Bequeathed Research Papers and the Law (16 April 2012)

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Table of Contents

1.      Introduction

2.      Copyright

3.      Data Protection

4.      Freedom of Information

 

Key Points

  • Copyright in research papers created in the course of employment usually vests in the employer and the employer’s permission will be required for dissemination

  • Where the will includes assignment of copyright the institution will be free to disseminate the research papers including digitising and making available in a repository

  • Where the will is silent, copyright in unpublished works bequeathed by an individual who died on or after 1 August 1989 will be owned by the institution, which will be free to disseminate the research papers

  • Where the will is silent and research papers not created in employment have been previously published copyright vests in the heirs whose permission will be required for dissemination

  • Where research papers contain personal data permission from those individuals whose personal data is incorporated in the research will be required for dissemination unless anonymised

  • The public can request access to research data held by institutions under freedom of information, subject only to limited exceptions

 

1. Introduction

This guidance is relevant to university and college archives dealing with bequests of research papers, and provides information on the legal issues which need to be considered in particular where an institution intends to digitise and add documents to an institutional repository.

Where research papers are bequeathed to an institution copyright, privacy/data protection and freedom of information are all relevant legal areas to consider.

2. Copyright

Research papers are protected by copyright as literary works under the Copyright, Designs and Patents Act 1988 (CDPA).  Copyright in a research paper will lie with the researcher, unless it is created in the course of employment, in which case, ownership of copyright will lie with the employer in the absence of agreement to the contrary.  Copyright in a literary work lasts for 70 years following the death of the author.  If the research papers were created before 1 August 1989 then the term may be different depending upon when the work was created, if the work was published and when the author died.  Tim Padfield has published a useful chart on copyright duration available at:  http://www.bl.uk/reshelp/pdfs/copyrightflowchart.pdf

Where the author of a research paper has died and the paper been bequeathed to an institution where does copyright lie?

If the paper is created in the course of employment and copyright vested in the employer, then copyright will continue to be owned by the employer on the researcher’s death.  A copyright owner has the right to control the copying, adaptation, publishing, performance and broadcast of the work, and under what conditions this may be done.  This means that if the researcher’s employer at the time the works were created was not the institution to which the papers have been bequeathed then permission will be required from the relevant employer to disseminate the research papers including digitising the papers to make them available in a repository.

Where the original owner of copyright in the research papers is the researcher then the institution will need to consult the will bequeathing the papers to the institution to determine if they contain an assignment (transfer) of copyright to the institution.  Where there is an assignment of copyright to the institution the institution will be free to determine how it disseminates the research and whether it digitises the papers and makes them available in a repository subject to complying with any contractual conditions imposed in the will bequeathing the papers. There may for example be confidentiality provisions or conditions requiring non-commercial use.

If the will is silent on the issue of copyright then the law regarding where copyright lies differs slightly depending upon when the researcher died.

If a researcher who dies on or after 1 August 1989 bequeaths to an institution an original document or other material thing recording or embodying a literary work which had not been published at the time of his or her death then the bequest shall be taken to include any copyright which the researcher owns in the work unless there is anything in the will to the contrary.  

For bequests between 1957 and 1989 the rules apply to original documents and do not include for example computer discs.  Before 1957 the rules applied only to manuscripts and the individual making the bequest had to be the creator of the work not just the owner of the copyright in order for copyright to transfer to the institution or individual to whom the work was bequeathed.

Where the conditions described above do not apply, for example if the research papers have been previously published, then copyright will lie with the heirs and their permission will be required for dissemination of the papers including digitisation and inclusion in a repository.

Third Party copyright works

Should the research papers include copyright works the ownership of which lie with third parties (for example, third party images) then permission from such third parties will be required to further disseminate the research papers unless a previously granted licence or permission covers the new reuse.

3. Data Protection

The Data Protection Act 1998 protects personal information about an identifiable living individual.  Where an institution is bequeathed research papers which include personal data then consent will usually be required from any individual whose personal data forms part of the research in order to use that information where there is an intention to do anything with the data which is beyond the purpose for which the information was originally provided to the researcher.  Personal data may have been provided on condition it was only accessible by the researcher or that it is anonymised prior to dissemination.  Consent will usually be required from an individual to digitise a paper including their personal data and to make it available in a repository as it is unlikely that such use was in the contemplation of the individual when the information was supplied.

With respect to research data it may be possible to avoid having to obtain permission to digitise a paper by anonymising the data prior to digitisation.  Further guidance on research data can be found in the UK Data Archive document – Managing and Sharing Data Best Practice for Researchers (http://www.data-archive.ac.uk/media/2894/managingsharing.pdf)

Where research papers bequeathed to an institution contain personal data then that will be information held by the institution and an individual will have right to make a subject access request to receive that information.

Further information on data protection is available from the JISC Legal website at http://jiscleg.al/dataprotection

4. Freedom of Information

The Freedom of Information Act 2000 (FOIA) gives a right of access to information held by 'public authorities.'  Most UK colleges and universities are public authorities. The information requested can include research data therefore an institution to which the Act applies must provide access to information requested unless an exemption applies.  An institution needs to reply to a request for information within 20 working days. Separate FOI legislation applies to Scottish institutions but place similar duties.   

Further information on Freedom of Information is available from the JISC Legal website at http://jiscleg.al/FreedomofInformation.  For information specific to release of research data JISC have published a guidance paper entitled Freedom of Information and Research Data available at http://www.jisc.ac.uk/foiresearchdata#6 .   The paper covers, for example, disclosure of data held under obligation of confidence, data which may identify living individuals and intellectual property rights.

Posted on 16/04/2012