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
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
• A work may be protected by several IPRs.
Copyright in the UK
• UK primary legislation - Copyright, Designs and
Patents Act 1988 (CDPA 1998) as amended.
– (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
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
– Databases = 15 years, but may be renewed if
substantial change to database
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.
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.
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.
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
• Note: Fair dealing is probably the most
misunderstood and misused term in ©
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
• CC licences can vary considerably in scope.
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
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
– 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.
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
• 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
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
Case Study 2 – Digitisation
BioMed Image Archive at Bristol
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
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
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.
– Defamation law, esp. libel law;
– Privacy law, esp. data protection
– 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.