Research activities often result in the creation of works protected by copyright. They are traditionally published on scientific journals and research data platforms with closed access. However, since the late 20th century, with the digitization of research, platforms for sharing research data, results, and publications have become increasingly widespread and there is growing support for making these materials accessible to the public and reusable free from restrictions, particularly when the research has been publicly funded. This movement is based both on the principle that publicly funded research results should be made available to the public and on the belief that unrestricted sharing of research can contribute to its further development and sustainable use.
Open science encompasses several practices, including Open Access to scholarly publications, Open Research Data, Open Educational Resources, and Free and Open Source Software. Important references in this area include the Berlin Declaration on Open Access and the UNESCO Recommendation on Open Science, among others.
According to the Open Definition, content can be considered “open” when it is freely accessible to the public and the public is permitted to reuse it free from restrictions. This includes the right to share, modify, and share modified or derivative works, for any purpose, including commercial purposes.
When a work is created and meets the requirements for copyright protection, the rights holder has the right to decide whether and how others may use the work, except in the limited cases where copyright law allows certain uses, subject to specific conditions, such as quotation or use for educational purposes.
To give the public advance permission to use a copyrighted work without having to seek individual authorisation from the rights holder, the rights holder must apply a licence that permits such uses. Open licences, such as Creative Commons CC0, CC BY, and CC BY-SA, can be used for this purpose. The applicable licence specifies which uses are permitted and under what conditions. For example, a licence may require users to acknowledge the author, provide the source, and indicate the applicable licence (BY, the attribution requirement of the Creative Commons licences). By displaying the licence alongside the work, potential users can understand in advance how they are permitted to reuse it.
In 2018, cOAlition S, an initiative dedicated to making full and immediate Open Access to research publications a reality, developed the Rights Retention Strategy. The strategy aims to allow researchers to submit their manuscripts to the journal of their choice, including subscription-based journals, while remaining compliant with Open Access requirements. To achieve this, it recommends that researchers retain their copyright rather than transferring it to publishers as a condition of publication. This enables them to make at least their accepted manuscripts openly available under an open licence, in particular the CC BY licence, in accordance with Open Access requirements.
It is important to note that copyright gives rights holders considerable flexibility in deciding which licence to apply to their work, depending on their needs and objectives. For example, in research involving visual data, certain circumstances may make the application of an open licence more difficult because other fundamental rights or ethical considerations must also be respected, such as the privacy and personality rights of people depicted in the images. Rights holders can therefore consider how open they want their work to be and choose an appropriate degree of openness. By selecting the appropriate licence or access conditions, they can regulate how the public may access, use, and reuse the work while taking other legal and ethical considerations into account.
TO CONSIDER
Sometimes, it is not immediately clear who owns the copyright in academic research: the researcher who created the work or the university or research institution. To determine whether copyright has been transferred from the author to the institution, it is important to check the applicable legal and contractual framework. A transfer may be provided for in the university’s governing regulations, internal rules governing the relationship between employees (including researchers) and the institution, or specific policies on intellectual property management. In some cases, copyright may also be implicitly transferred if this can reasonably be inferred from the purpose of the employment relationship. However, to avoid uncertainty, it is preferable to establish any transfer of rights clearly and in writing.
In Switzerland, researchers at most Swiss universities retain copyright in the works they create, while other intellectual property rights (such as patents, trademarks, and designs) are transferred to the institution. This is the case where institutional regulations state, for example: “Except for copyright, the institution owns all intellectual property rights...”. Moreover, such university regulations usually grant the institution exclusive rights to use software developed by employees in the course of their employment.
By contrast, most Swiss universities of applied sciences own also the copyright in works created by their employees in the course of their employment for the institution (incl. research data and research results).
FAQ
Share visual data as openly as possible and as restrictively as necessary, by adjusting two dimensions: access and usage permissions.
The access conditions, licensing terms, consent provisions, and available documentation for the dataset. This is necessary in order to know what users are allowed to do with the data.
