Copyright 

1 INTRODUCTION

It is essential that funding for the infrastructure needed to develop standards is secure. This means it is necessary to ensure that the right to exploit the content of CEN- standards is properly protected. The ease of electronic copying and distribution, and challenges to the true ownership of copyright, has made it necessary to move this protection to a formal basis.

This is being done through an 'exploitation rights assignment statement' (ERAS), through which experts participating in TCs and WGs transfer the exploitation rights on their contributions to CEN. Furthermore, an agreement between CEN and its National Members stipulates the transfer of these rights to the Members. So, ultimately, the National Standards Bodies (NSBs) members of CEN benefit from the right to exploit  the standards and Technical Specifications produced by CEN.

The ERAS is incorporated into the 'List of Participants' and is therefore the first thing that the experts and delegates are asked to sign. The process for acquiring and archiving the necessary signatures is simple and provides the required legal protection.

2 POLICY GUIDANCE

2.1 On attending or joining a TC or WG, delegates and experts are to be informed that a pre-condition of their participation is the acceptance of the Internal Regulations, in so far as they affect delegates and experts (see Internal Regulations – Part 2, Clause 3.2.3.1, 3.3.3.1, 3.4.2 and 9). The experts should be aware of the Internal Regulations and agree to contribute to the CEN work in accordance therewith.

2.2 A standard document is developed by a number of individual experts participating in TCs/WGs; thus, it is the appropriate level where the assignment of exploitation rights must take place.

This is why TC/WG experts are requested to agree to the ERAS, which is annexed to the 'List of participants' for the meetings or sent by e-mail to experts participating by virtual means.

2.3 The ERAS must be signed. Indeed, the formal written assignment of copyright to a person or a publisher, signed by the contributors, is accepted by a number of European courts as evidence of the transfer of exploitation rights. The email returned  to the (Acting) Secretary by those persons attending the meeting by virtual means (e.g. web-conference, phone, etc.) shall be archived for legal evidence, preferably on the Livelink platform, to ensure their long-term availability. ERAS therefore ensures that there is no misunderstanding and that CEN, being the organization to which the copyright is assigned, can use the material without threat of legal challenges.

2.4 As stated in the Berne Convention for the Protection of Literary and Artistic Works, the “moral rights” to the copyright always remain with the original drafter. CEN also recognizes this by stating in the ERAS and in Clause 9 of the  Internal Regulations – Part 2 that the copyright of existing material contributing to the development of a standard always remains with the originator. Only the copyright associated with the exploitation rights of each expert’s contribution are is assigned to CEN.

2.5 Consequently, although the assignment is exclusive to CEN, this does not prevent the original drafter from using his contribution to the standard for his own purposes. These would include use in internal company processes, documentation, design and specifications or use in specific scientific or technical publications.
The only restriction concerns the commercial use (marketing / selling) of that contribution by the relevant expert, which may be adversely affect the related CEN publication and infringes the right of exploitation on that publication of the CEN NSBs.

2.6 The established practice is that no payment is made for the assignment, nor are individual contributions acknowledged in the published document. The duration of copyright protection is set by the Berne Convention and Belgian law and is currently 70 years.

2.7 The assignment of the exploitation rights is under Belgian law as this is the country in which CEN is located.

NOTE:
  Additional copies of the list of participants and the explanatory leaflet may be obtained from the TC Secretary.

3 PROCESS GUIDANCE

3.1  Collecting and filing of exploitation rights assignments from experts

3.1.1
  The first objective is to collect exploitation rights assignment signatures from all contributors currently active in developing standards on the present Work Programme in a TC, subcommittee (SC) or WG (referred to below as drafting groups).

3.1.2
Before requesting signatures, the TC or SC Secretary and the WG Convenor shall ensure that copies of the explanatory leaflet have been circulated.

3.1.3 Signatures of all current contributors shall be obtained using the list of participants that incorporates the ERAS.

In order to secure the assignment of exploitation rights of contributions made by participants not physically present during meetings of CEN technical bodies, the TC or SC Secretary or the WG Convenor shall systematically send the e-mail message used for virtual meetings.

Normally, the signatures should be collected over a period of two meetings. However, the above-mentioned list of participants should always be used for its additional function of recording attendance. The attendance of any dissenting participants should be recorded in the minutes of the meeting.

NOTE:
  Additional copies of the list of participants and the explanatory leaflet may be obtained from the TC Secretary.

3.1.4 The WG Convenor should cooperate with the Secretary of the parent TC to resolve any difficulties. Guidance notes have been prepared to help the WG Convenor to answer commonly asked questions and to resolve difficult situations.

3.1.5 When all signatures have been obtained, the WG Convenor takes a photocopy for his/her own files and sends the original copy of the ERAS (no photocopies) to the TC Secretary. The TC Secretary will then pass them on to the NSB holding the TC Secretariat who safeguards the original ERAS and makes them available on demand by CCMC.

3.1.6 The emails returned to the TC or SC Secretary or the WG Convenor, shall be passed on to the TC Secretary who shall archive them for legal evidence, preferably on the Livelink platform, e.g. along with the attendance list, to ensure their long-term availability.

3.2  Collecting and filing of exploitation rights assignments on contributions from Third Parties

3.2.1 It is important to ensure that also other contributions from Third Parties, such as documents provided by experts/companies not participating regularly to the TC/WG meetings (i.e.: not permanent members of CEN TC/WG) are also subject to exploitation rights assignments to CEN. This is normally done with the signature of an Exploitation Rights License Agreement (ERLA) by the Third Party.

3.2.2 ERLA should be signed in all cases of contributions by Third Parties, as a safeguard measure, but it must be signed in any case if the Third Party expert’s contribution is a “significant element” to the technical content of the CEN standard for which he/she is the copyright owner.

NOTE:  'Significant element' means that the contribution being inserted in the standard document (e.g.: a Third Party’s document copied into the standard), is so important that a normative reference would need to be made to it in the standard if it was not included.  There is no rigid rule; it is a matter of judgement and common sense. As a general guidance, in the ERLA statement, it is mentioned that as “Significant element” it is understood to be an essential contribution to the CEN deliverable that may represents more than 5% of the technical content.

3.2.3 The TC Chairman or WG Convenor shall inform CCMC in each case when an ERLA needs to be signed by a Third Party. CCMC will provide the necessary guidance and may decide to handle directly negotiations on the ERLA in order to ensure coherence at CEN level.

3.2.4 After obtaining the signature of the ERLA, the completed original document has to be sent back to the TC Secretary after the TC meeting or as requested.

3.2.5 The WG Convenor takes a photocopy for his/her own files and sends the original copy of the ERLA (no photocopies) to the TC Secretary. The TC Secretary will then pass it on to the NSB holding the TC Secretariat who safeguards the original ERLAS and makes them available on demand by CCMC.

3.3 Avoiding problems regarding the use of existing copyright material in the development of a standard.

3.3.1 Delegates or experts contributing to the work with existing copyrighted material have to inform the Secretary or Convenor in case they are not the copyright owner of such material, or if they have not been allowed by the copyright owner to incorporate such material, in part or in whole, in the standard that is being developed. Examples of copyrighted material are company manuals, published books  guides, etc.
In such cases, the contributor should indicate who the copyright owner is, if known.

3.3.2 If the TC/WG considers that the copyrighted material is a “significant element” of the standard under development, it must acknowledge this fact and seek to obtain permission from the copyright owner  to use it by requesting the signature of the ERLA.

NOTE:  'Significant element' means that the contribution being inserted in the standard document (e.g.: a Third Party’s document copied into the standard), is so important that a normative reference would need to be made to it in the standard if it was not included.  There is no rigid rule; it is a matter for judgement and common sense. As a general guidance, in the ERLA statement, it is mentioned that as “Significant element” is understood to be an essential contribution to the CEN deliverable that may represents more than 5% of the technical content of the same.

3.3.3 As good practice, The TC Chairman and WG Convenor are advised to check regularly whether there is any significant material already in the current drafts of the standards being developed by his/her group, for which the copyright is not owned by the experts present at the meetings.

2016-04-21

4 FAQ

What does Assignment of exploitation rights mean?

The owners of copyright can assign that ownership to anyone else, and the new owner has the right to exploit it. Delegates of the CEN national members in Technical Committees/Subcommittees and/or experts of Working Groups agree to assign their copyright to the relevant standards body as a condition of their participation in the standards making process.

What are the Author rights?

Under Belgian law, a standard is regarded as being a "collaborative work" protected by author's right which belongs to the contributors. For CEN to be able to protect this right, contributors need to assign the exploitation rights to CEN.

Who is the Contributor?

The Contributor is the person who creates, or assists in the creation of, an original element of a European Standard.

What does Copyright mean?

Any person or group drafting any type of document automatically owns the text they have written, and their ownership is protected by copyright law. What they own, however, is the particular form of expression, not the ideas they are trying to convey

NOTE: The copyright is part of the generic term 'Intellectual Property'

What is the Intellectual Property?

The Generic concept covering a number of different types of protection for the works generated by the human intellect