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Intellectual Property and Copyright
While often used interchangeably, "Intellectual Property" and "Copyright" are not the same. Intellectual property is the broad umbrella term that may include copyright, patents, or trademarks, which are specific (and restrictive) forms of intellectual property.
- Intellectual Property refers to any form of intellectual creation. Data is the intellectual property of the researcher, or possibly of their funder or supporting institution. Data is intellectual property, but that does not mean it cannot be used by other researchers (with appropriate attribution).
- Intellectual Property should not be conflated with Copyright, Patents, or Trademarks, which are specific forms of Intellectual Property that may prevent others from using the data.
- Example: if an intellectual property holder makes their data freely and publicly accessible on GitHub, but does not pursue a copyright, the data is still their intellectual property.
- Conversely, if a researcher signs over their copyrighted work to a 3rd party, it becomes the 3rd party's intellectual property. The original author or creator is not always the intellectual property owner, especially if they have sold or transferred the copyright.
- Copyright is a specific form of intellectual property that restricts use by granting exclusive legal rights to the copyright holder. Copyright material cannot be used without authorization of the copyright holder, though there may be instances in which copyrighted material might fall within "Fair Use." For more information, consult http://copyright.gov/circs/circ01.pdf
- Data cannot be subject to copyright. Data is a fact, which cannot be placed under copyright.
- What can a researcher copyright? While data is a fact that cannot be subject to copyright, the presentation, collection methods, or other unique aspects can be placed within copyright (consult "Data Copyright" section).
- Example: Individual figures, findings, or statistics created by modelling software cannot be copyrighted, but the computer model software may be copyrighted.
- Summary: Data is consider a fact, which cannot be subject to copyright. Data can, however, be claimed as intellectual property even without a copyright. In practice, this means researchers cannot copyright data, but can require other researchers to give them credit for the data collection or creation. Aspects of data collection and presentation, however, may be subject to copyright, at which point it becomes the intellectual property of the copyright holder.
Please note that Portland State University has specific guidelines on copyright and Intellectual Property, which are outlined below.
Intellectual Property at PSU
INNOVATION & INTELLECTUAL PROPERTY
"Innovation and Intellectual Property is responsible for protecting and managing patentable and copyrighted works developed in the course of PSU research activities. We serve PSU faculty, students, and staff by promoting the use and increasing the impact of innovations developed in the course of research activities. By working with IIP, PSU innovators create lasting impacts on our world. In many cases, copyright licensing revenue supports the personnel and other costs necessary to maintain a program that provides long-term value to our partners. This work promotes ongoing program sustainability, allowing the innovation to be part of the future of PSU’s impact. The impact of patentable innovations can take several forms. PSU will work with the inventors to determine if the invention can be licensed or could result in an industry partnership to further develop the technology. In some cases, a startup company is the best opportunity to take the innovation to market, while also creating additional impacts of jobs and sales revenue coming back to the State of Oregon."
IP Policies & Guidelines
"Currently, PSU's intellectual property policies remain the same as those that were used by all Oregon University System schools. The creation of a PSU IP policy is in the early stages, and until it is adopted by PSU remains subject to two documents that defined IP policy for OUS: Oregon Administrative Rule (OAR) 580-43 and OUS Internal Management Directive (IMD) 6.2. Innovation & Intellectual Property is the designated office at PSU responsible for interpreting and administering the policies and procedures in OAR 580-43 and IMD 6.2. Within this guide to the policies and procedures, each page will begin with a simple explanation or main points of the guide in italics, followed by more detailed explanations of how the policies are administered and interpreted by the office of Innovation & Intellectual Property. We’ll refer to and quote from the OAR and IMD throughout. We are most often asked questions concerning the ownership and disclosure requirements of inventions and copyright works made by PSU employees. As a quick start to this guide, please see our simplified charts concerning ownership and disclosure of patents and copyright works."
WORKING WITH INNOVATION & INTELLECTUAL PROPERTY
"In general, the process of working with IIP to use intellectual property as a tool for broadening the impact of your research results begins with a conversation about your work. Sometimes IIP will seek out researchers with interesting projects and sometimes researchers will find IIP with a particular question. We love learning about and discussing your projects, and we want to help answer the question, 'What can the tool of intellectual property do for you?' If you are new to working with our office, we encourage you to talk with us before filling out any forms to begin the more formal process."
Data are considered discoverable "Facts," not original works in themselves, and are thus not copyrightable. The methods of compilation, analysis, annotation arrangement, or selection of data, which may be novel, unique, or proprietary, can be protected under copyright. As an illustrative example, individual pieces of data in a table cannot be protected under copyright, but the table itself can be copyrighted. Patents may similarly be applied to the analysis, compilation, or arrangement of data if it leads to new inventions.
Database and Collections of Information Misappropriation Act of 2003
"In order to qualify, they must exhibit some modicum of creativity in the selection, arrangement, or coordination of the data. The protection is thin in that only the creative elements (selection, arrangement, or coordination of data) are protected by copyright. Explanatory materials such as introductions or footnotes to databases may also be copyrightable. But in no case is the data itself (as distinguished from its selection, coordination or arrangement) copyrightable."
Cornell University, Introduction to intellectual property rights in data management
"Data that is factual has no copyright protection under U.S. law; it is not possible to copyright facts. Not all data is in the public domain. A project might, for example, use copyrighted photographs; the photographs are part of the project’s “data.” In many cases, the data in a data management system as well as the metadata describing that data will be factual, and hence not protected by copyright. A database, on the other hand, can have a thin layer of copyright protection. Deciding what data needs to be included in a database, how to organize the data, and how to relate different data elements are all creative decisions that may receive copyright protection."
PSU Copyright Policy
University Copyright Policy
"The Portland State University Copyright Guide serves as a resource for the PSU community. The materials available in the Portland State University Copyright Guide provide simple overviews of key issues in copyright law. Copyright law can be complex and this guide is not intended to provide legal advice. It provides a summary of United States copyright laws as those laws relate to the use of copyright protected works and provides suggestions on how to analyze proposed uses of copyrighted materials to facilitate the work of students, faculty, and staff. Portland State students, faculty, and staff members are responsible for making a good faith determination of whether an intended use falls within specific or fair use exemptions in copyright law. When permission to use copyright material is required, that permission must be obtained prior to use of the copyrighted materials."
PSU Library Copyright Guide
"Welcome to the PSU Copyright Guide. This guide is intended to provide explanatory information about copyright, and guidance in determining if the use you would like to make of copyrighted material is allowed by law or can be considered via exemptions in the law."
Portland State University Copyright Ownership Policy
The University's policy statement adopted May 19, 2020.