IPR and licensing
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Contents |
OVERVIEW
This article presents a brief overview of the main elements of intellectual property rights and licensing and outlines their importance across the public sector. The article is an extract from the IPR Toolkit Overview.
IPR and licensing - their importance across the public sector
Substantial amounts of public sector investment have taken place in digital assets, infrastructure and services to support enhanced engagement with e-content for formal and informal learning, research and skills development. There is clearly a risk that unless IPR and licensing is dealt with appropriately, content will continue to be provided within individually-branded content silos, tied up in differing licensing regimes. Users will not fully benefit from the public investment that has been made in these initiatives nor participate in a Digital Britain. Overcoming these barriers, and ensuring that public sector bodies are kitted up to deal with content use, creation and management for the future, requires a common understanding and concerted action on the part of all agencies and organisations in the field. It needs a recognition and commitment that IPR and licensing needs need to be met by implementation of a series of processes, policies and information management-related practices, such as those identified within this Toolkit.
Overview of IPR
IPR underpins any level of engagement with creative content and the Creative Industries. It provides legal protection for the fruits of human imagination, skill, invention and endeavour. Subsequently, IPR issues are prevalent within the use, creation, repurposing, alteration, transaction and dissemination of content. They will underpin to some degree public sector engagement with content and a variety of related activities.
There are a number of IPRs which are likely to be relevant to public sector bodies. These are likely to include:
- Copyright
- Trade marks
- Design Rights
- Patents
- Moral Rights
- Confidentiality/Trade Secrets
- Performers’ Rights
- Database Rights
More information about each of these can be found in resource 1.2 IPR and Web 2.0, as well as possible exceptions to copyright which might be used as defences to certain types of copying.
IPRs are robustly protected by the law, which means that unauthorised use may result in civil, and sometimes even criminal remedies. Whilst some IPR are proprietary (i.e. can be asserted against all 3rd parties and transferred to others), such as the ownership of trademarks, patents and copyright, others are personal or relational (i.e. they bind only persons in a specific and normally direct relationship).
For example:
- A performer’s right to authorise the recording of a live performance and to control the distribution of illicit recordings is personal and non-transferable except on death. An example might include the ability of a freelance lecturer to control how their lecture is disseminated, which will require their permission. This toolkit provides a model consent form which can be adapted and used to help ensure that such permission is appropriately sought.
- Computer programs may be protected by copyright (as literary works) and may also in some circumstances be patentable, particularly in the US.
- Films or audio recordings of learning events - various rights may be owned by different persons: thus, if a film or audio recording is made of a learning event such as students performing a scene from a play, the right to the film or recording would belong to the person who made the arrangements for it (the producer), the play has separate protection as a dramatic work, and the performers must authorise the recording or filming of the performance.
- A database may have full copyright protection and/or may be protected under the specific database right. Individual pieces of data or content included within the database might each be protected by copyright and the software in which the database is built might be protected by patents. There may also be trademarks in the name of the database or its software.
Most IPR require no formalities, notably copyright is automatic, but some require registration, in particular patents. Designs need not be registered, but registered designs obtain specific and stronger protection.
Moral Rights
Moral rights are personal to authors. They include, for example, the right of authors of scholarly publications to ensure that they are suitably credited. The various kinds of rights are generally cumulative so that the same activity or product may be protected by more than one right and potentially all the rights will require clearance.
Moral rights were introduced in the UK in the Copyright Designs and Patents Act 1988, and therefore only apply to content created after 1st August 1989 (the date that the Act was implemented), as well as only applying to works protected by copyright. They are quite separate from the economic rights associated with copyright protected works. The Moral right protections given under UK law are much less extensive than in other countries. In the UK they are as follows:
- The right of attribution, i.e. to be identified as the author or director of a work, which depends on the author having formally asserted it. It does not apply to a computer program, works that appear in a periodical (it is not clear if that includes scholarly articles in journals), computer-generated work, the design of a typeface, or a work made for the purpose of reporting current events. In the case of works created by employees in the course of their employment, it does not apply to any acts done with the authority of the copyright owner, i.e. the employer or anyone to whom copyright has been transferred. It only applies to works in Crown or Parliamentary copyright if the author has previously been identified as such on published copies.
- The right to object to a false attribution, i.e. not to have a work falsely attributed to you as author or director. It also applies to a false attribution of an adaptation or copy of a work. This right lasts for only 20 years after the death of the person falsely attributed as author. It is infringed by various kinds of acts of issuing copies, exhibiting, performing or showing a work to the public, or dealing with it in the course of business, either knowing or having reason to believe the attribution is false.
- The right of integrity, i.e. to object to derogatory treatment. In the UK this is limited to a distortion or mutilation of a work, which the courts have considered to require prejudice to the honour or reputation of the author. UK courts are not as willing as those in other countries to accept the artist’s view of what is a distortion, but apply an objective test based on how the public would perceive it. In the case of a work created by an employee in the course of employment, when copyright vests in the employer, it does not apply to acts done with the authority of the copyright owner, except that if the employee has been identified as the author, there must also be a clear and prominent indication that the author has not consented to the treatment. It does not apply to a computer program or computer-generated work, or a work made for the purpose of reporting current events. There are also some other specific exceptions.
- There is also a right to privacy of photographs or films commissioned for private and domestic purposes, to prevent copies being issued to the public or the work being shown in public or communicated to the public, which is regarded as a moral right.
Public sector organisations need to be aware of the importance of respecting the moral rights of third parties, above all to ensure that they suitably credit the author of a piece of content. It may also be necessary to obtain permission or a waiver from the author in editing or manipulating content created by a third party, if it might be regarded as a derogatory treatment.
Licences
Licences are the tools to facilitate permissions to use and sometimes even access to content which is created by third parties. These permissions are normally granted by the rights holder or a third party represented to act on behalf of the third party. These licences can take a number of different forms, sometimes even for the same content. The most common types of licences which public sector bodies are likely to encounter include:
Transactional licence
These are agreements to use content in which are rights are owned by third parties, on a case by case basis.
For example; a doctor wishes to use a graph in a research paper which has been created by a colleague from another institution. Unless permission had been provided already, for example, via an Open content licence (see below), then permission would probably be sought using an agreement for a one of use. Template licences are supplied within this toolkit which can provide assistance with this issue.
Open content licences
These are licences which provide the rights holder with the tools to pre-grant users’ permissions to use their content, usually under terms which place the least restrictions upon the user. There are a number of different types of open content licences, but the most commonly used and known are the Creative Commons Licences.
For example; a teacher wants to use images found in an image sharing site for developing into online learning games. These have been licensed under a Creative Commons Attribution Non Commercial Licence. It is important that the teacher understands what can and cannot be done with the image under the specific terms of this licence.
Blanket licences
These licences refer to permissions which rights holders can grant users in advance for a number of uses of a particular piece of material, as well as permission granted by a collecting society acting on behalf of a number of rights holders granting permissions for a range of uses by a number of uses.
For example: a gallery seeks permission from an artist to reproduce an image for online access. At the same time, they also seek permission for other uses within the gallery for which the work might be used.
For example: a University Library pays annually for a photocopying and scanning licence which permits staff and students to create copies of a broad range of published text based works under certain conditions. Subscription-based agreements: these might take the form of subscriptions to specific types of resources.
For example, a Health Service Procurement Unit pays an annual subscription fee for access to a range of electronic resources which can used across the Health Service.
With the potential of using and creating vast amounts of content, both singularly and also mash ups, public sector bodies need to be mindful of the range and number of licences which they might encounter. In particular, they need to anticipate and plan for the likelihood of:
- Multiple rights
- Multiple licences
- So called “licence pollution”, where licences associated with one type of content, are not compatible with licences issued in association with other types of content.
These resources and case studies supported within this Toolkit can help to identify such issues, as well as provide appropriate entry and starting points for managing the associated information.
Draft policy statement and blueprint
The IPR Toolkit includes draft policy statements and a blueprint for funding bodies and recipients of funding relating to IPR and licensing. These can be used to provide a basic framework for IP and licensing policy and practice, and in particular be of relevance for:
- Organisations wishing to protect their own IP, particularly with regard to staff produced works.
- Recipients of funding needing to recognize the types of IP and licensing requirements that they and funding bodies may have, which might then be used as a basis for potential negotiation of funding agreements.
- Funding bodies to wishing to understand the types of IP and licensing issues that they might consider when establishing terms and conditions of funding.
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Links to IPR Toolkit Resources as PDFs
Background papers
Reports
Practical tools
3.4 Top Tips for Issuing Licences
3.5 Top Tips for Requesting Licences
3.8 Template Email Permissions Form
3.9 IPR Template Permission Letter
3.10 Rights Management Template
3.12 Model Contractual Clauses for Requesting Permission from Staff
3.13 Example Consortium Agreement
3.14 Model Contractual Clauses for Requesting Permission from Students/Volunteers
3.15 Model contractual clauses for requesting permission from freelancers/subcontractors
3.16 Template Terms and Conditions of Service
Template policy statements
2.1 Draft Institutional IPR Policy Statements
2.2 IPR and Licensing Blue Print for Funding Bodies and Recipients of Funding
Related Digipedia links
IPR and licensing
IPR policy statement for the public sector
Orphan works and risk management
Web 2.0 and legal issues factsheet
Further information
General resources
Intellectual Property Office: Overview of the legislative framework and policy issues/developments regarding Intellectual Property Rights
Office for Public Sector Information: Information about Crown Copyright material, click use licence for reusing Crown Copyright material and access to the consolidated copyright legislation.
British Library Business and IP Centre: Provision of resources, support and advice relating to the creation and exploitation of IP within a business context
Licensing schemes and open content licensing initiatives
Copyright Licensing Agency (CLA)
Design and Artists Copyright Society (DACS)
Resources for health professionals
Resources for schools, colleges and universities
JISC Digital Media Online Image Finding Tutorial: Interactive tool providing information about how to find images online which can be used with the least amount of restrictions
Web2Rights Project: JISC funded project providing interactive copyright and other legal issues tools, resources and charts for use by JISC funded projects
JISC Casper: Interactive tools and associated resources for dealing with copyright issues in schools and projects who are reusing content
JISC IPR and Web2.0 Animation: IPR and Web2.0 animation commissioned by JISC and built around the Web2Rights project deliverables
Becta: Information about IPR for schools
JISC IPR Consultancy: Briefing documents about IPR and monthly IPR Newsletter
JISC Open Content Licences Overview Paper: Overview paper providing guidance about the use of open content licences for JISC funded projects
JISC Model Licence Interactive: Interactive tool which provides an overview of the benefits of the JISC Model Licence
TrustDR Project: JISC funded project providing supporting documentation relating to the establishment of a digital rights management system for repositories
JISC Legal: Support for HEIs and FEIs on legal issues
OSS Watch: Support for HEIs and FEIs on open source licences
Resources for the cultural heritage sector
Collections Link: Comprehensive resources relating to IP and licensing for cultural heritage bodies
Harvested links
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[[Role::newcomer]] [[Role::strategy manager]] [[Role::policy maker]] [[Role::project manager]] [[Role::content manager]] [[Role::acquisitions manager]] [[Goal::managing]] [[Goal::copyright]] [[Goal::IPR]] [[Goal::legal]] [[Level::basic]] [[Level::medium]] [[Level::deep]]
