The concept of copyright differs from the research integrity concept of authorship

15.3.2018

The Finnish Copyright Act (404/1961) (with amendments) emphasises protection of the form of a work, not its content or idea as such.

In the Finnish Copyright Act, the original author is the person who has contributed to the shape of the work in an independent and original way (threshold of originality). Copyright emphasises protection of the form of a work, not its content or idea as such.

Additionally, the Copyright Act also protects products other than traditional works: even catalogues, tables and “simple” photographs with limited originality in line with specific criteria.

The importance of a written agreement in research projects, even at an early stage, must be emphasised.

In practice, original authorship under the Copyright Act can, however, largely always be agreed between those who created the creative work. A person who has provided technical assistance only is not in his capacity considered to be an actual author.  In cases of works made under collaboration it is highly recommended to agree about authorship (who is stated as the author) and also to agree the mutual shares of rights under copyright and management of these rights, as well as other details. The importance of a written agreement in research projects, even at an early stage, must be emphasised.

The author of a work is a natural person

The author of a written or artistic work may only be a human being, or what is termed a natural person. According to the Copyright Act a company or a community (what is termed a legal person), cannot be an author. Legal persons may be granted rights on the basis of an agreement, e.g. on the transfer of copyright, but a community may never, for example, be granted the moral rights of an original author, such as the right to be named as an author.

A computer cannot become a right holder either. The author of a work created with the help of a computer is generally considered to be the natural person, i.e. human being, who used the computer and the software. The computer and its software are the “artist’s brush”. Technical assistants, e.g. who gather materials or research background information, if they do not participate in creating the form or structure of the publication, are not authors in the official sense – because their input lacks originality (Copyright Act, section 1).

Copyright protects more than just works

Copyright protects the use of literary and artistic works that takes place in public. Scientific works are generally literary works. Computer programs are also considered to be literary works.

According to the Finnish Copyright Act, in addition to literary and artistic works the Act also protects some rights related to copyright, such as catalogues and databases and so-called simple (with little originality) photographs with slightly shallower rights and shorter protection periods compared with actual works (Copyright Act, section 1). The right holder of rights related to copyright, protected under Chapter 5 of the Copyright Act, is not termed an author. Scientific works often also contain products covered by rights related to copyright, such as catalogues and tables.

In the case of translations and adaptations, the copyright in their own version belongs to the translator or adaptor but they cannot use the work in public without asking the permission of the original author.

Actual authorship requires what is known as creative input

Any product at all cannot be protected by copyright as according to international agreements and national copyright law, only independent and original works can be granted protection (as works).

According to international agreements and national copyright law, only independent and original works can be granted protection (as works).

This requirement means that a work is an “intellectual creation” on the part of its author, in other words, the end result describes the author’s personality and that the work demonstrates the author’s free and creative solutions, choices.

In Finland, the Copyright Council, which interprets the originality criterion, considered in its statement TeN 2015:9 that online course material was, as a whole entity, a literary work. However, for example, in one case (TeN 2008:14), qualitative interviews were not considered to be sufficiently independent or original as to be works covered by section 1 of the Copyright Act.

Copyright differs from the research integrity concept of authorship

In copyright, protection of a work namely covers the form of the work, not its content. For example, research ideas as such are not covered by copyright. Anyone may write, for example, about the same section of law or the same disease. However, it is worth noting that although the idea cannot receive copyright protection, stealing the research idea may in some cases meet the criteria for research misconduct. According to the Finnish National Board on Research Integrity TENK's guidelines on responsible conduct of research and procedures for handling allegations of misconduct in Finland (the RCR guidelines), “misappropriation” refers to the unlawful presentation of another person’s research idea. Disputes regarding scientific authorship are often linked to a situation in which research findings or ideas have been published without the name of a participant who made a significant contribution to the work of research or the idea behind it.

It is worth noting that although the idea cannot receive copyright protection, stealing the research idea may in some cases meet the criteria for research misconduct.

There has been a desire to limit copyright protection to the form, so as not to impose barriers to free creation, particularly to the freedom of expression. After all, works are often created on the basis of earlier works, freely using these. Section 4, paragraph 2 of the Copyright Act states that “If a person, in free association with a work, has created a new and independent work, his copyright shall not be subject to the right in the original work.” Here, the free adaptation of the work, for example some forms of collage art, is generally freely permitted. The same logic can also be applied to the area of science; there is no desire to hinder scientific debate, at least not by means of copyright.

For example, in one case, the Supreme Court considered that a textbook on technology could be freely published although the textbook was published on the same subject as an earlier textbook and showed similarities with much of the structure and the content of the earlier work. However, the later work was independent and original compared with the earlier one. Both works had been influenced by foreign works on the same field. (KKO 1964 II 59, Strength of materials in reinforced steel structures)

However, actual adaptation of an article, such as translating it, may be free from copyright protection if it is done for private use. If an adaptation is produced with the aim of publishing the work, the appropriate permissions and references to the original authors are required. In terms of translated work, both the original author and the translator are the authors. In terms of copyright, they have full rights to this (moral rights to be regarded as authors) (Copyright Act, section 3). In terms of research integrity, it is important to be shown as the author, e.g. in one’s own list of publications or CV, in a correct and truthful manner. The concept of authorship in terms of research integrity can be considered in some respects to be looser or broader than that in terms of copyright.

What about assistants?

If a person has participated in creating the work and their input is of a kind other than demonstrating originality, such as gathering background material, creating non-original tables or statistics, they cannot be considered to be the actual authors in the sense of the Copyright Act (Copyright Act, section 1). However, they may be the holder of rights related to copyright (as the creator of a catalogue or database), where their permission may be required for publication of the catalogue or database. In this sense, copyright differs from the guidelines on responsible conduct of research. According to the recommendations on scientific authorship issued by TENK, the authors of co-publications can and should consider and decide whether this kind of input is sufficient for inclusion in the list of authors. Practices vary considerably in different scientific fields.

Who is generally to be considered an author

The Copyright Act (section 7) states the following regarding assumed authorship: “The person whose name or generally known pseudonym or pen name is indicated in the usual manner on the copies of a work or when the work is made available to the public, shall be deemed to be the author, unless otherwise demonstrated.”

The subject of Copyright Council statement TeN 2015:5: Fishing research report was a work as a whole under section 1 of the Copyright Act. The text contained plenty of factual information and also graphical presentations and statistical tables based on the information. Another report covering a later period of time addressed the same information as in the report written by the first author, who had requested a statement in the case, but was updated and included subsequent periods of time. Each report is considered to have its own author. The same facts can be used in different research, as long as this is done independently.

Many authors – problems?

When several people have participated in creating a literary or artistic work, it is useful to know which of them did what, and how much. Creative collaboration is rarely problem-free.

One issue that follows on from original authorship and needs to be resolved is the question of sharing copyright between authors (in other words shares) and another is their management (how decisions on usage are made). Generally, copyright is shared according to the head count, but if one of the participants has had more input into the work than others, they are entitled to receive a corresponding share of the copyright in the work.

Disputes regarding collaboration and copyright are not rare. Disputes may particularly arise regarding what each person’s share of the intellectual input or the creation of the work was (original authorship) but also regarding what each person’s share of the financial rights is in detail. Only the author or the author’s legal assignee (e.g. heir, publisher) may be considered entitled to submit demands in the capacity of a copyright holder.

Forms of collaboration regarding copyright are traditionally divided into several different types, which may be simultaneous or consecutive in nature. End results to be protected can be distinguished as follows:

  • works of compilation, whose authors are e.g. editors of newspapers or article collections and authors of material included in a work of compilation (Copyright Act, section 5).
  • combined works, in which several different works are combined (e.g. an illustrated book, an operetta, a musical, where the authors of each different type of work receive their own rights).
  • joint works, in which a work is created by several people in collaboration such that each contributor’s input cannot be distinguished from each other (e.g. scientific works and literary works in which shares cannot be distinguished from each other, jazz improvisation which represents simultaneous cooperation, etc.).

A problem that often arises in using a work originating from collaboration is that everyone’s consent is needed when the work is published. The Act states the following regarding works by multiple authors: “If a work has two or more authors whose contributions do not constitute independent works, the copyright shall belong to the authors jointly. However, each of them is entitled to bring an action for infringement.” (Copyright Act, section 6).

Collaboration agreements

TENK recommends that those participating in a co-authored scientific article or work agree on the authors and the order in which writers are to be named as early as in the initial stage of the research. This agreement on scientific authorship can then be used as a basis for agreeing copyright before first publication.

Most common forms of agreement on copyright include a publishing contract, in which an agreement is reached with one or more authors, for example on publishing a literary work and the details associated with this (Copyright Act, section 31). If each contributor has independently produced their own part of the whole work, for example a textbook, acknowledging the position of an author and sharing out copyrights between the contributors is usually easy. However, when the collaboration is so intense that contributions cannot easily be separated from each other, in other words as in cases of a work by multiple authors (Copyright Act, section 6), the situation is more difficult. There is a kind of “unsharable” co-ownership of the work, which may be difficult to manage. They may generally only decide on publication of the work together. In cases of more than one author, copyright is generally shared based on the head count unless agreed otherwise.

TENK recommends that those participating in a co-authored scientific article or work agree on the authors and the order in which writers are to be named as early as in the initial stage of the research.

The authors should always draw up a separate agreement regarding their mutual relationship (e.g. their shares). This may be necessary for co-authored works in particular but is also recommended in other cases.

A copyright agreement can be used to agree whose input is so significant (note the originality criterion) that they can be considered to be the author of the whole work or part of the work and can be stated as such. Mere technical assistance cannot usually be considered to count as authorship. However, by a joint agreement, people may largely be granted the position of an author but here there are grounds for limits. It is easier to indicate the financial rights of each party once the position in terms of copyright has first been determined.

An agreement can be used to agree on reprints and tasks associated with reprints (edits, additions, etc.) and on opportunities to be included as an author with regard to these, and other questions such as proportion of royalties. It is important to be aware of who did what (what kind of contributions?) for the work and to state this in the product itself as openly as possible.

Rainer Oesch, Professor of Commercial Law, University of Helsinki


Further information:

Copyright Act: http://www.finlex.fi/fi/laki/ajantasa/1961/19610404