Kathy Davies from the University of Wolverhampton gives us some ideas and thoughts on intellectual property rights that will affect research students working collaboratively.
Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.
Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.
The original creators of works protected by copyright, and their heirs, have certain basic rights. They hold the exclusive right to use or authorize others to use the work on agreed terms. The creator of a work can prohibit or authorize:
- its reproduction in various forms, such as printed publication or sound recording;
- its public performance, as in a play or musical work;
- recordings of it, for example, in the form of compact discs, cassettes or videotapes;
- its broadcasting, by radio, cable or satellite;
- its translation into other languages, or its adaptation, such as a novel into a screenplay.
Many creative works protected by copyright require mass distribution, communication and financial investment for their dissemination (for example, publications, sound recordings and films); hence, creators often sell the rights to their works to individuals or companies best able to market the works in return for payment. These payments are often made dependent on the actual use of the work, and are then referred to as royalties.
Copyright in a literary, dramatic, musical or artistic work expires after a period of 50 years from end of the year in which the author dies. Similarly, copyright in a sound recording or film expires after a period of 50 years from the end of the year in which it is made, or released. This also holds true for broadcasts and cable programmes. However, the copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the year in which the edition was first published. Copyright extends for 70 years after the author's death for computer programs.
In the first instance, the creator of a work is normally the "first owner", but rights may be passed on or shared (through contract, licensing, sale or inheritance). The exception to this is where a work is created as part of a contract of employment, in which case it is owned by the employer. In any case, other parties may also be involved eg publishers, collaborators.
As for the commissioning of work - the law changed in this area in 1989. From work commissioned after 1st August 1989 the 'ownership' goes to the author/creator - not the commissioner. The only way that this can be altered is through agreement in an independent contract stating otherwise. Work commissioned before this date is 'usually' the property of the commissioning person or body.
Copyright does not have to be registered in the UK, but is an automatic right that comes into existence with the creation of the work in question. (http://asp.wlv.ac.uk/Level5.asp?UserType=6&Level5=783)
"A patent for an invention is granted by government to the inventor, giving the inventor the right for a limited period to stop others from making, using or selling the invention without the permission of the inventor. When a patent is granted, the invention becomes the property of the inventor, which - like any other form of property or business asset - can be bought, sold, rented or hired. Patents are territorial rights; UK Patent will only give the holder rights within the United Kingdom and rights to stop others from importing the patented products into the United Kingdom." (UK Patent Office)
The intention of patents is to offer protection to products or processes that possess or contain new functional or technical aspects. Therefore patents are concerned with, for example, how things work, what they do, how they do it, what they are made of or how they are made. The UK Patent Office recognises that the vast majority of patents are for incremental improvements in known technology.
The Patent Act, 1977 requires the following conditions to be satisfied for a patent to be granted for an invention
- Be new: the invention must never have been made public in any way, anywhere in the world, before the date on which an application for a patent is filed.
- Involve an inventive step: an invention involves an inventive step if, when compared with what is already known, it would not be obvious to someone with a good knowledge and experience of the subject.
- Be capable of industrial application: an invention must be capable of being made or used in some kind of industry. Hence, the invention must take the practical form of an apparatus or device, a product such as some new material or substance or an industrial process or method of operation.
- Not be "excluded": an invention can not be offered patent protection if it is: a discovery; a scientific theory or mathematical method; an aesthetic creation such as a literary, dramatic or artistic work; a scheme or method for performing a mental act, playing a game or doing business; the presentation of information, or a computer program.
The Patents Bill, has updated, modernised and improved patents law. The Bill proposals would provide a more supportive framework, particularly for small businesses, to enforce patent rights and ensure that UK patent law continues to underpin and promote innovation.
The Bill includes measures which would help those trying to resolve disputes over patent rights, and provisions to ensure compliance with international commitments that help UK businesses. http://www.patent.gov.uk
Copies of the new Bill can be found at http://www.publications.parliament.uk/pa/ld200304/ldbills/018/2004018.htm
Other useful links include:
Knowing your rights is protecting your rights.
Universities should have a department that deals specifically with Intellectual Property Rights.
Disclaimer: The ideas presented here do not necessarily reflect the views and interests of the National Postgraduate Committee