Copyright
1. What is protected by copyright?
The results of creative work protected by copyright include, for example, written works in the field of fiction, education, etc.; e-courses, monographs, research articles, research reports, schemes, tests, reviews, expert opinions; lectures, speeches, presentations and other oral works; musical and audiovisual works; and computer programmes, databases and other results. The Copyright Act calls such results protected by copyright in general as works. The list of examples of the works is set out in subsection 4 (3) of the Copyright Act.
With which conditions must the result of a creative work comply in order for it to be protected by copyright?
A work created in the literary, artistic and scientific domain must be original, i.e. the work must be the result of the author’s own creation (i.e. it may not be a copy of work of another person); the work must have been expressed in an objective form (manuscript, video or audio recording) and can be perceived and reproduced in this form either directly or through technical means. For example, a lecture presented in oral form can be reproduced as an audio or video recording. Since a work must have been expressed in a form that can be perceived by other people, ideas and thoughts as such are not protected by copyright. Neither does copyright protect facts or single data.
Is it possible to protect new ideas by copyright?
No, it is not. Copyright cannot protect the content of the work itself (ideas, concept, etc.). Copyright protects the form of expression of a work, i.e. the work in the form of expression of the words, sentences, structure, etc. that the author has provided to the work. Copyright does not protect the ideas, inventions, etc. that a work, e.g. scientific publication, contains.
Why is the copyright sign © used for the designation of copyright?
The © sign designates the holder of economic rights of an author. The © sign does not have any legal meaning in Estonia. Our practice to designate a work with the © sign originates from the time when Estonia had acceded, through the Soviet Union, to the Universal Copyright Convention, but that has become invalid in respect of Estonia due to the restoration of independence of the Republic of Estonia.
At present, Estonia has acceded to the Berne Convention, which prohibits, as a prerequisite for the protection by copyright, any formalities (registration, deposit, etc.). This means that copyright for a work arises without registration thereof anywhere.
However, it is important to add to one’s work information about the holding of copyrights in order to inform other people of the protectedness of the work by copyright and in order for the persons who wish to use the work to know whom to address in order to obtain a permit for using the work.
How should an author designate their work?
Information about the holder of copyright on a work is very important from both the informative aspect and that of the enforcement/exercise of copyrights, i.e. in order to inform other people of the protectedness of the work by copyright and in order for the persons who wish to use the work to know whom to address in order to obtain a permit for using the work.
If both moral and economic rights belong to an author, the designation could be as follows: Autoriõigus Pille Kask 2010; in the case of a foreign publication: Copyright Pille Kask 2010. The following warning clause may also be used: Any use whatsoever of this work or a part thereof is only permitted if the user can produce a corresponding permit (licence) issued by the copyright holder.
What does the designation “Copyrights University of Tartu and author (name)” on teaching materials mean?
The aforesaid designation reveals that copyrights belong both to the university and the author. In respect of teaching materials created in the execution of direct duties of employment, such a designation indicates that economic rights to a work belong to the university as the employer and moral rights belong to the direct creator, i.e. the author.
What are moral and economic rights of an author and to whom do they belong?
The moral and economic rights of an author belong initially to the author of a work.
Moral (i.e. non-economic) rights are the right of authorship, right of disclosure of a work, right of integrity of a work and the right of supplementation (amendment and improvement) of a work. Moral rights cannot be transferred (assigned).
In respect of some moral rights (e.g. the right of disclosure of a work, right of integrity of a work, etc.) an author can grant an applicant an authorisation for use, i.e. licence.
Economic rights are, e.g. the right of reproduction, distribution, performance or exhibition of a work and making a work available on the Internet. Economic rights can be transferred (assigned) without charge or for a charge.
Which rights to a work created in the execution of direct duties of employment of a faculty member belong to the university as the employer and which ones belong to the faculty member as the author of the work?
Economic rights (e.g. right of reproduction, distribution, performance or exhibition of a work) to a work created in the execution of one’s direct duties of employment transfer to the employer (in accordance with the Copyright Act). The moral rights of an author (e.g. the right of authorship, right of disclosure of a work, right of integrity of a work) remain with the author. In order to use the moral rights of an author, the employer must enter into a separate agreement with the author. This also applies to Internet-based courses and teaching materials.
The university has waived economic rights for the benefit of an author in respect of research articles, conference presentations, propositions, presentations, etc. works and these rights belong to the author(s). Does an author have to refer to the university upon using a work?
Yes, the author has to clearly refer to the fact that the work has been created at the university. It is also sufficient to indicate next to the author of the presentation, etc., that the place of work of the author is in the university.
Does an author have the right to receive separate remuneration for the creation of works created in the execution of their direct duties of employment?
No, they do not, except if the author and employer have agreed on separate remuneration.
Is a compiler of a collection an author for the purposes of the Copyright Act?
Yes, they are. A person who creates a collection as a result of their creative activity by selecting or arranging enjoys copyright in this collection as of the moment of creation.
May agreements between joint authors, incl. issues concerning the use of the work and distribution of remuneration, be oral?
It is recommended that such agreements on the use of the work and distribution of remuneration certainly also be recorded in writing. Formalisation of an agreement in writing helps reduce the threat of later misunderstandings and makes it possible to certify the agreement in the case of possible conflicts.
What is deemed to be use of a work for the purposes of the Copyright Act?
The Copyright Act regards the use of a work as several different acts, each of which is related to a right that belongs to an author and/or holder of copyright. Each such act (i.e. in general: use of a work) needs a separate permit of the author and/or holder of copyright.
The use of a work may be, e.g. reproduction (printing, recording, etc. copying), distribution (sales), public performance, communication to the public, etc., of the work.
May authors themselves use the teaching materials created in the execution of their direct duties of employment, e.g. while teaching in another institution of higher education or publish them?
No, they may not. If a work, e.g. lecture material, has been created within the framework of execution of direct duties of employment, the economic rights to such a material will transfer to the university as the employer, which means that the author themselves will have no right to use the work (for the purposes of the Copyright Act), i.e. the author may not themselves, e.g. disseminate (sell) the work any more.
May the university have an e-course created by a faculty member in the execution of their direct duties of employment changed by another faculty member?
No, it may not. The right of supplementation (amendment and improvement) of a work is a moral right of an author (however, pursuant to law, only economic rights of an author transfer to the employer) and it remains for the author in respect of the work created in the execution of their direct duties of employment, except if a licence agreement has been entered into between the author and university for exercising moral rights of the author.
What does the difference consist in if the use of copyrights is granted on the basis of a non-exclusive licence or exclusive licence?
If the holder of copyrights grants another person a permit to use a work by a non-exclusive licence, they will retain the same rights in respect of which the licence has been granted and they may themselves also use the work within the same scope and grant to third parties a permit, i.e. licence, for using the work in respect of the same rights. For example, if an author grants one publishing company a right, on the basis of a non-exclusive licence, to reproduce and disseminate a monograph, they may themselves also copy and disseminate the same work or grant third parties the same right. If a permit for using a work has been granted by an exclusive licence, the rights may be used only by the person to whom the respective permit has been granted. The author themselves has no right to use the work and they may not grant any third parties a permit of the same content for using the work. For example, if an author grants a certain journal a permit for publication of an article on the basis of an exclusive licence, they may not sell the right to publish the same article to other journals any more.
May assignment of copyrights or granting of a licence be oral?
No, they may not. The assignment of rights and granting of an exclusive licence must have been formalised in writing. A non-exclusive licence may be in a format that can be reproduced in writing, e.g. by e-mail. In the case of possible disputes or misunderstandings, written form allows for significantly easier certification of agreements than it would in the case of granting an oral permit.
Whom do the economic rights of an author of a video lecture belong to?
Since giving lectures in a certain field belongs among the duties of employment of faculty members, the respective economic rights of an author belong to the university as the employer.
May a faculty member use teaching materials created in the execution of their direct duties of employment if they leave the university? If yes, then how?
Since the economic rights of an author (e.g. the right of reproduction, distribution or performance of a work or making a work available on the Internet) have been transferred to the university as the employer in the volume delimited by duties of employment, in respect of these rights a faculty member may use the created teaching materials after leaving the university with prior consent of the university.
May a faculty member use in their teaching materials term papers or Bachelor’s theses draw up by students?
Independent works of students, incl. terms papers and Bachelor’s theses, are works protected by copyright, and therefore it is necessary to ask for the author’s consent in order to use them (incl. in teaching materials). Upon citing or referencing a work, the author and title of the work and the source of publication must be indicated.
May a video clip in YouTube be added to e-teaching materials if a respective link is attached to the teaching material?
In order to use material protected by copyright and made available on YouTube, just like in any other environment, a permit of the holder of copyrights is required as a rule. As an exception, it is acceptable to use a work as illustrative material for teaching and scientific purposes in justified volume and provided that such use does not pursue any business objectives and indicating the name and title of the author of the work used and the source of publication is always necessary. It is important to adhere to the justified volume, i.e. the material accessible through a link must remain such that it would perform an illustrative, supporting function in respect of the main work (lecture, teaching material) and not form, e.g. a main part of the entire material or approach to a certain topic.
How may a work be used after the expiry of the term of protection of copyright?
If more than 70 years have passed from the death of the author, a work may be used by adhering, without a term, to the authorship of the work, right to the author’s name, right to the protection of the author’s honour and dignity and the title of the work. Upon publication of a work, the author’s name and title of the work must be fixed in such a form that was provided in the original.
If 70 years have passed from the death of an author, have the copyrights of the translation also expired in this case?
No, they have not. Translation of a work is an independent work and its copyrights are valid during the life of the translator + 70 years.
Does the reproduction of a photograph in one’s e-course materials mean using the work as an illustrative material for teaching or scientific purposes and may this take place without the permit of the author if access to the e-course materials is limited?
Yes, if the publication of the e-course has no direct or indirect business objective and students use the course without charge.
Only a lawfully published work may be used for teaching and scientific purposes without the consent of the author.
When is a work deemed to be lawfully published?
The disclosure of a work may take place either by publishing the work or communicating it to the public with prior consent of the author. The public means, for the purposes of the Copyright Act, an unspecified set of persons outside the family and immediate circle of acquaintances. Publication means issue of a work in print, sale of original copies, distribution of copies, etc. A work recorded in a computer system accessible to the public is deemed published (uploaded on the Internet).
A faculty member has made a copy of a work for themselves for personal use. May they make a copy for students for the purposes of teaching?
Yes, if the teaching has no direct or indirect business objective.
It is permitted to reproduce teaching material for teaching and scientific purposes without charge without prior consent of the author.
Does it also cover publishing teaching material?
No, it does not. Publishing of teaching materials is, as a rule, business activity and thus the aforesaid activity does not fit in the limits of free use of a work.
If there is no author’s name next to the photograph that a person wishes to use, how should it be attributed?
In such a case the title of the website material, domain name, etc. can always be referred to. It is recommended that the administrator of a respective website be addressed in order to ask for contact details of the holder of copyrights of the photograph.
What does citing a work in a justified volume mean?
Justified volume is different in the case of using each work. For example, if more than one page has been cited from a two-page article, this does not constitute citing, but reproducing a work that requires consent of an author.
May materials provided with the Creative Commons licence be translated?
The Creative Commons licence means standard conditions through which the holder of copyrights of a work can decide how they regulate the use of their work. It must be considered in the case of each specific work which rights the licence includes. If the rights to be licensed also include the right to translate a work, this may be done.
Plagiarism means the submission of texts, or parts or sentences thereof, by other authors, or the thoughts or main ideas that they contain, as one’s own written work or a part thereof so that the thoughts of other authors are largely attributed to the submitter of the work without the appropriate academic reference. Here belong, inter alia, all written works that have not been drawn up either in full or in the major part thereof that is important from the point of view of the content of the work by the person who presents themselves as the author of the work.
If a student has copied several pages of the work of another author in their Bachelor’s thesis without using any quotation marks and only one paragraph is in quotation marks with a reference to the source, does this constitute incorrect citation or plagiarism?
This probably constitutes plagiarism.
How can plagiarism be detected?
The KRATT /software for detection of authorship of degree theses/ is software that points to similarities in texts upon comparing them. The software user must themselves decide on whether a suspicion of plagiarism requires an additional check.
The KRATT is interfaced with the archives of degree theses of the University of Tartu, the Tallinn University of Technology, Tallinn University, the Estonian University of Life Sciences, Tartu Health Care College and Tallinn Health Care College.
The portal allows for:
- comparing works digitally archived by institutions of higher education with one another;
- comparing works digitally archived by institutions of higher education with the Internet;
- uploading works and comparing the content of a work with archives of other schools and the Internet.
The portal can be logged into with the username of the university by all faculty members and students of the university at the web address https://ideelabor.ee/plagiaat/. At present, students do not have the option to upload works yet.
If a faculty member wishes to check a graduation thesis not yet submitted for defence or another written work in the KRATT system, the student must be notified in advance. The aforementioned works must also be marked in the KRATT system as “closed”.
In the case of any failures or problems in the system, the developers of the portal ask that error reports be sent to the e-mail address test@ideelabor.ee.
The portal was established within the framework of the project “Development and introduction of modern plagiarism detection system in the organisation of work of institutions of higher education”.
If somebody contests protectedness of a work by copyright, is the burden of proof concerning the fact that the work is in compliance with the requirements for a work incumbent on the author?
An author does not have to prove that their work is in compliance with the requirements for a work. The person who contests a work must prove that it is not a work protected by copyright.
If students have shared teaching materials drawn up by a faculty member on different Internet portals, e.g. www.annaabi.com, what action should be taken?
If the violation concerns only the economic rights of an author that belong to the university as the employer, the university should address the owner of the Internet portal and require removal of the teaching material from the portal. If the violation also concerns the moral rights of an author (materials have been amended, the author’s name has been omitted, etc.), a faculty member, i.e. author, is also entitled to protect their violated rights.