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Intellectual property

 

Intellectual property (IP) refers to a wide range of ownership/economic rights and moral rights that result from the creation of original works, scientific inventions and discoveries, as well as other areas. IP rights are the rights that the owner/creator have over how their IP is used. Ownership/economic rights and moral rights are separate and distinct. All ownership/economic rights can be assigned or transferred. Moral rights cannot be assigned or transferred to a third party and remain with the creator/s, even if the ownership/economic rights have been assigned or transferred to another party, such as the University. While you cannot assign or transfer your moral rights to a third party, you can consent to waive recognition of your moral rights, or to allow your moral rights to be infringed.

In Australia, intellectual property is divided into distinct categories, which are each afforded different types of legal protection. These categories are as follows:

  • copyright (literary, artistic, dramatic or musical works, films, broadcasts, multimedia and computer programs)
  • patents (new or improved products or processes)
  • trademark
  • designs
  • circuit layout rights
  • plant breeder’s rights
  • confidentiality/trade secrets.

Copyright and circuit layout rights are automatic. For all other forms, IP rights must be formally applied for/registered.

There are three moral rights recognised under Australian law:

  • the right to be named as the author of a work
  • the right not to be falsely attributed as the creator of a work
  • the right to integrity of authorship (that is, the right not to have your work subjected to derogatory treatment, or treated in a way that damages your honour or reputation).

 

Intellectual property at the University of Sydney

Since 10 May 2016, intellectual property at the University has been regulated by the Intellectual Property Policy 2016 (IP Policy). The old University of Sydney (Intellectual Property) Rule 2002 (IP Rule) was rescinded by the University Senate as of 2 May 2016. 

The IP Policy deals with the following areas:

  • ownership rights of staff, students, and visitors
  • reporting, development, and commercialisation of IP
  • distribution of proceeds resulting from commercialisation
  • moral rights associated with IP
  • dispute resolution processes.

Under the policy, students own the copyright in their theses and scholarly works in the absence of any agreement to the contrary. While the policy states that students will own all other IP they create, there are exceptions in the policy, so the University will own IP created by students in the following circumstances:

  • where the student has entered into an Agreement to that effect
  • where the supervisor or any other staff member has made a substantial intellectual contribution (defined for this purpose as being a contribution of 35% or more) to the creation of the IP
  • where the IP has been created using the University’s background IP.

While students will own all other IP they create, they can be required to assign this to the University in order to be able to participate in any project that already has IP, or may create IP in the future; or which has funding provided by a third party. In these situations, it is the responsibility of both the chief researcher and the student’s supervisor to notify the student of the requirement for the student to transfer their IP, or to give consent with respect to any moral rights, before they begin work on that project. They also need to ensure that the student has a reasonable amount of time to obtain legal advice (which generally should not be less than 14 days) before signing the agreement. Students who transfer their IP rights are entitled to a share of any commercial benefits, subject to any third-party agreement.

SUPRA strongly recommends you do not sign any such document until you gain independent advice from our Legal service, who can assist you in understanding/negotiating any conditions on your involvement in research projects.

 

Why does IP matter to me?

Under the IP Policy, students hold the copyright rights in their own thesis and scholarly works, unless they have made an agreement otherwise. They also retain IP rights unless the supervisor has made a substantial intellectual contribution to the creation of the IP (which is defined as 35% or more). However, in a collaborative or supervisory relationship that lasts over a period of years, it may become difficult to delineate and quantify respective contributions, meaning that issues may arise.

SUPRA has seen a lot of research students in this position, and so we strongly recommend that all students keep records, emails, drafts, etc. so they are able to clarify their ownership of IP if needed. Here are some ways you can do this:

  • read about your IP rights and moral rights in the Intellectual Property Policy 2016, which you can download from the University of Sydney Policy Register
  • read the University’s Research Code of Conduct 2013 (the Code). The Code sets out the responsibilities of researchers of the University (both staff and students), including clarifying the requirements for a claim of authorship (see below for more information on this); defining research misconduct; and setting out the processes and procedures for complaint handling in relation to research misconduct or code breaches. Please note: allegations relating to matters that occurred prior to 27 May 2013 will be assessed against the definitions and code of practice as set out in the former policies, (the Code of Conduct for Responsible Research Practice and Guidelines for Dealing with Allegations of Research Misconduct 2001 (the old Code)) but will be dealt with pursuant to the dispute resolution provisions of the current Code. If you would like to see a copy of the old Code, or need any advice about either the current or old Code, please contact SUPRA
  • be familiar with the Research Data Management Policy 2014 (Data Policy) and the Research Data Management Procedures 2015, particularly clause 11 of the Data Policy which deals with ownership of research data and primary materials
  • discuss IP arrangements with your research supervisor and auxiliary supervisors
  • consult the solicitor at SUPRA’s Legal Service
  • contact the University’s commercial IP management arm, the CIDP: https://sydney.edu.au/about-us/partnerships/industry-and-business-partners.html

Finally, if you have created IP capable of protection and want to commercialise that IP, the University encourages students to approach CDIP to do so. Initial advice is confidential and free, although any action taken by the University to develop the IP may require a student to enter into an agreement with the University. This usually requires the assigning of ownership of the IP created in return for a share of income.

 

Disputes

Sometimes disputes can arise about ownership and other issues relating to IP so the policy sets out a dispute resolution procedure. If a dispute arises regarding interpretation or application of the IP Policy, notify the other originators where applicable, and the Director of the CDIP. The Director will try to resolve the dispute first through alternative dispute resolution (ADR) procedures. If needed they can retain an external advisor to advise them about the dispute and the subject matter. If not resolved, the matter will be referred to the Deputy Vice-Chancellor (Research) who will appoint an external, independent expert to determine the matter. That determination will be final and binding on all parties.

 

Authorship credit

The law relating to IP, and the moral rights that each author has in their IP, requires that each author be acknowledged appropriately as the author of their works.

The Code states that in order to be listed as an author (irrespective of the question of order, which is dealt with below), a person must have made a substantial intellectual contribution to the published work, in one or more of the following:

  • the conception and design of the project;
  • the analysis and interpretation of the research data, or of the eligibility or suitability of potential subjects of research; and/or
  • drafting significant parts of the work, or critically revising it, so as to contribute to the interpretation.

It is important to note that unlike the IP Policy, the Code does not quantify a minimum level for the substantial intellectual contribution to give rise to these rights.

It is important to note that authorship requirements may also vary according to discipline, journal requirements, and funding provisions, meaning they may be more stringent in some cases. Generally, examples of substantial intellectual contributions include the following:

  • developing the research design
  • writing parts of the manuscript
  • contributing or integrating theoretical perspectives
  • developing conceptual models
  • designing assessments
  • analysing data
  • interpreting results.

Among other things, the provision of funding, materials, equipment; access to research participants; routine assistance in some aspect of the project; general supervision of the research team; or taking the measurements on which the publication is based, without also having had some other intellectual contribution to the research or publication, do not constitute a substantial intellectual contribution, and therefore are not deemed to justify authorship status. In addition, editorial services do not generally justify authorship credit; however, editors of a significant collective work or anthology who have responsibilities analogous to those listed for authorship can claim authorship.

It is also a requirement of the Code that researchers offer authorship to all people, including research trainees, who meet the criteria for authorship listed in the Code (see clause 12.5). Further, it is a requirement of the Code that contributions other than authorship must be properly acknowledged. Such contributors may include, for example, research assistants and technical writers. As such, a student must be acknowledged appropriately if they have contributed as outlined.

 

Order of authorship of credit

The question of order of authorship credit is a difficult one. There is no reference in the Code to authorship credit and order decisions. However, as a general guide it is recommended authorship credit and order decisions be based on the scholarly and professional contributions of the collaborators, and that these abilities are assessed according to the specifics of each writing project. In other words, the order of authorship credit should reflect the relative contributions to that specific publication, regardless of an author’s role in the overall project. As publications require ongoing development such as re-writes, circumstances often change during the time between the initiation of an article and its final publication which may necessitate the changing of the order of authorship. On a multiple-authored article that is based primarily on a student’s thesis or Masters research report, the student ordinarily is listed as principal author.

An author can withhold consent to publication. The Code states a person who qualifies as an author must not be included or excluded as an author without their permission. Where a person who qualifies as an author is deceased, or cannot be contacted, publication can proceed provided there are no grounds to believe the person would have objected to inclusion as an author. In addition, most publications have a requirement that authors must ensure they have named all people who could claim authorship credit, all their co-authors consent to submit the article for publication, and that they have the right to sign the Contributor Agreement with the publication on their behalf.

As a result, if an author proceeds to publication without both crediting all those who qualify as an author and having their consent (or in the case where the author cannot be contacted, having no grounds to believe they would object to publication), they open themselves up to an allegation of research misconduct being made against them. Allegations of research misconduct should be made to the Director of Research Integrity at the University. However, prior to making an allegation of this nature, students are expected to raise any concerns about the conduct of research including authorship complaints with their Faculty’s Research Integrity Adviser, or the Head of Department, Supervisor, or Chair of the relevant Faculty Research Committee.

Note: The solicitor at SUPRA’s Legal Service can assist you if you require advice in relation to a matter that occurred before 27 May 2013, where the definitions and requirements that apply will be those set out in the old Code.

 

Use of other people’s intellectual property in your work

As well as ensuring you comply with the Code, it may be necessary during the course of your candidature to seek permission from a copyright holder, if you wish to reproduce part or all of a work subject to copyright in your thesis. Situations where this may be necessary include lengthy quotes or excerpts of text from published books and journal articles; entire works such as a journal article, a graph, or a figure; material on the internet; artworks; diagrams; illustrations; maps and photos; extracts from recorded music; or clips from TV programs and movies.

Generally speaking, copyright law states that if you use or reproduce material that is subject to copyright without permission of the copyright holder, you are infringing their copyright. The Copyright Act does allow for reproduction or use without permission for the purposes of research and study, or by educational institutions. It sets out strict conditions and frameworks for such use – known as the fair dealing provisions. However, if you want your thesis to be made available open access, or if you want your thesis published by a publisher, you will need to obtain permission from the copyright owners of any third-party copyright material included in the thesis. You will not be able to rely on the fair dealing exceptions.

While you don’t need permission to reproduce short quotes from others’ material (as long as the quotes are correctly cited and are insubstantial parts of the material), you should not assume you are able to reproduce a piece of text, diagram or other image and place it in your thesis without the permission of the copyright holder. This applies regardless of where you sourced the work in question. For instance, items freely available for download from the internet are not necessarily able to be reproduced and placed in your thesis without the requisite permission simply because they are openly available to the public from a website. As a first step you should check the terms of use to clarify whether or not you need to seek permission. For instance, a great deal of copyrighted material is made available under a Creative Commons license that permits the relevant use. Additionally, website owners sometimes give a licence that allows the re-use of their copyright material without further permission. This will be set out in the terms of use for the relevant website. 

It is vital that you keep accurate citations as you research so you have the relevant information when you are ready to contact publishers. However, you should not delay this process too long as seeking permission and obtaining clearances to use copyright material can take a long time.

You should also note that if your thesis will include papers or articles you have written that have been published, you will need to check the copyright status of this material with your publisher. You may, for example, have assigned or exclusively licensed all your copyright to the publisher, in which case, you will not be able to use that material in your thesis and make it available open access without their permission. Many journal publishers, will allow an author to include their own articles in their thesis, so you should check this with your publisher.

Finally, if you use other’s copyrighted material, you will also need to ensure that you have fulfilled your obligations to comply with their moral rights to be named, correctly attributed, and to the integrity of their work. Failure to do this is an infringement of their intellectual property rights and could also leave you open to allegations of plagiarism. For more information on the University’s plagiarism policy, see also: academic honesty.

 

Further information

The SUPRA Legal Service can assist you with legal advice about intellectual property. For a more detailed explanation of the IP Policy, the Codes (Current and Old), or advice about your rights under these policies, please contact the SUPRA Legal Service. You can also read the relevant section in the SUPRA Survival Guide.

The University library has a range of online resources relating to Copyright with the publishing section being of particular relevance to Higher Degree Research students: https://library.sydney.edu.au/help/copyright/

The Australian Copyright Council has a wide range of information sheets relating to Copyright: www.copyright.org.au

IP Australia is the Federal Government agency responsible for managing IP rights in Australia – they provide general information on IP: www.ipaustralia.gov.au

Disclaimer

This information is current as at June 2018 and is intended as a guide to the law as it applies to people who live in or are affected by the law as it applies in NSW. It does not constitute legal advice.

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