When should researchers be allowed to copy others’ work?

Academic research has its own standards when it comes to drawing on another person’s work.  Plagiarism is considered a terrible sin, at the high end of the scale of wrongdoing.  Lack of attribution is a serious matter, in the middle of the range of indictable offences.  Misspelling another researcher’s name in credits is a minor misdemeanour (but may be viewed seriously by the aggrieved party).

These standards are quite separate from questions of copyright law, and IP Draughts has observed that academics sometimes disregard IP issues when conducting research and producing academic papers.  For example, IP Draughts has come across numerous instances of computer programs that have been written by academic staff without giving any thought to IP infringement.  This issue sometimes comes up when the academic department wants to commercialise the software.

When challenged as to how the software was written, some academics airily respond that the ideas behind the software are original to them, and that they arranged for a junior colleague to do the coding, caring little how that coding was done.  Was the junior colleague an employee of the university?  Possibly not.  Did he or she have a written contract with the university?  Possibly not.  Did he or she incorporate routines into the software that they found on the internet?  Quite possibly – it would have been a waste of time and money to reinvent the wheel.  Was any of this internet software subject to open source licence terms and did the programmer click on an “I accept” button when they downloaded it?  Quite possibly, you would need to ask them.  I’m sorry I’m late for another meeting, but hopefully you now have all the information you need.

This attitude of carelessness about IP issues may result, in part, from a belief that IP laws allow use of the IP for the purposes of research.  It is certainly true that both patent and copyright laws have exceptions that allow limited categories of research to be conducted without infringing the IP.  But the scope of those exceptions is not as all-encompassing as academics like to think, and anyway the extent of the exceptions varies considerably between countries.

This topic has come into IP Draughts’ mind as a result of the UK Government’s current Consultation on Copyright.  Sections 7.68 to 7.83 of the document consider the current exceptions in UK copyright law for research and private study, while sections 7.84 to 7.99 focus on data mining, which is not currently permitted under UK copyright law.

Private study

The Government raises three points on the research exceptions.  First, it proposes to extend the research exception to all type of copyright work, including sound recordings and films.  At present, partly for historical reasons, it applies only to literary, dramatic, musical and artistic works, and certain published editions.  The Government considers that the current law is inconsistent and prejudices research in the humanities.  IP Draughts agrees with this view and hope the law will be changed on this point soon.

The Government’s second topic relates to access to electronic copies of works in libraries.  The consultation paper points out that the UK is permitted by Article 5(3)(n) of the EU Copyright Directive to introduce an exception to copyright, to allow use of electronic copies on “dedicated terminals” in libraries for the purposes of research or private study.  To date, the UK has not introduced such an exception.

IP Draughts is uncertain how useful such an exception would be.  According to Article 5(3)(n) it applies only to “works and other subject-matter not subject to purchase or licensing terms”.  In IP Draughts’ experience, electronic copies of copyright works are usually, if not always, sold subject to licensing terms which restrict the use that the purchaser can make of the work.  Can any reader comment on how useful this exception would be, and whether it has proved useful in any other EU country that has introduced the exception?

We'm gotten a good load of data for you today, sir!

Finally, the UK Government focuses on the subject of copying complete works for the purpose of “data mining”.  It proposes to introduce a further exception in UK copyright law to allow such copying by academic researchers.  This new right would be based on the permitted exception under Article 5(3)(a) of the Copyright Directive.  It seems that the Government would also like to introduce such a right for commercial research, but recognises that it is not permitted to do so by the Copyright Directive.  Therefore, it proposes to explore with its “European partners” how to develop the legal framework in relation to commercial data mining.  In other words, a change in EU law would be required before this objective could be achieved.

IP Draughts predicts that this last point may be the most controversial of the three, as illustrated by the recent Meltwater litigation.