Transcript Andrew Charlesworth Director, Centre for IT & Law

Andrew Charlesworth
Director, Centre for IT & Law
IPR and Research Data
CRASSH, University of Cambridge
02 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
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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.
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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.
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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.
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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 ©
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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.
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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
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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.
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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.
Case Study 1 –Preservation
14
•
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
Case Study 2 – Digitisation
15
•
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
Case Study 3 – Web Archiving
16
•
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.