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Ownership of research results

Picture Ownership of research results

"Intellectual ownership" has had a strong position through the years. A closely related train of thought can be seen in Article 27.2 of the UN's Universal Declaration of Human Rights, according to which "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". On the other hand, the same declaration balances this by stating a right for everyone to enjoy the benefits of scientific progress and its applications. At the same time, Swedish research takes part in the stated strategic goal that the European Union is to be the most competitive knowledge-based community by 2010, which means that investment in research and technical development as well as stimulation of innovation, knowledge transfer and increased private investment in research and innovation are seen as essential in increasing European competitiveness.

The basic principle in Sweden is that the individual (as well as employed) researcher owns the result of his or her research. This applies to what one writes or draws as well as any technical invention. As regards literary or descriptive work, the person who has done the work has an exclusive right, according to the Act on copyright (SFS 1960:729). The rule is general, and thus does not apply specifically to researchers, but can yield to other agreements concerning the assignment or employment relationship. The employee thus often have to grant the employer a right to use such material that s/he was employed to create.

The exemption for teachers

The exemption for teachers, applicable in university and college situations, is in place with regard to patentable inventions. Researchers are exempted from otherwise enforceable principles in the 1949 law on the right to an employee's inventions (SFS 1949:345). As a starting point, a researcher therefore has full ownership rights to his or her research result of this kind, if another agreement has not been reached. According to custom, this exemption has been extended to cover copyright-protected material. But a particular college may reach agreements with the employees concerning for example rights to computer programs or the right to publish copyrighted material on the Internet. When collaborating with for example american scholars, one should note that they have no such exemption in place, and that patents there belong to the universities.

The Swedish government recently investigated the need for and consequences of an abolishment of the exemption for teachers. Abolishment would give a college the right to a teacher's invention against a reasonable compensation. The investigator also looked into universities' and colleges' obligation to support the commercialisation of research results and considered introducing an obligation on the part of teachers to report inventions to their employer. The investigator also examined the need for an expanded confidentiality regarding information in research. The results are: Nyttiggörande av högskoleuppfinningar SOU 2005:95 (Ministry of Education & Science) As a first consequence, a legislative proposal has been approved, resulting in an addition to the Secrecy Act of an expanded confidentiality concerning business conditions, inventions or research results that are involved in research collaborations between colleges and private actors. A presupposition is that the private actor's cooperation was dependent on the information not becoming public. Concerning other proposals in the inquiry, the government has said that it will not at present suggest any further actions.

The importance of publications

Normally, results of scientific work are published in monographs or articles, which constitute a fundamental part of scientific work. Through publication, results can be distributed to the rest of the scientific community and to society at large. Thereby, others with knowledge in the field have the opportunity to confirm the result or point out possible mistakes or errors, as well as build upon what the researcher has already done. Furthermore, such openness fosters valuable discussion regarding science's methods and consequences. The CUDOS norms have often served as a foundation for this reasoning, maintaining that there can be no exclusive rights to knowledge. This should not be interpreted as a denial of the fact that copyrights are applicable in scientific publication, they are. Copyright protects the manifest form that the creator has given his or her ideas, but not the ideas themselves. The CUDOS norms stresses that knowledge should be available to everyone. Ethical questions arise concerning publication of results as well as who owns these results. For questions about publication, click here.

Copyright

In short, the copyright act (SFS 1960:729) asserts that the person who has created a literary work has a copyright on it. This involves an exclusive sole right to access to the work as concerns copying the work or making it available for the public. Protection of the way the work is expressed (ideas can not be protected) exists automatically when a copyrightable work (a literary or artistic product, in a wide sense) is created. A literary work can be, for example, all types of descriptive work including computer programs, databases, technical drawings and maps. The law also contains a special 15-year protection for catalogues and similar products that represent the compilation of a large amount of information or a compilation that has required substantial investments.

Possession of a copyright means that others must have the author's permission for all uses save those concerning the occasional copy of limited parts of a work for private use. A basic condition for such private copying is that the work has been made public with the creator's approval. Computer programs in machine-readable format are never allowed to be copied, not even within the private sector. This also apply to private copying of digital collections in digital format. It is allowed, however, to quote works by others as long as the citation be made according to good practice and insofar the extent of the citation is in accordance with the purpose of quoting - as long as the source is acknowledged. In the same way it is allowed to paraphrase works by others. The use of citations and references is often in the interest of the cited author.

European standards

Community Law comprises a number of directives that harmonize parts of European copyright. The free movement of knowledge and innovation is regarded by the Commission as the "fifth freedom" (green paper Copyright in the knowledge economy). A directive on copyright in the information society was adopted by the EU during 2001, concerning, among other things, databases and the length of time a copyright is protected, which is normally set at 70 years after the author's year of death, see Directive 2006/116/EC on the term of protection of copyright and certain related rights. There is also an edicio princeps on a 25-year protection for someone who publishes older, currently unknown work for which the copyright has expired. All these directives have been put into practice in Sweden and are thus included in the Swedish copyright law.

Affiliated with the copyright law is the internationella upphovsrättsförordningen (international copyright ordinance) (SFS 1994:193), which explains the Swedish law's relation to earlier international agreements, including how foreign creators of works are protected in Sweden. The adjustments made in 2005 to copyright in the information society also included adjustments to WIPO's Copyright Treaty from 1996, which modernizes the fundamental international regulations concerning copyright and adapts the Berne Convention for the Protection of Literary and Artistic Works to the digital community.

Patents

Exclusive rights to technical inventions are regulated by the patent law (SFS 1967:837). The law provides for up to 20 years' protection for someone who applies for a patent in Sweden or for a European or international patent to be valid in Sweden. To maintain patent rights, one must pay yearly fees. The fundamental international regulation regarding questions on patents is to be found in the Paris Convention for the protection of industrial property. The European Patent Convention plays a decisive role in patenting in Europe; it makes possible a co-ordinated patenting procedure for 20 European countries at the European Patent Office in Munich. Notice that applications for research grants that include descriptions of an invention, if sent to a public financier, will become public documents and that a subsequent application for a patent then is not possible. For more information on patents, click here.

TRIPs

In recent years on an international plane, the 'TRIPs Agreement' (the Agreement on Trade-Related Aspects of Intellectual Property Rights, which came into force 1995) has appeared. The agreement stresses not only the importance of rules on exclusive rights, but also the need for such rules to be managed by the legal system ('enforcement') in a way that is satisfactory to the person possessing the right. The relation of TRIPs to public health is regulated by the Doha declaration.

For someone employed as a researcher by a multinational company, there is the OECD Declaration And Decisions On International Investment And Multinational Enterprises. According to OECD's rules, these companies shall "to the fullest extent practicable, adopt in the course of their business activities practices which permit the rapid diffusion of technologies with due regard to the protection of industrial and intellectual property rights", as well as "when granting licenses for the use of industrial property rights or when otherwise transferring technology, do so on reasonable terms and conditions".

Last updated: 2014-01-14

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