Doctoral Training Workshops
A Research Student’s Guide to Intellectual
Property Rights
10 February 2015
Dr Malcolm Stokes
Key Questions:
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What are Intellectual property rights?
What constitutes intellectual property (IP)?
What can I do/not do with IP (Restricted/Permitted Acts)?
How is IP protected
Intellectual Property Rights
• Legal rights given to a person(s) concerning their
creations
• Usually gives the creator an exclusive right over usage
for a given period
• Understand your rights and the rights of others
Intellectual Property Rights
Need to respect the IPR of sources you use
I.
So, for example, not only do you need to fully reference your
sources, but make sure you have permission to use them
(e.g. citing the source of a photograph does not give you the
right to include it in your own publication)
II. Think of Intellectual Property as any other form of property –
if it something that belongs to someone else, you need their
permission to use it (just like using their bike, house or
garden)
III. For PhD/MPhil theses & Master’s dissertations you are
unlikely to need permission to use copyright material
(exemptions: examination purposes)
Types of Intellectual Property
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Patents (inventions)
Trade marks (brand)
Designs (product appearance)
Copyright (literary, artistic, recordings, broadcasts,
software, multimedia)
Clear source of information Intellectual Property
Office Website http://www.ipo.gov.uk/home.htm
Copyright in the UK
Embodied in the Copyright, Designs and Patents Act 1988
• Amended several times / consolidated into single text
• Complies with World Intellectual Property Organisation (WIPO)
• The UK Intellectual property office (IPO) provides useful
overviews of IP. http://www.ipo.gov.uk/copy/c-law
• You do nort have to stamp a work with the © copyright symbol,
year of publication and name of the copyright holder. However,
this is an established practice in the UK.
Protection under the 1988 Copyright Act
• Economic rights are designed to protect a copyright holder from
being disadvantaged financially.
• Moral rights are also protected under the Copyright Act.
• These include the right to be:
– identified as the author (or director) of a work
– the right to object to derogatory use of a work
– the right not to allow false attribution
Copyright covers defined ‘work’ (not just an idea)
Works protected by Copyright
• Original Literary Works
• Articles, Books, Conference Papers, Theses, Poetry, Musical works, Computer
Programs, pamphlets (for translations/adaptions/collections of works the test is
sufficient originality)
• Original Musical Works
• Musical Compositions, Symphonies, Film Scores.
• Original Dramatic Works
• Plays, Scripts, Screen Plays, Mime, Choreography
• Original Artistic Works
• Painting, Drawing, Sculpture, Jewellery, Graphics, Architectural Designs, Buildings,
Maps, Charts, Carvings, Photographs, engravings.
• Performances
• Stage, Films, Sound Recordings, Broadcasts (TV, Radio, Satellite, Cable, Internet),
speeches.
Duration of Copyright
• Original Literary, Dramatic, Musical &
Artistic Works - Life Of The Author/Owner Plus
• Broadcasts (including via internet)
• Sound Recordings
• Film
- Life of up to 4 Authors1 Plus
• Published Editions
• Performances
• Designs
70 YEARS
50 YEARS
50 YEARS
70 YEARS
25 YEARS
50 YEARS
15 YEARS
1Director, Author of the Screenplay, Author of the Dialogue and Composer of any Original
Soundtrack
Ownership of Copyright
• This is an automatic right upon the creation of a work
• The ‘default position’ is that copyright initially belongs to
whoever brought it into existence
• Under UK law no formality is needed to ‘register’ original
work (e.g. publishing or performance establishes
copyright)
• BUT copyright ownership can be part of terms and
conditions of employment or another contract that you
sign
Ownership of Copyright
• Assigning of IP rights to the OU
• University’s obligations to protect and exploit IP
• Transfer of IP to other organisations
• Copyright in scholarly work (journal articles, personal notes (excluding
research/laboratory notebooks), theses, dissertations, books & monographs is
owned by the student.
• Patentable work is owned by the University. Creations / processes that provide
a commercial opportunity will be protected and when licensed, the creator will
share in the income.
Restricted and Permitted Acts
• Restricted Acts are what you cannot do with copyright
materials belonging to someone else without their
permission
• Permitted Acts are the exceptions which is what you
can do with copyright materials belonging to someone
else
Restricted Acts
• Copying
• Issuing Copies to the Public
• Performing, Showing or
Playing to the Public
• Broadcasting
• Adapting
• Storing in any Electronic
Medium
• Rental and Lending
• Importing Infringing Copies
• Dealing In Infringing Copies
• Providing Means For Making
Infringing Copies
• Provision of Premises or
Apparatus for Infringing
Performances
• Authorising Infringement
Permitted Acts
• Insubstantial Use
• Non-commercial Research or
Private Study
• Fair Dealing for the Purposes
of Criticism or Review
• Fair Dealing for the Purposes
of Reporting Current Events
• Bona Fide Examinations
• Recording at Home For 'TimeShifting' Purposes

• Recording of Broadcasts by
Educational Establishments (for
access from premises owned by
the institution)
• Photocopying under Copyright
Licensing Agency Licence
(which OU has)
• Instruction in the making of films
or soundtracks
• Transformation - with Caution
Maps
• Ordinance Survey is very restrictive (though easing);
even if you pay to use their map they claim copyright on
your derived version!
• Use Open Street Map (a Creative Commons open
source wiki world mapping resource:
http://www.openstreetmap.org/
• This is editable and brilliant for research
purposes
Copyright Exceptions
Insubstantial use:
•There is no legal definition of insubstantial and this term is not
mentioned in the Copyright and Designs Act. However, case law
would suggest that insubstantial use is permitted.
I. less than 400 words of continuous prose from a book;
II. less than 800 words of discontinuous prose from the same
source (broken text must be no more than 300 words);
III. Care must be taken as this is qualitative as well as
quantitative (one critical line could be considered to be
substantial)
Fair Dealing
Specific instances where formal permission is not required
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Research (non-commercial)
Private study
Criticism or review
Reporting of current events
• You can make single copies or take short extracts of works
• Quotes for the purpose of review or criticism (e.g. in a Literature
Review or to justify a research method).
• This group covers most academic uses you are likely to face
• Sufficient acknowledgment is a legal requirement
Bona Fide Examinations
• Works submitted for examination purposes only
• Technically this applies to all of a thesis or dissertation
• But will restrict what you can do with the thesis or
dissertation (cannot circulate it for non-examination
purposes, put on website or make copies for any
purpose other than examination)
• In practice it is best not to rely on this exception
Databases
• By selection / arrangement / verifying of data the contents
constitutes the author’s intellectual creation
• Duration of protection 15 years
Infringement:
• Permanent /temporary transfer of substantial part of the contents
to another medium or making it available to the public by any
means
Fair dealing:
• Very limited / applies only to licensed users (extractions for
teaching or research and not commercial use) acknowledgement
is necessary
Governed by Copyright and Rights in Databases Regulations 1997
http://www.legislation.gov.uk/uksi/1997/3032/made
Factual Information and Reworking
• There is no copyright in factual information or ideas only the
way they are presented
• Information may be taken from charts, tables and illustrations and
presented in a different way. For example information from a pie
chart represented as a bar graph would not require copyright
clearance (although the source of information must always be
quoted)
• Can be possible (but be careful) for maps
Web Materials
• Same copyright rules apply unless otherwise stated
• But be careful that the original website is not in contravention of
copyright – if it says ‘open access’ or that downloads are
‘copyright free’ and they are actually another person’s copyright
material you are still breaking the law!
• A useful guide on copyright in the digital environment is at:
http://www.caret.cam.ac.uk/copyright/index.html
• If you are creating your own web page start from scratch. Taking
and adapting someone else’s web pages is a clear breach of
copyright law.
Open Government Licence (OGL)
• The OGL is a free licence to enable use of government information
and public sector information without the need for formal
agreements or any registration transaction
• Allows you to copy, publish, distribute and transmit the information;
adapt the information; exploit the information commercially
• Does not apply to third party materials reproduced in government
and public sector documents.
• Source must be acknowledged and not used in a misleading way –
see terms and conditions for re-use at:
http://www.nationalarchives.gov.uk/doc/open-government-licence/
Interviews
• Copyright in the spoken work • Copyright in recording
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(resides with the speaker)
(resides with recorder / transcriber)
Permission for use:
• Same way as for literary or artistic works
• Useful guidance from the oral history society
http://www.ohs.org.uk/ethics/index.php
Case Studies
1. Rogers versus Koons
2. Associated Press versus Fairley
3. Cariou versus Prince
Rogers versus Koons
Photograph: Art Rogers – Puppies 1985 /Jeff Koons String of Puppies – 1988
(both via The Design Observer Group) http://designobserver.com/feature/artrogers-vs-jeff-koons/6467
1. Question: has Jeff Koons infringed Art Rogers’ copyright?
2. If the answer is yes, why has copyright been infringed
The Associated Press vs Fairley
Photograph: Mannie Garcia – 2006 (via The New York Times);
Poster: Shephard Fairley – 2008 (via Wikipedia)
1. Question: has Shephard Fairley infringed Associated Press’ copyright?
2. If the answer is yes, why has copyright been infringed
Cariou v Prince
Photograph: Patrick Cariou – 2000; Adaptation: Richard Prince – 2008 (both via
artnet)
1. Question: has Richard Prince infringed Patrick Cariou’s copyright?
2. If the answer is yes, why has copyright been infringed
Open Source
• Some materials are provided on an ‘Open Source’ basis
• The copyright owner permits you to use their materials
under a set of specific rules
• Check conditions – e.g. you need to sign up to a licence
to share what you do with the material with others via a
website
• This is often used by collaborative web communities
• (for example the use of open source to develop
energy-efficient technologies)
http://www.40fires.org/
Creative Commons
• Creative Commons is an organisation that provides a legal
structure for Open Source working
• Their licenses allow creators to specify which rights they reserve,
and which rights they waive. For details see:
http://creativecommons.org/
– Wikipedia is one of the notable web-based projects using a Creative
Commons license
– Openstreetmap is another
• Usually for non-commercial uses
• Licence requires you to acknowledge source and to share what
you do
• See Wikipedia entry on Creative Commons
Creative Commons
• Creative commons licences are not an alternative to copyright
• They allow you to specify the conditions of re-use of your material
• You still retain the copyright and moral rights in your material
Example of marking:
• The photo X is © 2009 Jane Lawson, used under a creative
commons attribution non-commercial licence: https://creative
commons.org/licenses/by-nc/4.0/
Getting permission to use
• Contact copyright owner for permission
• Get documented proof that permission has been granted
(and any conditions applying)
• Restricted uses may obtain permission more easily or
cheaply (e.g. for research publication purposes only)
• OU Rights Department can advise and help with
obtaining permission
http://intranet.open.ac.uk/lts/key-information/business-planning/rights.shtml
Protecting your Copyright Cake
• Copyright can be sliced up in a lot of ways – and then
each bit sold off separately
The World
U.K.
The Territory/Media Slice
Like physical property, use of rights can be
sold indifferent ways
Print
TV
Film
Theatre
Merchandising
Electronic & Digital
Media
Rest of the World
• For example, if you own a house you a can sell the house,
rent the house, or rent out rooms
• You can use it to raise capital
• You can transfer all or part of your rights to a third party
Territorial Layers of Exploitation for a Book
UK
Hardback
Paperback
Broadcast
Narrowcast
Video: On Demand /In Home
Viewing/ Rental/ Non-Theatric
Computer -Based Systems
License to publish
• Many journals ask you to assign all
copyright to them
• You may be able to arrange with a
publisher a particular set of rights
under a License to Publish
• Some journals, while still asking for
full copyright, now include a list of
additional permitted uses
• Think ahead about what you will use
the work for in future
Depositing publications on Open
Research Online (ORO)
• Unless permission is granted, you cannot upload the publisherproduced PDF of most articles. The majority of journal publishers
retain copyright of the publisher-produced PDF through the
copyright transfer agreement.
• However most publishers (around 91%) have now updated their
copyright policies to allow the final draft version of paper to be held
on open access repositories.
• The SHERPA/ROMEO site (http://www.sherpa.ac.uk/romeo/ )
provides an updated and easily accessible list of publishers’
copyright policies.
• Check with ORO Team for help (Email: lib-oro-team)
The Authors’ Licensing and Collecting
Society (ALCS)
• Once you start publishing it is worthwhile registering with
ALCS
• ALCS represents the interests of UK writers and aims to
ensure writers are fairly compensated for any works that
are copied, broadcast or recorded.
• In 2007-08 ALCS paid out a total of £18.6 million to over
46,000 writers.
• For details see: http://www.alcs.co.uk/
Patents
• Patents are about protecting commercial rights
• A Patent gives an inventor a right for a limited period
(up to 20 years in the UK) to stop others from using
the invention without permission
• Patents are about functional and technical aspects
Patents registration
• Unlike Copyright there is a formal registration process
• But there needs to be non-disclosure before registration
– if an invention is released onto the market or explained
in a publication before an application is filed it will not be
permitted
• Even a conference presentation could make a patent
application invalid
• See UK Government Intellectual Property Office
website for details at http://www.ipo.gov.uk/
OU Postgraduate Research Student Policy
on Intellectual Property (IP)
• OU Research IP policy can be found at:
http://intranet6.open.ac.uk/research-scholarship-quality/main/intellectual-property-andlegal-agreements
• The assignment of IPR to the University is to allow the OU to
protect you;
• It is part of treating our PG students the same as staff;
• Postgraduate research students hold the copyright to the text in
their thesis and to research articles;
• If you think your research will produce something that could be
patented, discuss this with your supervisors / Enterprise support
office
Further Support
• OU Rights Department Website is:
http://intranet.open.ac.uk/lts/key-information/business-planning/rights.shtml
• Enterprise support office:
Enterprise@open.ac.uk