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Home>Making a submission>Legal aspects
Making a submission
15/12/2011
Your rights over your publications
Are scientific publications protected?
Scientific publications (articles, research reports, PhD theses, dissertations, conference speeches, lessons, activity reports, scientific assessment reports) are protected by copyright; their author has moral and economic rights over them.
Scientific publications are protected by copyright if both of the following conditions are met:
- They must be formalised in writing (the start of a scientific article, a draft report). The mere idea to write an article on a topic, however specific, cannot be protected by copyright. In contrast, an article, even an unfinished one, is protected;
- They must be original.
Originality does not necessarily entail an innovative publication; it could also involve a creative piece of work in which the author has put his/own slant on a subject that has already been covered in scientific literature. (e.g. a simple compilation of articles is not protected, but a critical analysis of these articles is). The scientific quality of the publication is not a criterion used to determine its originality.
What rights do authors have over their scientific publications?
The law grants the author of a work two types of rights:
These rights attach personally to the author and cannot be assigned. They are passed on to heirs and may be exercised for an unlimited time.
They comprise:
- The right for the author to put his/her name on the publication or not, on the understanding that the researcher will cite INRIA and INRIA will cite the name of the researcher;
- The right for the researcher to oppose the distortion of his/her publication by a third party;
- The right to decide to publish or not;
- The right to modify the publication or withdraw it from circulation
These rights allow the researcher to exploit his/her scientific publication. They may be exercised throughout the researcher’s lifetime and by his/her heirs for 70 years after his/her death. In the case of INRIA, they are protected for 70 years after the initial release of the publication.
There are two types of economic rights:
- The right to reproduce the publication – i.e. the right to commit 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 assigned free-of-charge or for valuable consideration, totally or partially, exclusively or non-exclusively, particularly as part of a publishing contract.
The personal written consent of the author is required to exploit his/her publication.
Who is the beneficiary of rights over scientific publications?
In view of their independence from their hierarchical authority, researchers and research-lecturers are not covered by the copyright rules applicable to public servants that were introduced in 2006 by the DADSVI law, and own all the rights over their publications.
Nevertheless, INRIA is free to use the activity and assessment reports written by its researchers, insofar as they directly concern its scientific activity and were written at its request, in accordance with its statutory obligations. When publishing such reports, INRIA cites the name(s) of the researcher(s) who wrote them.
When the publication was written by several researchers, they are considered as co-authors of the publication, each having rights over the part he/she wrote. The agreement of all authors is required for the publication to be disseminated in its entirety.
The new copyright rules for public servants of an institution such as INRIA provide that public servants own the copyright of their publications. The exercise of these rights is, however, limited in the interests of public benefit. Thus, in relation to the moral rights of public servants over the works they have written:
- The public servant’s right of disclosure is limited by the statutory rules to which he/she is subject;
- A public servant who has written a publication cannot oppose the modification of his/her publication by his/her hierarchical authority, unless such a modification would be detrimental to his/her reputation or honour;
- A public servant who has written a publication cannot exercise his/her right to repent and withdraw the publication without the prior authorisation of his hierarchical authority.
Lastly, with regard to the use of the public servant’s publication, we must distinguish between two possible situations:
- Non-commercial use of the public servant’s publication
The State shall automatically be assigned non-commercial rights of use over a work created by a public servant, as long as this work was created in the course of his/her duties or according to instructions received from his/her hierarchical authority, and to the extent that this assignment is strictly necessary for the fulfilment of a public-service mission.
- Commercial use of the public servant’s publication
In the event of commercial use of the work written by the public servant, the State shall have a right of first refusal, unless the publication is the result of scientific research work conducted as part of a contract with a legal person under private law, in which case the contractual provisions concerning use of the research results shall be applied.
What precautions should I take prior to publication?
Besides issues relating to the scientific or technical quality of the publication, it is important to avoid 4 main pitfalls.
Infringement of copyright is characterised by the total or partial reproduction or representation, with a greater or lesser degree of skill, of a publication that already exists, without the authorisation of its author. What is the risk? The author of the first publication may request the immediate withdrawal of the publication and/or claim damages and/or bring an action in the criminal courts.
How do I avoid this? Prior to publication, request authorisation from the researchers who co-wrote the article or the authors of the texts or work reproduced in your publication. This request must be made in writing and must specify what is incorporated in your publication, the medium in which publication is envisaged, the reason for publication, and the intended audience. The answer must be given in writing. An exchange of precise emails may be sufficient.
What about citation? Another author may be cited without being asked for his/her permission on condition that this citation is short and names existing scientific work for educational purposes.
When the scientific publication concerns a process or invention for which a patent application has been submitted by INRIA or one of its partners, you should ensure that the publication does not reveal the elements that are the subject of the patent application (i.e. the elements for which protection is being sought). Any elements unveiled will lose their innovative character before patent protection is definitively granted and can therefore no longer be protected by patent.
What is the risk? The partner or INRIA may bring a tort action against the researcher. The partner may also bring an action for unfair competition.
How do I avoid this? By checking the confidentiality conditions in the partnership agreement that gave rise to the patented result, and having the clauses of the agreement explained to you by a competent person if necessary (a lawyer or person dealing with industrial relations), and by checking whether the filing of the patent is complete. If in doubt, it is better to refrain from disclosing any information concerning the research work or applications of this work before you have the answers to all these questions.
When the scientific publication refers to previous work, its author(s) must ensure that the moral rights of peers are respected.
What is the risk? The author of the reference publication may bring a tort action against the researcher.
How do I avoid this? By citing the name of the author(s) of the reference work, by respecting the context in which this work was done and the objectives pursued by the author(s) of the reference publication, and by not modifying the nature of the reference work. Do not publish or disseminate a pre-print that the author does not wish to disclose in its current state.
Authors must ensure that their publications are not detrimental to a person or body corporate (organisation, scientific circle, etc.).
What is the risk? The defamed person may bring an action in the criminal courts or a civil action in tort against the researcher.
How do I avoid this? As defamation is intentional, it is easy to avoid.
The author of a publication must try not to disclose confidential information such as patentable research results or know-how.
What is the risk? The person who owns the confidential information disclosed may bring a tortious or contractual action, or even a criminal action, against the person who disclosed the information.
How do I avoid this? The author must check the status of the data and information he/she uses in his/her publication.
View or submit documents via HAL-INRIA. You can also consult the "Guide to submission and proper use of Hal"", which deals with good scientific usage of Hal, and matters relating to professional ethics and copyright.
