What is Copyright law?

Original literary, musical, dramatic and artistic works may be protected by copyright law. Certain non-original works such as the typographical arrangement of published editions, sound recordings, broadcasts, non-original photographs, the first fixation of films, etc. are also protected by so called rights related to copyright (or neighbouring rights). Copyright is automatic, there no need to register, deposit, apply a © symbol, etc., although all these activities are permitted and may be even helpful. However, they cannot be a condition for copyright protection (this rule applies almost everywhere in the world, as it is enshrined in the Berne Convention, the most relevant international copyright conventions). Copyright law does not protect ideas that are not expressed in an original form of expression, and does not protect data as such, principles, facts, etc.

Copyright law grants the owner the exclusive right to control certain rights such as reproduction, redistribution, communication to the public etc.

For example, when you write a research paper you are automatically the author of that paper. If you write it with others you all become co-authors (as long as everyone made an “authorial” contribution: proofreading, commenting, etc. are usually not considered authorial contributions).

Who owns copyright?

The author is usually the person creating the work, but if the work is created jointly, it may be jointly owned, and if a work is created by someone in the course of a contract of employment it may be owned by the employer (depending on the contract).

How long does copyright last?

The default rule in the EU is the life of the author plus 70 years. Related rights (e.g. sound recording, film fixations, non-original photographs, etc.) all have different periods, which are more or less harmonised in the EU.

What can copyright owners do?

Copyright owners have rights to restrict certain acts in relation to the protected work such as copying, distributing and communicating the work to the public. The effect is that in most instances use of copyright protected works requires permission from the owner.
Moral rights are additional rights in copyright works. They are not harmonised at the EU level therefore each EU Member State can have different rules on moral rights. However, the Berne Convention stipulates some minimum standards that must be met. These are:

• The right to be attributed as the author
• The right to protect the integrity of the work (i.e. to object to alteration or derogatory treatment of the work that are prejudicial to the honour or reputation).

Moral rights cannot be transferred, but in certain jurisdictions can be waived. They must last at least as long as the economic rights (in the EU 70 + author’s life), but can last longer and in certain jurisdictions they are perpetual.

How can copyright protected works be used?

In the EU, there is no concept of ‘fair use’ of works protected by copyright (or SGDR).

There are however exceptions and limitations that play a similar role, however they do not reach the same flexibility or width as fair use (which is a US concept). Art. 5 of the Copyright in the Information Society Directive of 2001 has a list of about 21 exceptions and limitation to copyright. However, whereas this is a closed list (MS cannot create new exceptions) it is not mandatory (except for the case of temporary acts of reproduction), meaning that each MS can choose which ones to implement. This aspect has attracted strong criticisms as it is not conducive to a level playing field in the EU scientific landscape. For a list of the exceptions and limitations implemented in your country you should refer to your NOAD, which may maintain an updated list.

In absence of an exception or limitation, uses covered by copyright are reserved to their authors. You may however still be able to reuse a work if it is licensed to you or it is generally licensed to the public with a public licence. Creative Commons Licences or FLOSS licences are examples of this type of public (and usually conditional) permissions.

Depending on the type of licence, free use of the research data may be permitted, allowing for use/re-use or re-mixing. Other research data may be subject to certain conditions such as attribution of the original research data owner, or attribution of the owners of other rights in the research data. More restrictive licences may prevent using the research data for commercial purposes or not altering the research data.
If the research data does not specify a licence, it is necessary to consider whether use of any protected content within the research data would infringe the rights of anyone.

Are there any automatic legal rights in the dataset?

Copyright and the sui generis database right (SGDR) arise automatically in qualifying works in the EU. If a dataset contains any protected works, the default position is that these rights are owned by the author or maker.

What if the researcher is an employee of a research institution or a student?

Depending on the employment contract and the institution’s intellectual property policies, the law may recognise an employee’s copyright as being owned by the employer.

What if there is a contractual relationship between the researcher and any other party (e.g. funder)?

A collaboration or funding agreement may specify that the ownership of the deliverable research lies with the funder, or that the funder has an automatic licence in the research.

What if any of the data has been obtained from a third party who imposed terms and conditions?

For example, datasets collated through social media platforms will be subject to that platform’s terms and conditions which may specify how the data can be used or made available.

Who took the financial risk for the research?

While copyright is usually owned by the author of the work, the SGDR in a database is owned by the person or organisation that bore the financial risk in creating the database. This should be verified on a case by case basis, but it is commonly the employer or the unit that has budgetary autonomy.