client wants to prove a point

• Note: Universities aren’t perceived as poor.

Research data issues

• Is the research data capable of protection by copyright?– E.g. some research data may simply fail to qualify.

• If it can be copyrighted, who owns it?– E.g. the researcher, the researcher’s employer, other third

parties, joint ownership with others?

• If third parties have rights in the data, what rights do you have to use them?

• If you’ve licensed rights in, have you licensed all the rights that you need to carry out the research, disseminate the results and where necessary archive the research data.

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Research project issues

• Legal risk assessment• Ownership of rights and IPR strategy – e.g.

relationship with publishers, sponsors etc.• Multi-party projects – prior agreements on IPR e.g.

consortium agreement – ownership, sharing, reuse• If using 3rd party IPRs, document terms of use for each

work – assignment, licence or other – rights register• If archiving data ensure that IPR information is

included for archivists to guide permissible reuse• Where possible, attach IPR information to digital

works as metadata.

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14 Case Study 1 –Preservation

• Interactive BBC videodiscs to celebrate 900th anniversary of original Domesday Book – info. about how Britain in 1986

– Preservation issues

– Emulation of software to preserve the project

– Copying of works held in original videodiscs

• Legal issues

– Copyright in software and other works

– Ability to legally copy for preservation

15 Case Study 2 – Digitisation

• BioMed Image Archive at Bristol University

• Digitisation project - biomedical images

• Legal issues:

– Licensing IPRs required for archiving and dissemination of images & allowing educational use

– Obtaining warranties and indemnifications to shield the University of Bristol, from unnecessary liabilities

– Securing sufficient and accurate info. from the depositor to create adequate metadata to describe the image, and ensure its proper use.

– Addressing data protection and confidentiality issues in subject matter of the images and in descriptive metadata

16 Case Study 3 – Web Archiving

• JISC & Wellcome Trust Web Archiving Study

• Broad overview of legal issues of concern to web archivists

– National laws on legal deposit of digital materials;

– Intellectual Property laws, esp. copyright;

– Defamation law, esp. libel law;

– Privacy law, esp. data protection law;

– Content liability laws, esp. obscenity/indecency laws.

Case Study 4 - User Generated Content

• Digital Lives project - personal

digital collections

– how modern PDCs are created,

managed, and made accessible

– how to select, describe,

preserve and provide access to

PDCs

– impacts of legislation,

confidentiality and professional

ethics on PDCs and the

implications for their

dissemination, or acquisition by

repositories.