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Dissemination and exploitation
of results of our programmes

Intellectual property rights

 

Legal issues

Guidelines for project promoters of the Education and Culture projects and actions in the context of dissemination and exploitation of results

When a project promoter decides to disseminate and/or exploit his projects' results, he will have to pay attention to issues related to intellectual property rights.

The aim of these guidelines is to make project promoters aware of important legal issues, like Intellectual Property Rights (IPR) or Personal Data Protection. They intend to prompt project partners to clarify and settle these issues at the very outset of the project.

This advice does not comprise a detailed interpretation of national or international legislation, and in no way can it replace the advice of a specialist, like a qualified copyright lawyer or a legal authority. Therefore, you are strongly recommended to seek professional legal advice for the effective settlement of these issues and the best possible use of your project's results!

 

Introduction to intellectual property

What is Intellectual property?

Intellectual property is a legal concept referring to the protection of works created by the human intellect. It consists of an exclusive right conferred upon the creator or/and the owner of an intellectual work. The owner can be the creator of the work (most usual case) or a transferee, in the event of a transfer of copyright.

This protection extends, with certain conditions, to:

  1. scientific or technical inventions (patents) and technical know-how
  2. trademarks for the identification of companies and products (trademarks)
  3. other artistic and intellectual works developed, such as books, paintings, music, pictures, teaching material, IT software, etc (these types of works comprise the intellectual property / copyright in the strict sense).

What is the difference between industrial property and copyright?

Intellectual property is divided into two categories: industrial property, which includes inventions, trademarks, industrial design, and geographical indications of source; and copyright, which includes literary and artistic works such as novels, films, musical works, paintings, photographs, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, producers of first fixations of films and those of broadcasters in their radio and television programs.
- The project promoters of the Education and Culture projects should normally be more interested in copyright, taking into consideration the nature of Education and Culture projects. Nevertheless, in the case of production, for example, of innovative scientific applications one should not exclude the possible application of special patent or trademark law.

What is the legal framework which regulates intellectual property rights?

The protection of intellectual property is governed by many conventions, initiated by two major organisations: the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO). These commitments, made by most Member States of the European Union (EU), have resulted in a certain standardisation of national provisions relating to intellectual property. However, this is not enough to complete the creation of the European single market. The EU has therefore intervened in this field in order to harmonise national legislation.

In addition to the harmonisation of intellectual property substantive law, the EU continues its efforts in creating unitary rights at Community level (Community trademarks, Community designs or models, future Community patents) with a view to simplifying and centralising the protection system. The crucial advantage of these unitary protection rights is the ability to benefit, by means of a single registration procedure, from uniform protection that produces the same effects throughout the Community. For this reason, the Office for Harmonisation in the Internal Market (OHIM), based in Alicante, Spain, was set up to perform the tasks of registering Community trade marks and Community designs. With regard to future Community patents, the European Patent Office in Munich will be responsible for issuing such patents.

How does Copyright come into being?

Two conditions are required for the work:

  1. Tangible form
    The work can be protected once it has come into existence in a tangible form. This tangible form exists when the work is given physical expression. For instance, copyright protection can not be conferred upon an abstract idea, or ad lib comments made during a talk, but it can upon a speech based on brief notes.
    - The work in question has to be "tangible".
  1. Originality
    The work must also be original, to allow it benefit from copyright protection. Originality is a tricky concept insofar as it is difficult to define, and can be interpreted in various ways. For example, the French law accepts that a piece of work is original provided it "carries the stamp of its' author's personality", while in UK a criterion might be the likeness of the product to interest a prospective buyer.
    - The work has to be "original".

Does copyright need to be registered?

No, copyright with the work comes into being along with the creation of the work, provided it fulfils the requirements of being tangible and original. Registration is not necessary to establish this right. (The opposite is true of trademarks and scientific inventions; in such cases the right of industrial property as such exists only as from the time of registration of the make and the issuing of the patent by an official body.)

However, there remains the problem of proof. It is essential to give the work a precise date so as to prove in the event of litigation that the product developed pre-dates any pirate version. Therefore it is rather necessary to register the final product developed. The institutions, formalities and costs involved in this registration procedure vary from one Member State to another.
- Copyright does not need to be registered in order to exist (i.e. be valid), but registration is highly recommended for purposes of proof and better protection.

What type of work can it protect?

Copyright can protect a wide range of creative activity, such as the following types of work provided they fulfil the two conditions mentioned earlier:

Who may hold a copyright?

The author of the work himself

In most cases the copyright owner is the first person creating the work.

The employee / the employer

Certain national laws also provide that, when a work is created by an author who is employed for the purpose of creating that work, the employer, not the author, is deemed to be the owner of the copyright in the work. Instead, in other countries the employee remains the owner of copyright. Special provisions might have to be made – according to the law of the country – to clarify this situation (for example when signing employment contracts).

Two or more authors

When the contributions of different authors cannot be distinguished from one another in the final piece of work, it is considered as a "co-written work" over which the authors own copyright jointly. Typically, each joint author can enforce the copyright individually. However, certain national laws such as German law provide that if parts of the work are identifiable but not suited for separate exploitation, the creative contributors who have worked a common goal, jointly own copyright in the work but may not assign rights in their contribution.

When an author makes a contribution which can be clearly identified, a separate copyright may be negotiated. All the creative contributors are then considered as author and owner of their respective contributions, unless the authors have explicitly agreed by contract to "associate" their individual works in view of joint exploitation. This is the case under German law for example.

Some Member States such as France and Portugal have also developed a concept of "collaborative work" for creations in which more than one natural person have participated and their contributions may be identified separately. Typically, the work becomes the joint property of its authors and is to be exploited collectively.

The original right owner – the creator – may also transfer ownership of the right, for instance to a publisher.

What categories of rights does copyright include?

The content of the Intellectual property rights is set out mainly in the Berne Convention, the WIPO Copyright Treaty of 1996 and various subsequent international agreements. It includes economic and moral rights. The diagram below shows the basic rights involved in intellectual property:

diagram

- Respect of the author's moral rights (in accordance with the applicable law) may have important consequences for a project, in that they enable the author to oppose changes in his work if he has not expressly authorised them. This must be borne in mind in the event of work carried out by an employee or a subcontractor during a project.

Possible exceptions to these rights

Certain types of infringements do not constitute infringements in the strict sense and are therefore not punishable. For example:

  1. quotations, provided they are short
  2. representations or copies for private use; this exception is common in many countries
  3. press reviews and caricatures.

Subcontracting and moral rights

During the development of a product the author's moral rights can easily be infringed, particularly within a transnational project and in case of subcontracting parts of the project work to a third party. This may have serious consequences. Therefore, it is preferable to make a provision in the subcontracting agreement with the author (the subcontractor in this case) that the material he/she will create may be the subject of subsequent manipulations by the commissioning entity, which may alter to a certain extent, the integrity of the work.

However, this clause needs to be drafted carefully as in some Member States, such as France, moral rights of the author cannot be transferred or waived by contract.
Some Member States, such as United Kingdom, offer more flexibility with regards to the exercise of his moral rights by the author, as this right is not presumed to arise with the Copyright in the work but rather needs to be contractually provided for.

IPR Management and collective rights' management companies

The management of Intellectual property rights has nowadays shaped a whole new legal area, which is continuously developing. It deals with managing various categories of rights, such as neighbouring rights in artistic productions or mechanical rights to recordings of a performance. There are IPR collective rights' management companies – or collecting societies – which take care, on request, of the attribution of rights and the distribution of credits to all participating members of a work. Collecting societies shall exist in all Member States today, and often they cooperate between them. When a new music CD is produced, for example, it has to be registered with a collecting society before being released in the market or otherwise distributed. But IPR management applies also to other sectors, like research, ICT applications, etc.

What are royalties and licence agreements?

Royalties are usage-based payments made by one party, the licensee, to another, the licensor, for the use of an asset, like an intellectual property right. They can be determined as a percentage of sales or as a fixed price per unit sold (e.g. per CD). These arrangements take the form of a contractual provision into a licence agreement, which defines the terms and conditions under which intellectual property rights are licensed by one party to another.

Agreements within the partnership

As stated above, it is strongly recommended that the project partners settle all copyright issues at the very beginning of a project. You can find further information under the Check-lists for project promoters pdf - 21 KB [21 KB] .

Please bear in mind that the IPR is a very dynamic and complex law sector, which evolves continuously, just as the technology and the means of human creation evolve. For this reason, you should always seek professional advice if you would like to protect formally the results of your project, especially if you intent to proceed into commercialising them.

Disclaimer:
Please note that these guidelines offer advice, not legal opinion. They do not necessarily represent the official views of the European Commission, which can not be held responsible under any circumstances with regard to their interpretation or implementation.

To know more

Useful links

Short notes on some above-mentioned websites:

  1. WIPO, World Intellectual Property Organisation
    It is a specialized agency of the United Nations in the area of intellectual property law.
    See also:
    The WIPO Intellectual Property Handbook offers a comprehensive introduction to the policy, law and use of IP. A summary of intellectual property legislation in member States, as well as contact information, etc., is available in the WIPO Guide to Intellectual Property Worldwide.
  1. IPR Helpdesk
    Information on IPR issues as related to European projects and several links. However this information is mainly addressing the needs of projects under the EU Research Framework Programme, which are much more complex.
  1. European Audiovisual Observatory
    An information portal for the audiovisual sector (articles but see also several on-line services and databases). […] the only centre of its kind to gather and circulate information on the audiovisual industry in Europe. The Observatory is a European public service body with 36 member States and the European Community, represented by the European Commission.

 

Legal aspects

POULLET Corentin (2004) – 'Sixième programme-cadre de la Communauté européenne: le régime juridique applicable à la diffusion des résultats de la recherche',  in Journal des tribunaux, droit européen, 2004 v.142 pp.37-41

MACKENRODT, Mark-Oliver (2005) – 'The political economy of intellectual property rights and competition policy: report on a Max Planck conference on intellectual property and competition law', in International Review of Industrial property and competition law, 2005 v 36 n°1.

ORSTAVIK, Inger B (2005) – 'Technology transfer agreements: grant-backs and no-challenge clauses in the new EC technology transfer regulation', in International reviewof industrial property and competition law, 2005

BARSACQ, F.; DUHAMEL, M. (1996) - Practical guide for preparing technology transfer contracts. Luxembourg, EUR-OP, 1996 – 36 pp.