Institutional repositories intellectual property

Abstract:

This chapter provides an overview of intellectual property and copyright law as it pertains to institutional repositories. Issues related to collecting both published and unpublished works are addressed, along with author publication agreements, repository submission agreements, and licensing options for repository content. The chapter concludes with an examination of issues related to sharing data through a repository.

Key words

institutional repository

intellectual property

copyright

author agreements

data

open data

Intellectual property

Institutional repositories exist for the sole purpose of archiving and sharing intellectual property. As defined by the World Intellectual Property Organization (WIPO), intellectual property refers to "creations of the human mind":

"Intellectual property relates to items of information or knowledge, which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information or knowledge reflected in them."

(WIPO, n.d., pp. 3-4)

In 1967, the Convention Establishing the World Intellectual Property Organization outlined the categories of creations that are granted intellectual property rights - for example, "literary, artistic and scientific works", "industrial designs", and "scientific discoveries" (WIPO, n.d., p. 3). WIPO divides these types of creations into two broad classifications: industrial property and copyright. Industrial property refers to inventions, trademarks and other related ideas, while copyright refers to literary or artistic creations - and, importantly, the expression of ideas, not the ideas themselves (e.g., as opposed to inventions, the idea for which may be protected by a patent) (WIPO, n.d.). Both categories of intellectual property are granted protections by various national laws and by international treaties that govern the relationships between intellectual property created in, or by citizens of, different countries. In general, the owner of intellectual property - whether a patented or a copyrighted work - holds exclusive rights to the use of that work, and uses by anyone other than the rightsholder either require permission or must be specifically provided for in law.

The vast majority of works deposited in institutional repositories are literary or artistic (in the broadest sense of the terms) creations. So while it is possible that institutional repository managers may occasionally need to interact with materials for which patent or trademark law is an issue, every repository manager will encounter questions related to copyright law. A basic understanding of what copyright law is, what it intends to do, and what rights and responsibilities it places on creators and users of copyrighted works, is integral to the work of repository managers.

U.S. copyright law

In the U.S.A., the foundation for copyright law is found in Article I, Section 8, Clause 8 of the U.S. Constitution: "The Congress shall have Power [.] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" (U.S. Constitution, 1787). The core idea expressed is that those who create intellectual property should have the exclusive opportunity to profit from their creations - but that the exclusive nature of the opportunity should be limited. That limitation provides an opportunity for the public to use, and build on, the work of others.

U.S. copyright law is codified in Title 17 of the U.S. Code. The Copyright Act of 1976 provided the most significant recent revisions to U.S. law, though further amendments have been made since the passage of the Act. Under current law,

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;1

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

(U.S.C. Title 17, Sec. 102)

In brief, copyright protection is afforded to any original work if that work is recorded (physically or electronically) in a manner in which it may be perceived by a person. Works that contain no original content/authorship are not eligible for copyright protection. Furthermore, copyright does not protect an idea (like a patent does); it only protects the particular original expression of that idea.

Box 2.1   International copyright law

As may be expected, intellectual property and copyright law varies by country. However, in order to ensure that creators' copyrights are globally respected, the international community has created treaties to protect works that are copyrighted in another country. The two primary treaties that govern international copyright are the Berne Convention for the Protection of Literary and Artistic Work (1886) and the Universal Copyright Convention (1952). Countries who are signatories to these treaties must have domestic copyright laws that are consistent with the treaties and must offer foreign nationals' works the same protections that are afforded to that country's citizens (Heller, 2004).

A significant difference between copyright law in the U.S.A. and in other countries is the treatment of moral rights. "Moral rights" generally refer to the right of the author of a work to be identified as the author of that work, and to preserve the integrity of the work. For example, in some European countries, moral rights are granted to an author separately from the copyrights, which are designed to protect the economic interests of the author. However, in the U.S.A., moral rights are not explicitly granted to authors/creators of copyrightable works (except in the case of visual art); copyright law focuses primarily on property (economic) rights (Bird and Ponte, 2006).

Another notable distinction is seen in the ideas of "fair use" in the U.S.A. and "fair dealing" in the U.K., Canada, and other Commonwealth countries. Both are exceptions to the exclusive rights of copyright holders to make use of their works in specific ways, but the parameters of what is defined as "fair" utilization of copyrighted material differs. (The concept of "fair use" will be discussed in more detail throughout this book.)

It is not uncommon for faculty and researchers at higher education institutions to collaborate with peers from other countries. When these collaborations result in intellectual property that is subsequently submitted to an institutional repository, it may be advisable for repository managers to confirm the expectations of coauthors/cocreators from other countries with regard to their copyrights, and how their works may end up being used if they are made available through the repository. It should be noted, though, that significant conflicts related to international copyright law will likely occur infrequently - if at all - for most institutional repositories.

Copyright law: understanding the basics

While copyright law is complex both in its essence and in its application, a basic understanding of the characteristics of copyright should be sufficient for scholarly communication librarians or institutional repository managers to be able to identify when there may be a potential issue with a submission. At that point, most institutions have a copyright officer or legal counsel from whom additional advice may be sought.

Copyright protection does not require registration, notice, or publication. If a work qualifies for copyright protection (i.e., it is a work of original authorship), such protection is in place from the moment the work is "fixed in any tangible medium of expression" (U.S.C. Title 17, Sec. 102). In other words, as soon as a photograph is taken, a word-processing document created, or original ideas written in a notebook, the copyright in that work is owned by the author of the work under copyright law....