For those interested in Open Knowledge and Open Science, I would like to introduce the online free course that the Standford University will deliver from September to December 2014. The ...
Managing IPRs as a foundation for the support of open information and knowledge
Version 1.0 April 2014
IPR management is at the heart of open information management
To improve the openness of knowledge and information, so that they can be shared freely, requires an understanding of who owns the ‘intellectual property’ produced by individuals and organizations. Intellectual property includes all the materials that an organization, or researcher or educator within it, is likely to create or want to make available to others - including books, journal articles, personal papers, theses, scientific data, manuals, photographs and illustrations, and so on. Although there are variations in detail between countries, the basic principles of IPRs are common to all and they provide the framework for the use and reuse of information and knowledge.
Some important principles of IPRs and how to use them
Some IPRs have particular importance for the management of information and knowledge and for improving their openness and impact. An organization should develop an IPR management policy which covers the following main elements.
IMARK has a general introduction to IPRs in the Module ‘Strategic Approaches to Information’ Lesson 5.5 ‘IPR, Copyright, Licences, and Open Access’. There is more detailed coverage in the Module ‘Digital Libraries, Repositories and Documents’, Unit 3 ‘Intellectual Property Rights’
1. Copyright - who owns the materials?
Copyright is a type of IPR which shows who owns the materials . The creator/author of materials owns them unless he or she chooses to give away that ownership. Being clear about ownership is central to an IPR policy. Ownership defines the options for who is allowed to do what with the materials concerned – whether the materials are openly available to users and under what circumstances.
The author of a work is usually the copyright owner, unless the owner transfers the copyright to someone else in a signed agreement. The copyright owner can take decisions concerning the use of the work, such as distribution, access, pricing, updates, and any use restrictions. The owner may decide to transfer some rights to another party, such as a publisher, to enable them to benefit from or use the materials in some way. Or the owner may transfer copyright to another holder while holding back some rights for him or herself and others. The transfer of rights in both these options is called “licensing”.
2. Licensing and re-use – what are others allowed to do with your materials?
If you own some materials (you are the copyright holder), and someone else wants to use them, they have to ask your permission. Licensing is how you explicitly give someone else permission to use the materials. A licence can allow many types of use by others while making clear who is the owner of the materials – the copyright holder. The clear statement and management of the rights to information and knowledge gives the user confidence in how they might use the materials, and this therefore encourages use.
The most widely used licences to encourage openness are those developed by Creative Commons and they are freely available.
3. Mandates for the open availability of materials
A mandate is a policy which aims to ensure that the research and other outputs, as desired, of an organization are deposited in a digital repository and in this way made openly available. Many different approaches have been taken to the ways in which mandates work. Of particular relevance here are:
- for IPRs - the retention, or not, of copyright and how the licensing of rights to other parties is managed;
- whether the mandate requires or requests the deposit of materials. There is evidence that mandates that require deposit, rather than just request it, lead to much higher rates of deposit;
- the types of materials that the mandate applies to. Some mandates refer only to peer reviewed journal articles. They can also be made to apply to all types of research and learning outputs, such as book and conference materials, educational materials, theses, reports, training manuals, experimental data, images, photographs, and so on.
The mandates referred to here show combinations of all of these possibilities.
There are different ways in which mandates can deal with the ownership and licensing of materials, and with what materials are the subjects of the mandate. ROARMAP is a central registry of mandates from around the world, providing details of their rules and implementation. Some of the widely used approaches are:
a. The University of Liege, Belgium, mandates deposit of research outputs in its repository ORBi. Retention of rights by the author is optional.
b. The Indian Council of Agricultural Research (ICAR) has implemented an Open Access Policy across all its’ institutes. Copyright in all materials belongs to ICAR but they are licensed for use, re-use and sharing for academic and research purposes. Commercial and other reuse requires written permission.
c. Queensland University of Technology, Australia, (the employer) owns the copyright of works and materials created by employees (researchers, educators, etc.) as part of their employment. The institution then gives rights back to the individual to allow them to publish and communicate the work in a variety of ways. See http://www.mopp.qut.edu.au/D/D_03_01.jsp for a detailed explanation of the QUT intellectual property policy.
d. Harvard University, USA, allows the employee (the creator) to keep ownership of copyright in the work, but gives the employer (the university) sufficient rights to enable the desired use and exploitation of the materials. This is mostly focused on peer-reviewed journal articles.
e. The National Institutes of Health (NIH) in the USA requires all “investigators” funded by the NIH to submit to the National Library of Medicine's PubMed Central an electronic version of their final, peer-reviewed manuscript upon acceptance for publication. This must be made publicly available no later than 12 months after the official date of publication. Other US Government agencies, such as USDA, are implementing similar policies, though the USDA policy, for instance, aims to develop ‘openness’ across a wide range of materials and activities.
f. The University of Southampton, UK, does not specify copyright retention by the author, or otherwise. It does however provide practical advice on copyright issues related to depositing materials in its repository ePrints, and how to conform with publisher requirements where necessary.
4. Ownership and licensing of data
Data, and who owns it, is now a subject of great interest because of the rapidly growing Open Data movement. In this context “data” means predominantly non-textual material such as experimental data, chemical compounds, maps, genomes, mathematical and scientific formulae, medical data, sociological data, and so on. Data of this sort is considered to be ‘facts’ and therefore not copyrightable, except in some cases where the data is manipulated in some way in the creation of, or addition to, a database. However, there is a lack of legal consistency between countries. Some countries (mostly in the European Union) do have a ‘database right’ which allows ownership (copyright) of databases. Generally, though, there will not be IPR restrictions on providing free access to unmodified data except where there are confidentiality or commercial issues.
So although data is not usually copyrighted it is considered best practice for the producer of the data to make clear that it is available for use and reuse and to create a licence to govern this.
The Open Data Institute (ODI) provides guidance on data and associated IPR issues. Model data reuse licences have been produced and made freely available. The Open Data Commons (ODC) licences are tailored for this purpose. Creative Commons licences can also be used to define user rights for data. The Creative Commons Attribution Licence allows users to copy and distribute subject to the attribution of the work to its author.
5. Ownership through Patents
A patent is an exclusive right granted for an invention or a new way of doing something. To get a patent, technical information about the invention must be disclosed to the public in a patent application. The patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. Although patents are not directly relevant in the everyday context of information management there are current controversies over, for instance, the patenting of genes. More information can be found at WIPO, the World Intellectual Property Organization. Further, the Nagoyo Protocol, a supplementary agreement to the Convention on Biological Diversity, has been established to provide a legal framework for the implementation of the fair and equitable sharing of benefits arising out of the utilization of genetic resources. This includes rights in genetic resources as they relate to traditional knowledge.
6. Ownership and licensing with publishers
Most publishers will ask the author of a work to transfer copyright to them in exchange for its publication through the publisher’s established channels. However, it is not necessary to give away copyright in this way. Copyright can be retained by the author or institution (as shown in the examples of Mandates above) and a licence given to the publisher to enable it to publish the work effectively. Policies enabling authors to retain copyright have been developed by several organizations.
The time at which a research article can be deposited in an institutional repository and made openly available is also affected by publisher agreements – these are called ‘embargoes’. Many publishers impose an embargo period (often 12 or more months) after publication in the journal before the article can be made openly accessible in an institutional or thematic repository. The RoMEO service provides information on publishers’ copyright and embargo policies.