Copyright and the Researcher – Current Issues in EU Legal Counsel ( IPR), Maria Rehbinder, Aalto University Visualizations: Animator, Research Assistant Sanna Vilmusenaho, Aalto University

Outline Why Copyright Matters Introduction Challenging Areas in EU Copyright legislation Copyright and Open Access

Copyright Affects : The ability of readers to find researchers work The citation rate and impact factor The possibility of a researcher to post on his /her own website Contribution to university digital repository Use in lectures and teaching materials Continuing research based on previous research results and the building of university research agenda

Aalto University combines science, art, and business schools and university Research Support Services have employed art students in making animations and visualizations of copyright issues complex concept structure that is difficult to be held in a persons short term working memory can be displayed in visual form visualization offers a cognitive tool offer an introduction to copyright issues and termshttp://copyright.aalto.fi/en/videos/

Both US and all EU member states are parties to the convention Berne Convention for the Protection of Literary and Artistic Works, harmonizing many aspects of national copyright legislation Challenging Areas of National Copyright Legislation in EU Fair use Work-for-hire Moral rights

European Union member states national copyright legislation is harmonised by Copyright Directives to some degree Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society lists exception rules that are allowed, but there are no mandatory exceptions, thus fair use exceptions and exceptions concerning illustration for scienctific presentations are legislated nationally and there are national differences

There is no general work-for –hire legislation in Europe, and copyright law varies on this point except for computer programs that fall under a harmonised work- for-hire rule Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs ensures work-for hire in computer software ”Where a computer program is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the program so created, unless otherwise provided by contract. lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31991L0250:EN:HTML lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31991L0250:EN:HTML However, in Finland this is implemented to not include ”independent academic research ” at universities

Continental European tradition emphasizes authors rights and especially the strong protection of authors moral rights, right of paternity and right of integrity There are restrictions in national legislation on what kind of agreements can be made about moral rights, total waiver of moral rights may not be possible. In Finland and Nordic countries agreements with the author on moral rights have to be specific, for example that a work may be changed in a specified way but a general waiver or transfer of moral rights is not valid

The stronger moral rights are demonstrated in the court case Turner Entertainment Co. v. Huston, CA Versailles, civ. ch., December 19,1994, Turner Entertainment Company acquired rights to "Asphalt Jungle," a 1950 John Huston movie, added color to Huston's black and white movie and agreed with a French television channel to broadcast the color version. Huston's heirs and the screenwriter started court proceedings to prevent the broadcast of the altered work The French Supreme Court held that the "integrity of a literary or art work cannot be affected in France, regardless of the state in whose territory the said work was made public for the first time “

In case there is no work-for-hire provisions in national law, the author is the owner of copyright until there is an agreement by which the author assigns the copyright. There can be several authors to a work, for example to a refereed research article

Copyright can be assigned to a legal entity for example the legal entity Aalto University Foundation with a Business ID identifying the legal entity Intellectual property assignments need to be made to the proper legal entity, this is especially important if the intellectual property is registered Any transfers of copyright, whether granting a lisence or transferring ownership of copyright all researcher/authors have to agree on the use of copyright in articles and other research results

The beginning of the research project is the time to ensure employee agreements on copyright, for example in Aalto University agreement on copyright for externally funded research is an annex to every work agreement. The agreement has to take in consideration requirements of funding bodies and other third party agreements

Funding bodies such as the European Union Commission place requirements on how the copyright to research results are handled and agreed upon EU Horizon2020 funding requires that 100 % of research publications are published using open access publishing Applications for funding starting 2014 will have to take this into consideration, and all agreements with researchers about copyright have to accommondate this if EU funding is wished for

As of 2014, all articles produced with funding from Horizon 2020 will have to be accessible articles will either immediately be made accessible online by the publisher ('Gold' open access) - up-front publication costs can be eligible for reimbursement by the European Commission; or researchers will make their articles available through an open access repository no later than six months (12 months for articles in the fields of social sciences and humanities) after publication ('Green' open access).

The open access measures complement the Commission's Communication to achieve a European Research Area (ERA). As a first step, the Commission will make open access to scientific publications a general principle of Horizon 2020, the EU's Research & Innovation funding program for EU Commission Communication COM(2012) _en.htm 790_en.htm

European Research Council has OA requirements :Publisher's version and/or Author's final version, in a discipline-specific repository, institutional repository or author's website if no repository available Within six months of publication Open Access costs can be charged against grant t/file/open_access_policy_researchers_funded_E RC.pdf. t/file/open_access_policy_researchers_funded_E RC.pdf

The Commission has also recommended that Member States take a similar approach to the results of research funded under their own domestic programmes. The goal is for 60% of European publicly-funded research articles to be available under open access by Many UK national funding bodies require Open Access publishing, for example Cancer Research UK openaccess.html#myfunder openaccess.html#myfunder

SHERPA/FACT is a tool to help researchers check if the journals in which they wish to publish their results comply with their funder's requirements for open access to research

Several agreements are needed to comply with the OA requirements : Agreement with the researchers employed by university (if no work-for –hire provisions apply ) Agreement with the other writers of the article not employees- often corresponding author confirms that he/she has the permission of these authors for open access publishing The Publisher Agreement with the publisher of the original article All these agreements have to allow open access publishing by university, if article is published in the open acces repository of university (Green open access) Gold open access agreements done by publishers cover all writers and the rights of the publisher

Universities have adopted Open Access Policies and Mandates to advance Green Open Access in the university repository, for example The University of Southampton requires that all of its staff deposit bibliographic information for all research outputs in the Eprints Soton research repository, so there is a comprehensive institutional record of research activity. The University requires that post-prints of journal and conference articles are deposited, and made open access where this is permitted by the publisher, to maximise the visibility and impact of research.

There is a “carrot “ for researchers to comply with the policy, the deposited outputs are used for internal review of research performance and to assist in appraisals and promotions within the University for and for submitting information for external review e.g. the Research Excellence Framework

Agreements about rights are needed but they are not sufficient For institutional self-archiving of research articles, the actual self-archiving work has to be done. Repositories remain empty in universities without open access mandates

Open Access self archiving can be tied to reward. The University of Liege’s repository ORBi has over 50,000 full text items as a direct result of their decision to only consider research that is available Open Access in promotional & tenure applications. ( kingsley-on-state-of-open-access.html) kingsley-on-state-of-open-access.html

Université de Liège (BELGIUM* institutional-mandate) All publications must be deposited. Wherever publisher agreement conditions are fulfilled, the author will authorize setting access to the deposit as open access By default, access to a deposit will be closed access, except where open access has been authorised. In case of doubt, access will remain closed to avoid any conflict with publisher agreement conditions For closed access deposits, the institutional repository will have an EPRINT REQUEST BUTTON which allows the author to fulfill individual eprint requests

November 26, 2008 ( from message of Rector Bernard Rentier to University of Liege faculty): From today onward, it is incumbent upon each ULg member to feed ORBi with his/her own references. In this respect, the Administrative Board of the University has decided to make it mandatory for all ULg members: - to deposit the bibliographic references of ALL their publications since 2002; - to deposit the full text of ALL their articles published in periodicals since Access to these full texts will only be granted with the author's consent and according to the rules applicable to author's rights and copyrights. The University is indeed very keen on respecting the rights of all stakeholders. [2] For future publications, deposit in ORBi will be mandatory as soon as the article is accepted by the editor. [3] I wish to remind you that, as announced a year ago in March 2007, starting October 1st, 2009, only those references introduced in ORBi will be taken into consideration as the official list of publications accompanying any curriculum vitae for all evaluation procedures 'in house' (designations, promotions, grant applications, etc.).

November 26, 2008 ( from message of Rector Bernard Rentier to University of Liege faculty): Information seminars have been planned during the next months to allow every one of you to make the tool your own thing. Help is also accessible online, such as the simplified user's guide (also available as a leaflet) and the Depositor's Guide. The development of ORBi offers multiple advantages not only to the Institution, but also to the researchers and their teams, such as: - a considerable speeding up of the dissemination and visibility of the scientific works (as soon as publication approval is granted; - a considerable increase in visibility for the published works through referencing in the main search engines (Googlescholar, OAI metaengines, etc.); - centralised and perennial conservation of publications allowing multiple exploitation possibilities (integration in personal web pages, in institutional web pages, export of reference lists towards other applications and to funding organisations such as the Belgian National Fund for Scientific Research); - etc.I hope that, despite the time you are going to devote to this somewhat tedious task, you will soon realize the benefits of this institutional policy. English translation added by: Stevan Harnad () harnad AT ecs.soton.ac.uk on 11 Mar 2007 Copyright © University of Southampton, UK of Southampton, UK

ORBi has grown from 293 full text references in August 2008 to over full text ´references in e=downviews-series-ulg&tab=1&type=access e=downviews-series-ulg&tab=1&type=access

Legal Counsel Maria Rehbinder has worked for Copyright Society Kuvasto, has served as a Member of the Ministry of Education Copyright Council of Finland and works currently for Aalto University and the Copyright Advisory Service of Art Universities Contact :