What is protected by copyright law?
Basically, copyright protects two things. First, it protects literary and artistic works, such as books, articles, films, photographs, pictures, drawings, computer programs, drama and music. Such works are subject to copyright protection for 70 years after the death of the author. You can obtain this protection only if the work is original, i.e. 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 require protection. These include creative artists’ performance of works, sound recordings, films and photographs, whether original or not, as well as TV shows, etc. These are subject to what is known as neighbouring rights protection. It is not a requirement that the product is original in order to obtain this protection, and the duration of the protection is substantially shorter than that of 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?
In relation to actual works protected under chapter 1 and onwards of the Danish Copyright Act, copyright entails that the author obtains certain “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 you then turn the digital medium into a kind of copy. It also constitutes copying to make a representation of a work, for example by 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. If, for example, 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. Playing music or 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.
Moral rights (section 3 of the Danish Copyright Act) imply partly a right of paternity (section 3(1)) and partly a right of integrity (section 3(2)). Right of paternity means that unless the author waives the right, or ‘good practice’ dictates otherwise, you are obliged to identify the author when you are legally entitled to make copies of the work or use it in public. Right of integrity means that even in cases where you are allowed to make use of a work, you 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 impose various conditions for granting permission, including demanding payment 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 actual works – not their underlying ideas, theories, ‘isms’, etc. So if you are writing a literary work, you will not as a rule have the sole and exclusive right to use the abstract ideas, etc., contained in it. However, it can sometimes be problematic from a scientific-ethical point of view to copy the ideas of a work, cf. the article on plagiarism.
Is research protected by copyright?
Research often results in the production of something that can be protected by copyright.
Researchers’ texts can be protected as literary works. This applies to articles, PhD theses and dissertations, textbooks, contributions to books, working papers, oral presentations and lectures at conferences etc., as well as the PowerPoint slides that accompany oral lectures, etc.
Images that the researchers create , such as graphs, figures, diagrams, drawings, posters, photographs, etc., may also be protected.
Audio and video recordings, for example of interviewees, etc., may also be protected. 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 this is not the case, they will be subject to neighbouring rights protection under chapter 5 of the Danish Copyright Act, more specifically sections 66 and 67. Audio and video recordings that are an expression of originality are subject to copyright as well as neighbouring rights protection. Audio and video recordings that do not reflect originality are covered by 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, copyright can also apply to compilations, including anthologies, 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 in the same way as an original work under 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
In relation to copyrighted works other than computer programs, the employer, unless otherwise agreed with the employee, will only be entitled to those parts of the employee’s copyright which were necessary for the employer’s ordinary course of business at the time when the employee performed the work.
However, it does not normally fall within the ordinary course of business at universities and other educational institutions to exploit the works of researchers. Accordingly, researchers will as a rule retain copyright to their books, articles, images, films, etc., if they publish their works via a publishing house, as it is the researcher, and not the institution, who signs the agreement with the publisher. Researchers may also in this case keep any royalties themselves, and if others wish to use the researchers’ works, this will usually require the permission of the researcher (and of any publishers, etc., to whom the researcher may have assigned part of the copyright). On the other hand, this does not usually require the permission of the institution.
In relation 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 the researchers hold the copyright.
The premise that it is the researcher who owns the copyright is doubly challenged at some institutions. A number of research institutions wish the production of researchers to be made available on the Internet as part of open access. In some cases this may constitute an infringement of their copyright. You can read more about it here.
Furthermore, certain educational institutions wish to receive a share in the copyright of teaching materials. Read more in this article on the UBVA’s website.
Specifically for computer programs
Finally, the rule that the researcher retains the copyright does not apply to computer programs. Section 59 of the Danish Copyright Act stipulates that the copyright to computer programs made by employees is automatically assigned to the employer unless otherwise agreed. However, there is disagreement in the legal literature as to whether section 59 also applies to computer programs created by university researchers, but there is as yet no case law that can shed light on the issue. You can read more about this in 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 embrace works that are processed on a computer, such as texts written in Word, digital videos or digital photographs. The concept of ‘computer program’ does not usually encompass 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., may 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 of the Act, the right is transferred to the institution only in accordance with the same rules that apply to the copyright of works, see above. This means that universities, etc., can only lay claim to part of the researchers’ rights under section 65 if this is deemed necessary for their ordinary course of business – which, as the situation is at the present time, is not normally the case.
Under section 70 of the Danish Copyright Act, the copyright 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 copyright to compilations under section 71. The copyright lies with the producer, and the question is whether this is the researcher or the institution. Contact the UBVA for further advice.
Under the Danish Copyright Act, the right to audio and video recordings under sections 66 and 67 of the Act belongs to the ‘producer’. In principle this may well in some cases be the university. It is among other things probably a question of who paid for the recording: If the institution paid for it, for example because it is performed by an e-learning or IT unit at the institution, this may indicate that the institution is the producer in the sense of sections 66- 67. If, on the other hand, the researcher has been in charge of the recording, this may indicate that it is the researcher who holds the rights. Please contact UBVA if you need advice on specific cases.