INRIA - HAL-INRIA Open Archive - Your rights concerning your publications

2. Your rights concerning your publications

Are scientific publications protected?

What rights do authors have to their scientific publications?: • Moral rights, which are personal and non-transferable; • Economic rights, which are linked to the created work

Who is the beneficiary of rights to scientific publications?: • Researchers; • Civil servants

What precautions should I take before publishing?: • Avoiding counterfeiting; • Avoiding precedence on a patent application; • Respecting moral rights; • Avoiding libel
: • Avoiding disclosure of confidential information

Are scientific publications protected?

Scientific publications (articles, research reports, theses, papers, presentations during symposiums, courses, activity reports, scientific evaluation reports) are protected by copyright. The author has a moral right and property rights.

A scientific publication is protected by copyright with two cumulative conditions:

it must be formalized (even for a rough draft of scientific article, or a draft report).
The simple idea of writing an article on a topic (even a very precise topic) cannot be protected by copyright; however, even an unfinished article is protected.
it must be original.
Originality does not mean the publication must be innovative. It also concerns the creative work in which the author has added his or her "stamp", on a subject that has already been discussed in scientific literature (e.g. a simple compilation of articles is not protected, but a constructed, critical analysis of those articles is protected). The scientific quality of the publication is not a criterion for determining its originality.

What rights to authors do have to their scientific publications?

French intellectual property law grants two types of rights to authors:

•Moral rights, which are personal and non-transferable

These rights are attached to the author as a person and are non-transferable. They are transferred to the researcher's heirs and may be exercised without any time limits.

They comprise:

the right for the author to determine whether or not to attach his or her name to the publication, noting that the researcher will cite INRIA and INRIA will cite the researcher;
the right for the researcher to oppose the denaturing of his or her publication by a third party;
the right to decide whether or not to publish;
the right to modify or edit the created work or withdraw the publication from circulation.

•Economic rights, which are linked to the created work

These rights enable authors to make us of their creations. They may be exercised throughout the researcher's lifetime and by his or her heirs for 70 years after his or her death.

TThere are two types of economic rights:

the right to reproduce the publication - i.e. the right to attach it to a medium
the right to represent the publication - i.e. the right to communicate it to an audience

These economic rights may be transferred either with our without pay, fully or partially, exclusively or non-exclusively, in particular in a publishing license.
The personal and written consent of the author of an intellectual creation is a pre-requisite for any intellectual property transfer agreement.

Who is the beneficiary of rights to scientific publications?

• Researchers

Because they are independent from their employers, researchers own all intellectual economic rights to their publications.

Nevertheless, INRIA can freely use activity reports and evaluation reports written by INRIA researchers, as these reports directly concern INRIA's scientific activities and are written at INRIA's request, pursuant to its statutory obligations. INRIA publishes these reports with a mention of the author's or authors' name(s).

When a publication is written by several researchers, they are considered to be co-authors of the publication, and each has rights to the part he or she wrote. All of the authors must give their approval for the publication to be distributed in its entirety.

•Civil servants

According to the new French legal framework for copyrights held by civil servants for their intellectual creations, civil servants now own the intellectual economic rights to their created works. These rights are nevertheless limited to the benefits of public service interests.
Thus, concerning the moral rights of civil servants to their created works:

civil servants' rights to communicate their creation to the public are limited by the statutory rules that apply to them
civil servants cannot oppose the modification of their creations by their hierarchical authority, unless the modification is prejudicial to their honor or reputation
civil servants cannot exercise their rights to refusal and withdrawal of their publications without prior consent from their hierarchical authority

There are 2 possible cases concerning the use rights to a work created by civil servants

Non-commercial use of works created by civil servants

The French government is granted a license for the non-commercial exploitation of work created by one of its civil servants, insofar as the work was created in the course of the civil servant's professional duties or according to instructions he or her was given, and provided that the transfer is necessary to the implementation of a service public mission.

Commercial use of works created by civil servants

The French government is granted a pre-emptive right for commercial use of work created by a civil servant, unless the work is rooted in scientific research activities carried out within the framework of a public-private research agreement. In this case, the contractual clauses apply.

• Activity reports and evaluation reports written by INRIA researchers

These reports directly concern INRIA's scientific activities, and are written at INRIA's request. They belong to INRIA, which publishes them while mentioning the name of the researcher(s) who wrote the report. This principle applies to INRIA but it may be different from the practices of your organization, so please contact the appropriate department. They will tell you the rules to follow concerning the publication of activity and evaluation reports.

What precautions should I take before publishing?

Besides the scientific or technical quality, there are four main pitfalls to be avoided.

• Avoiding counterfeiting

Counterfeiting involves reproducing or representing with varying degrees of skill, all or part of an existing publication without having received the author's authorization.
What is the risk? The author of the initial publication may request to have the publication immediately withdrawn and/or claim damages and interest and/or institute proceedings in a criminal court.

How can I avoid it?
By requesting (prior to publication) the authorization from the researchers who co-authored the article or from the authors of the text or work included in the publication. The request is made in writing, specifying what is included, the medium planned for publication, the reason for publishing, and the intended audience. The response must also be in writing. An exchange of specific e-mail messages may be sufficient.

And the citation?
You may cite another author without requesting his or her permission, as long as the citation is short and specifies the existing scientific work for educational purposes.

• Avoiding precedence on a patent application

When a scientific publication discusses a process or an invention for which a patent application has been filed by INRIA or one of its partners, you must ensure that the publication does not reveal any information included in the patent application (i.e. information for which protection is requested). As information revealed before patent protection is granted is no longer considered to be innovative, that information would not be protected by the patent.

What is the risk?
The partner or INRIA may institute public liability proceedings against the researcher. The partner may also institute proceedings for unfair competition.

How can I avoid it?
By checking the non-disclosure terms included in the partnership agreement that led to the patented result. If necessary, have a competent department explain the clauses of the agreement (or a lawyer or correspondent who handles industrial relations), and verify that the patent application procedure has been completed. If in doubt, it is safer not to reveal information concerning research or applications of work before obtaining answers to all these questions.

• Respecting moral rights

When the scientific publication refers to previous work, its author(s) must ensure that the moral rights of their peers are respected.

What is the risk?
The author of the reference publication may institute public liability proceedings against the researcher.

How can I avoid it?
By citing the name of the author(s) of the reference work, while respecting the context in which that work was undertaken and the author(s)' objectives for the reference publication. You must not modify the nature of the reference work. Do not publish or distribute a pre-publication that the author does not want to have revealed.

• Avoiding libel

Authors must make sure that their publications do not infringe on the consideration of a person or a constituent body (organization, scientific circle, etc.)

What is the risk?
The libeled individual may institute criminal and/or public liability proceedings against the researcher.

How can I avoid it?
As libel must be intentional, it is easy to avoid.

•Avoiding disclosure of confidential information

Authors must make sure that they do not disclose confidential information, such as patentable research results or know-how, when publishing.

What is the risk?
The owner of the confidential information who suffered damage may launch a civil or even a criminal claim against the author responsible for disclosing confidential material.

How can I avoid it?
Authors must check the status of the material they used when writing their scientific article.