What is protected by copyright?
Basically, copyright protects two things. First, it protects literary and artistic works which include books, articles, films, photographs, pictures, drawings, computer programs, drama and music. Such works are subject to copyright protection lasting for 70 years after the death of the author. You can obtain this protection only if the work is original, that is, created by an author in a creative way. The protection is set out in chapter 1 and onwards of the Danish Copyright Act.
Second, the Copyright Act protects a number of things that are not, or at least not always, actual original works, but which nevertheless need protection. These include creative artists’ performance of works, sound recordings, films and photographs, whether they are original or not, TV shows, etc. They are subject to what is known as neighbouring rights protection. It is not a requirement that the product is original to obtain this protection, and the duration of the protection is substantially shorter than the copyright protection. The rules governing neighbouring rights protection are outlined in chapter 5 of the Danish Copyright Act.
You can read more about protection under copyright in Morten Rosenmeier’s guide to copyright, Ophavsret for begyndere – en bog til ikke jurister, chapters 3 and 10.
What does copyright entail?
When it comes to the actual works which are protected under the Danish Copyright Act, chapter 1 and onwards, copyright entails that the author gets some “economic rights” (section 2 of the Danish Copyright Act) as well as some “moral rights” (section 3).
Economic rights mean that without permission from the author you are not allowed to:
- Make copies of the work, that is, make physical objects containing the work. Copying includes printing of books, photocopying of texts, etc. Copying also includes saving a work in digital form, for example, if you store a text or an image you have found on the Internet on a USB key or a hard disk, because then you turn the digital medium into a kind of copy. It also constitutes copying to make a representation of a work, for example drawing a statue or making a painting based on a photograph.
- Distribute copies to the general public, that is sell them, rent them, give them away, etc.
- Display copies to the general public. Display means that you place a copy of the work somewhere for the general public to see. For example, if you put a poster on a billboard or place an open book in a bookstore window, you are displaying it.
- Perform the work in public. Among other things, playing music and films to an audience, playing recordings of music and movies, reciting literary works, etc constitute performance. Performance also includes broadcasting works or posting them on the Internet. Usually, uploading work to the Internet does not just entail performance, but also copying, because you store the work on an Internet server.
On the one hand, the moral rights (section 3 of the Danish Copyright Act) imply a paternity right (section 3(1)) and, on the other hand, a right of integrity (section 3(2)). Right of paternity means that you, unless the author waivers or ‘good practice’ dictates otherwise, are obliged to identify the author when you are legally entitled to make copies of the work or use it in public. The right of integrity means that you, even in cases where you are allowed to make use of a work, are not allowed to change it or use it in a way or in a context that infringes the author’s literary or artistic reputation or uniqueness.
The implications of neighbouring rights are outlined in the various sections of chapter 5 of the Danish Copyright Act.
The author can set up conditions for granting permission, including demanding money in exchange.
You can read more about the implications of copyright in Morten Rosenmeier’s guide to copyright, Ophavsret for begyndere – en bog til ikke jurister, chapters 5 and 10.
Copyright protects only works, not their underlying ideas, theories, isms, etc. So if you are writing a literary work, you will as a rule not have the sole and exclusive right to use the abstract ideas etc. contained in it. However, it can sometimes be a scientific-ethical problem to take over the ideas of a work, cf. the article on plagiarism.
Is research protected by copyright?
Research often results in something that can be protected by copyright.
Researchers’ texts can be protected as literary works. This applies to articles, dissertations, including PhD theses and dissertations, textbooks, contributions to books, working papers, oral presentations and lectures at conferences etc., the PowerPoint slides that accompany the oral lectures etc.
You can also protect the images, the researchers are making, such as graphs, figures, diagrams, drawings, posters, photographs, etc.
You can also protect sound recordings and films, for example of interviewees etc. If the recordings are original and an expression of free, creative choices by the author, the recordings will be protected as original works under chapter 1 of the Danish Copyright Act. Even if they are not, they will also be subject to neighbouring rights protection under chapter 5 of the Danish Copyright Act, more specifically sections 66 and 67. Sound recordings and films that are an expression of originality are subject to copyright as well as neighbouring rights protection. Sound recordings and films that do not reflect originality have neighbouring rights protection only.
Researchers’ computer programs, including source and object code, are also copyright protected. You can read more about the protection of computer programs, including the definition of a computer program in terms of copyright, in Morten Rosenmeier’s guide to copyright, Ophavsret for begyndere – en bog til ikke jurister, chapter 3.E.5.
Finally, there is also copyright for compilations, including compilations of work, electronic databases, etc. A compilation is characterised by the systematic compilation of various individual elements.
If a compilation compiles elements in an original way that reflects personal, creative choices made by the author, the compilation may be protected by copyright just as original work according to chapter 1 of the Danish Copyright Act.
If a compilation compiles elements in a way that reflects a significant degree of economic investment, it may be subject to neighbouring rights protection in accordance with section 71 of the Danish Copyright Act.
A compilation which is both original and constitutes an investment has both copyright and neighbouring rights protection.
You can read more about the protection of compilations in Morten Rosenmeier’s guide to copyright, Ophavsret for begyndere – en bog til ikke jurister, chapters 3.I and 10.F.
Copyright of employed researchers
The copyright of works created by employees will to some extent be assigned to the employer due to the employment relationship. In this connection, it is necessary to distinguish between computer programs and other works, etc.
Works other than computer programs
When it comes to copyrighted works other than computer programs, the employer will, unless otherwise agreed with the employee, only be entitled to the parts of the employee’s copyright, which were necessary for the employer’s ordinary course of business at the time when the employee did the work.
However, this does not normally fall within the ordinary course of business at universities and other educational institutions to exploit the works of researchers. Therefore researchers will as a rule retain the copyright to their books, articles, images, films, etc. If researchers publish their works via a publishing house, it is the researcher, and not the institution, that must sign the agreement with the publisher. Researchers also keep any royalties themselves. And if others want to use the researchers’ works, it usually requires permission from the researcher (and any publishers, etc., he may have assigned part of his copyright). On the other hand, it does not usually require permission from the institution.
When it comes to teaching materials and the like. some parts of the researchers’ copyrights will be assigned to the institution due to the employment relationship. Even though researchers do have copyright.
The premise that it is the researcher who owns the copyright is doubly challenged at some institutions. A number of research institutions want the researchers’ production to be made available on the Internet as part of open access. In some cases this may constitute an infringement on their copyright. You can read more about it here.
In addition, certain educational institutions want a share of the copyright of teaching material. Read more in this article on UBVA’s website.
Specifically for computer programs
Finally, the rule that the researcher retains the copyright, does not apply to computer programs. As regards computer programs, section 59 of the Danish Copyright Act stipulates that the copyright to computer programs made by employees automatically is assigned to the employer, unless otherwise agreed. However, there is controversy in the legal literature whether section 59 also applies to computer programs created by university researchers. But there is no case law that can shed light on the issue. You can read more about section 59 in Morten Rosenmeier’s guide to copyright, Ophavsret for begyndere – en bog til ikke jurister, chapter 7.K.2.
The concept of ‘computer program’ in the Danish Copyright Act refers to source and object code as well as the preparatory design material underlying the programs. By contrast, the concept of ‘computer program’ does not comprise the works that are processed on a computer, for example texts written in Word, digital videos and digital photographs. The concept of ‘computer program’ usually does not include what appears on a computer screen. You can read more in Morten Rosenmeier’s guide to copyright, Ophavsret for begyndere – en bog til ikke jurister, chapter 3.E.5.
The extent to which researchers’ neighbouring rights are assigned to institutions varies from neighbouring right to neighbouring right.
Researchers who give lectures, etc., can to some extent be regarded as performers under section 65 of the Danish Copyright Act. You can read more about section 65 in Morten Rosenmeier’s guide to copyright, Ophavsret for begyndere – en bog til ikke jurister, chapter 10.B. Under section 65, the right is assigned to the institution only in accordance with the same rules that apply to copyright of works, see above. This means that universities etc. only get part of the researchers’ rights under section 65, if deemed necessary for their ordinary course of business. Which it not usually is, as things stand at the moment.
According to section 70 of the Danish Copyright Act, the right to photographs lies with the researcher, but passes to the institution in accordance with the same rules that apply to actual works. See Morten Rosenmeier’s guide to copyright, Ophavsret for begyndere – en bog til ikke jurister, chapter 10.L.
The situation is the same with regard to the right to compilations under section 71. The right lies with the manufacturer, and the question is whether this is the researcher or the institution. Contact UBVA for further advice.
According to the Danish Copyright Act, the right to sound recordings and film footage under sections 66 and 67 of the Act belongs to the ‘producer’. In principle this may in some cases well be the university. It is among other things probably a question of who paid for the recording. If the institution has paid for it, for example, because it is performed by an e-learning or IT unit at the institution, it may indicate that the institution is the producer in the sense of section 67-67 . If, on the other hand, the researcher has been in charge of the recording, this may indicate that it is the researcher who has the rights. Please contact UBVA if you need advice on specific cases.