Copyright and Intellectual Property

1.  Intellectual Property

Intellectual property and copyright legislation present important issues to institutions that are planning to implement a repository or have already set up a repository. If an institution is not aware of the relevant legislation and what they can legally deposit in their repository they could be liable for breaching copyright.

Intellectual property is a term that refers to the ownership of an intangible thing — be it the innovative technology behind a new product, the brand name affixed to it, the goodwill the company making the product enjoys, or the manner in which the product and associated material are presented. Intellectual property is now often recognised as the most valuable asset in a business.

Bide (2002, p.9) states that the purpose for protecting intellectual property is “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”.

For a comprehensive discussion of the issues presented by copyright and intellectual property readers should refer to Jones, Andrew & MacColl Chapter 6 and Bide’s (2002) report: Open Archives and Intellectual Property: Incompatible World Views. Another highly useful resource is the Open Access to Knowledge (OAK) Law Project’s repository guide report written by Pappalardo and Fitzgerald (2007). This report contains important sections that discuss pre-prints and post-prints and copyright issues.

This section will focus on several issues seen as highly relevant and will offer readers resources to consult to gain further information on these issues.

2.  Institutional Repositories as Publishers

Institutional Repositories (IR) allow universities and polytechnics around New Zealand to make works available to the public by depositing into a publicly accessible repository. This raises the question as to whether the institution is therefore a publisher. Jones, Andrew, and MacColl (2006, p.147) have discussed this issue and suggested that the institution maybe one of three legal positions:

• Common carrier - absolute immunity
• Distributor - not subject to liability unless the have specific knowledge
• Publisher - liable for what they choose to publish

Bide (2002) states that those running e-print archives or repositories should attempt to follow good publishing practice as he believes that is what they are. Repository management should attempt to engage in agreements with authors regarding publishing their work.

Research into intellectual property issues by Kelley, Bonner, McMichael, and Pomea (2002, p.259) found that only 52% of institutions surveyed had developed an intellectual property policy, while 29% had no such policy at all.

3.  Copyright Legislation

Copyright issues present a number of challenges for institutions implementing repositories and also raise questions for authors deciding whether to deposit their research into the repository.

For the institution:

• Who owns copyright? The author or the institution?
• What is ‘fair use’?
• Do human ethics agreements apply to the publishing of the thesis or research paper in the repository?
• Do institutions have to get approval from third parties cited in a thesis or paper? (discussed further in the third party copyright section)

Institutions can expect to field questions from academics, such as:

• Will they be breaking agreements with publishers?
• Will journals subsequently publish the paper after being deposited in the IR?

Gadd, Oppenheim, and Probets (2003) have investigated these issues comprehensively in their reports for the RoMEO Project.

4.  E-Learning Material and Courseware

See the Third Party Copyright section.

5.  Third Party Copyright

See the Third Party Copyright section.

6.  New Zealand Law

See the Third Party Copyright section.

Usefully, the Ministry of Economic Development has made available a number of resources relating to copyright and intellectual property.