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PROPIETAT INTEL·LECTUAL

Industrial and intellectual property in academic works at the UPC

Rights related to industrial and intellectual property with respect to academic works produced by UPC students may only be exercised in accordance with the provisions of relevant regulations and legislation in force.
 

Industrial property Comprises a series of exclusive rights that protect both the innovative activity required to develop new products, processes or designs, and commercial activity, by exclusively identifying products and services offered on the market. [Multimedia Patent and Trademark Guide]
Intellectual property Comprises personal and property rights that confer on the author full control over and the exclusive right to exploit a work, without any limitations other than those laid down in the Act. [Art. 2, Royal Legislative Decree 1/1996, of 12 April, approving the Intellectual Property Act]

As established by the Regulations on industrial and intellectual property rights of the UPC:
 

Results Technology, knowledge, know-how, processes and creations that have been generated within the framework of the academic, teaching and research activities of the UPC.
Invention Result susceptible to protection for industrial property rights (among others: patents, industrial designs, utility models, etc.).
Work Result susceptible to protection for intellectual property rights (including, among others, the software).

Intellectual property law governs rights over works, as opposed to inventions and other research results that can be protected by patents, confidentiality agreements or other industrial property rights.
 

  • When making an invention derived from the contents of an academic work, it must be subject to confidentiality until the corresponding invention is protected.

  • The final degree projects (TFG), the final master projects (PFM), the doctoral theses and other academic works are works subject to intellectual property, that is, copyright.

  • Copyright is grouped mainly in: moral rights and exploitation rights.

 

Moral rights A set of unwaivable and inalienable rights that include the right to be recognised as the author of his or her work and the right to prevent any modification thereof that might be detrimental to his or her legitimate interests.
Exploitation rights

The author of a work is exclusively entitled to exercise the exploitation rights, which, unlike moral rights, may be transferred to third parties (on an exclusive or non-exclusive basis). Therefore, the work of another author may only be exploited if the consent of the author and/or holder of rights has been obtained, or if one of the exceptions set out in the Intellectual Property Act applies. These rights are:

  • Right of reproduction: copying of the work (photocopying, scanning, etc.)
  • Right of distribution: distribution of physical copies of the work (loans, rentals, distribution of copies, etc.)
  • Right of public communication: dissemination of works without distribution of physical copies (publication on websites or intranets, film screenings or presentations, broadcasting of musical works, etc.)
  • Right to make derivative works: creation of derivative works (translations, children’s adaptations, etc.)

    As established by the Regulations on industrial and intellectual property rights of the UPC:
     

    Industrial property
    • The UPC students hold the ownership and exploitation rights of the Inventions they have developed within the framework of an academic activity.
    • In the case of inventions made by the students of the UPC jointly with the UPC staff, the ownership and exploitation rights of the invention correspond to the students of the UPC and the University, in the proportion that corresponds to them according to the contribution significant and original intellectual of each of the inventors in its development.
    • In both cases, the UPC has reserved a right of use for academic, teaching and research activities on inventions, although the inventor may revoke it at any time by submitting a written request to the UPC, in which it will expose the Reasonable grounds for which he decides to revoke this right [art. 4.1.1.].
    Intellectual property (copyright)
    • UPC students are the authorship and ownership and exploitation rights of the works they have developed within the framework of an academic activity.
    • In the case of works resulting from works developed by UPC students together with UPC staff, the authorship corresponds to both UPC students and UPC staff, and the ownership of exploitation rights corresponds to students of the UPC and the University, in the proportion that corresponds to them according to the significant and original intellectual contribution of each of the authors in their development.
    • In both cases, the UPC has reserved a right of use for academic, teaching and research activities on the work, although the author can revoke it at any time by submitting a written request to the UPC, in which he will expose the Reasonable grounds for which he decides to revoke this right [art. 4.1.2].
    Cession of rights
    • The students of the UPC and the university can agree on the assignment of the exploitation rights on the results of the students in favor of the UPC, so that the university is in charge of the tasks of protection and exploitation.
    • In this case, the students of the UPC and the university will sign an assignment agreement, which will establish the compensation that corresponds to the students of the UPC [art. 4.2].
    Agreement of co-ownership
    • In the case of co-ownership between the students of the UPC and the university, both parties must sign a co-ownership agreement, in which the protection and exploitation of the results regime will be established, and the rights and obligations corresponding to each party, taking into account their participation in the results [art. 4.3].

    On the other hand, as detailed in the following articles of the Regulations on the rights of industrial and intellectual property of the UPC, the exploitation of works subject to agreements with companies is subject to the clauses that determine the confidentiality and / or ownership of industrial and intellectual property over the results.

     

    Agreement or contract
    • The development of a research project by members of the university community within the framework of its activity at the UPC, in collaboration or on behalf of third parties, regardless of the branch of knowledge to which it refers, requires the subscription of the corresponding R & D agreement, collaboration agreement or contract for the commissioning of scientific, technical or artistic work or technical support, as applicable, under the terms stipulated by the internal UPC regulations that are applicable [art. 6.1.]
    Ownership of rights
    • The regime of ownership of the rights over the results obtained in the framework of the execution of the corresponding agreement or contract, as well as the distribution of exploitation rights that derive, must be foreseen in the agreement or contract [art. 6.2].
    • In carrying out these activities and negotiating the agreements or contracts, the rights that may correspond to the UPC under these Regulations [art. 6.3]

    Some important aspects to remember in relation to the aforementioned articles of the UPC regulations are:
     

    Industrial property
    • If the student wants to create an invention derived from his work, he should communicate to the university his interest in the possible protection of it. This communication should be prior to the public defense of the work, which will ensure the confidentiality of its content by the author or any other person (for example, the members of the evaluation board).
    • We must bear in mind that confidentiality is essential to apply for a patent for a future invention, "a document that guarantees the enjoyment of the industrial property of an invention to the beneficiary who registers it and who grants it exclusive use rights for a specific period" [Cercaterm]
    Intellectual property (copyright)
    • The authors of the academic works owned by the intellectual property are those who can reproduce, distribute, publicly communicate, transform and / or assign exploitation rights to third parties. However, any act of exploitation can only be carried out as long as these requirements are met:
       
      • The work does not infringe the intellectual property rights of third parties.
      • There is no agreement or contract signed with third parties whose conditions prevent exploitation. For example, this would be the case of a TFG object of confidentiality because it is required by the company where it was made, which is detailed in the corresponding agreement.

     

    As established by the Regulations on industrial and intellectual property rights of the UPC:
     

    Industrial and intellectual property
    • The authorship of a doctoral thesis corresponds to the Doctorate or PhD student. In accordance with Royal Decree 99/2011, of January 28, which regulates the official doctoral education, the doctoral thesis, once approved, is published by the UPC in an open electronic format in an institutional repository, without the author can object, except in exceptional circumstances provided in the applicable regulations.
    • If the doctoral thesis has developed a new result, the exploitation rights on this result correspond to the PhD student, unless the UPC staff has actively contributed to generating it, in which case the UPC has the right to participate in the exploitation rights of the result in the proportion that corresponds according to the participation of its personnel in obtaining the result.
    • If the PhD student develops these activities in the framework of an employment relationship with the UPC, the regime applicable to the results is what is foreseen for the results generated by the UPC staff (article 3) [art. 7.4]
    Agreements with third parties
    • PhD students and industrial PhD students. The agreements that UPC subscribes with companies or collaborating entities and the doctoral student to carry out industrial doctorate projects in the company or collaborating entity must expressly provide for the system of attribution of the results that may be generated [art. 7.5]

    The following provisions are set out in the UPC’s Academic Regulations for Doctoral Studies in the sections indicated:

     

    Protection process
    • In exceptional circumstances—if, for example, companies have been involved in developing a thesis, confidentiality agreements have been entered into with companies or there is the possibility that the content of a thesis may lead to a patent—a doctoral candidate may request a specific procedure to ensure that the relevant information is not made public in the thesis defence or when the thesis is deposited in institutional repositories.
       
    • The doctoral candidate must expressly request that the academic committee of the programme apply this procedure, before the deposit and in the manner stipulated by the committee [Section 10.3].
       
    • In particular cases, the academic committee of the doctoral programme may take measures to ensure that aspects of the thesis liable to be patented are not disclosed during the defence, as laid out in Section 10.3 [Section 15.1].
    Institutional deposit
    • To enhance the visibility of theses and increase the citation impact of their authors, once a doctoral thesis has received a positive assessment it will be published in the UPC’s open-access repository for doctoral theses (UPCommons) and in the repository for Catalan universities (TDR).
    • If the thesis contains any confidential material, or if the author has signed a contract or undertaking with a publication to which he or she is transferring his or her copyright, it will be published in the TDR repository when the thesis protection or copyright transfer process ends [Section 15.4].

    Some important aspects to remember in relation to the aforementioned articles of the UPC regulations are:
     

    Industrial property
    • To give effect to this provision, when a doctoral candidate has entered into a confidentiality agreement with a company in relation to his or her thesis, or patents related to its content may be generated, he or she must submit documents certifying that this is the case to the academic committee of the corresponding doctoral programme, as detailed on the website of the UPC’s Doctoral School.
    Intellectual property (copyright)
    • Given that the author of the thesis remains the exclusive owner of all associated rights, only he or she may perform any other act of exploitation or transfer of rights—for example, by translating the thesis, publishing it for sale or granting a Creative Commons licence.
       
    • The University reserves the non-exclusive right to publicly communicate the thesis by depositing it in the UPCommons and TDX institutional repositories. Notwithstanding the UPC’s (non-exclusive) right to publicly communicate theses, they shall not be disseminated in the following cases:
       
      • The work infringes the intellectual property rights of one or more third parties.
      • A patent application may be filed based on the content of the thesis.
      • Confidentiality agreements with third parties are in force (e.g. with companies or publishers)

    Although exploitation rights in a work (reproduction, distribution, public communication and making of derivative works) are originally vested in the author, he or she may transfer these rights to a third party on an exclusive or non-exclusive basis, provided there are no intellectual property issues that prevent this.
     

    Non-exclusive transfers

    permit the receiving party (assignee) to use the work in accordance with the terms of the assignment agreement and concurrently with other assignees and the assignor. The rights of assignees are non-transferable.
    Exclusive assignment agreements give the receiving party (assignee) the right to exploit the work on an exclusive basis (i.e. to the exclusion of the owner and all others), and, unless otherwise agreed, the right to grant non-exclusive authorisations to third parties.
    • When a student who is the author of an academic work disseminates his or her work via UPCommons, he or she is transferring his or her right to publicly communicate the work to the University on a non-exclusive basis.

    • This means the University is only authorised to publish the work in its own repositories. The student remains the exclusive owner of the rights and as such may perform any other act of exploitation, or enter into other agreements involving the transfer of rights. For example, only the author of a work can have it translated, publish it for sale or grant a Creative Commons licence.

    In order to facilitate the use of the academic works deposited in UPCommons or TDX, students can grant "copyleft" type licensing. In this way, users know what specific uses they can do without having to obtain their authorization. For example, some licenses are widely used Creative Commons (CC):
     

    WITH CC license

    The author allows specific uses of his work to be made, more permissive than those allowed by the Intellectual property law:

    • All CC licenses allow users to reproduce, distribute and publicly communicate the works.
    • Depending on the license chosen, the author can also allow the commercialization and/or creation of derivative works (translations, etc.).
    • The user always mentions and recognizes the authorship, as well as providing a link to the original CC license in case the work is reused or disseminated.
    NO CC license

    The works ONLY can be used according to what the Intellectual property law:

    • A reservation of rights is established for which, without prejudice to existing legal exemptions (such as private copying or appointment right), reproduction, distribution, public communication or transformation of the work is prohibited.
    • The user of the work that wants to make any use not contemplated as a legal exemption, should contact the author and / or owner of the rights to request permission.

    More information

        

    If an author wishes to publish a work that has already been deposited in a repository, problems may arise only if the party to whom rights are transferred (i.e. the publisher) is unwilling to accept the previous dissemination of the original work (preprint). However, it is important to bear in mind the following points:

    • Many publishers and academic journals accept the deposit of preprints in institutional repositories.
    • In any case, the publication of a work in the University’s institutional repository makes it more accessible and internationally visible. This is demonstrated by the fact that many companies and researchers seek to contact students after their work has been added to the repository. For example, some publishers have shown an interest in publishing book versions of works after viewing them in the repository.

    If the publication of a work goes ahead, the copyright transfer agreement or the publisher’s publication rules should specify whether the transfer of rights is exclusive, what rights the author is transferring and the duration and geographic scope of the agreement.

    If the transfer agreement or publication rules do not specify these details, the transfer of rights shall be limited to five years and shall apply in the country in which the transfer is made, and the forms of exploitation shall be those which are essential for the performance of the agreement.

    Authors should take steps to ensure that a publisher is trustworthy before accepting an offer to publish, and seek legal advice before signing any kind of publishing contract.

    There are some publishers, described as “predatory”, which engage in practices that are highly dubious from an ethical perspective and in terms of scientific rigour:

    • Publishers of this kind contact an author (usually by email) and offer to publish his or her work free of charge, but publication is based on a print-on-demand system that simply involves printing copies of the academic works, without any kind of review, analysis or other editing work being done by the publisher.
    • Purchasers think they are buying a published book. In fact, what they get is merely a copy of an academic work with a cover added. Moreover, in many cases, the same work can be found in an open-access repository or on a university website.
    • The work enters the publishing circuit, and the author will not receive any payment unless a minimum number of printed copies are ordered. In short, the publisher does no work and takes no financial risk.
    • Publications of this kind do not provide the recognition or prestige authors seek; in fact, they have just the opposite effect.
    • If an author transfers the exploitation rights of his or her work to a predatory publisher on an exclusive basis, he or she will not be able to publish the work through other, prestigious publishers (who would provide services of editorial and scientific value).

    You can use the following links to access more information on the kind of practices predatory publishers engage in:
     

    In accordance with the Order of the Minister of Culture of October 15, 1992, which approves the general criteria for evaluation and selection of documentation and the corresponding proposal model, "documents that contain significant data on science and technology must be kept. Within this assumption the final studies of the University are contemplated".

    On the other hand, Law 10/2001, of 13 July, on Archives and Documents provides that public documents produced by administrative bodies must be conserved and made accessible, provided steps are taken to ensure that legally protected data is not made public.

    Therefore:

    • Works that cannot be consulted online via the repository may be consulted in the depository library or at a school archive (if the library does not hold a copy of the work in its collection).
    • Works whose content may affect the confidentiality or industrial property rights of third parties will not be made available for public consultation.

    Darrera actualització: 05/09/2019