I must preface this post by saying that this is a personal reading and interpretation of existing guidelines and by no means a formal or complete statement of the University of Lincoln’s IPR policy. It was written primarily for a different project I am involved in, but because our OER project involves the work of both staff and students, there are overlaps from my discussion below that seem relevant to the Chemistry.fm project.
In our chapter, The Student as Producer. Reinventing the Student Experience in Higher Education, Mike and I argued that:
further attention needs to be paid to the framework by which the student as producer contributes towards mass intellectuality. This requires academics and students to do more than simply redesign their curricula, but go further and redesign the organizing principle, (i.e. private property and wage labour), through which academic knowledge is currently being produced. An exemplar alternative organizing principle is already proliferating in universities in the form of open, networked collaborative initiatives which are not intrinsically anti-capital but, fundamentally, ensure the free and creative use of research materials. Initiatives such as Science Commons, Open Knowledge and Open Access, are attempts by academics and others to lever the Internet to ensure that research output is free to use, re-use and distribute without legal, social or technological restriction (www.opendefinition.org).
The University’s Policy on Intellectual Property Rights, defines ‘Intellectual Property’ as
…the product of the human intellect that may have commercial value, including copyrighted property such as literary or artistic works, and ideational property, such as patents and industrial processes” and is defined in detail as any:
• Concept, discovery, invention, process, procedure, development or improvement in process or procedure;
• Data, design, formula, model, plans, drawings, documentation, database, computer program or software (including related preparatory and design materials); and
• Idea, method, information or know-how;
made, discovered or created by a person whether alone or with others whether or not in the course of their employment which relates to the business or other affairs of the University.
In compliance with the Copyright, Designs and Patents Act of 1988, sections 11 and 215, the legal position on the ownership of Intellectual Property is as follows:” Ownership of any such property that has come into existence in the course of employment is vested in the employer”; however, not all IPR generated by staff during the course of their employment necessarily belongs to the University [my emphasis]. There are two exceptions as set out below:
(a) Where the University agrees to waive its right to IPR generated by employees, for example, the University does not make any claim on the rights of employees, or income earned by members of staff, from academic publications or other creative works, [my emphasis] unless commissioned by the University; or where the staff member has undertaken private consultancy and the University has no interest in the IP generated. (See sections 3.6, 3.7, 4.5) or as given in the Academic Contract Section 17.6 relating to copyright.
(b) Some IPR may be generated on research or other third party contracts which give the third party (usually the sponsor or funder of the research) rights over some or all of the IP.
5.2 UNIVERSITY INTELLECTUAL PROPERTY RIGHTS
Under section 39 of the Patents Act 1997 and section 11 of the Copyright, Designs & Patents Act 1988 (see above), the University claims ownership of the following forms of Intellectual Property:
5.2.1 Works generated by computer hardware or software owned or operated by the university;
5.2.2 Films, videos, multimedia works typographical arrangements and other works created with the aid of university facilities;
5.2.3 Patentable and non-patentable materials;
5.2.4 Registered and unregistered designs, plant, varieties and topographies;
5.2.5 University-commissioned works not within 5.2.1), 5.2.2), 5.2.3) or 5.2.4);
5.2.6 Databases, computer software, firmware, courseware, and related material not within 5.2.1), 5.2.2), 5.2.3), 5.2.4) or 5.2.5), but only if they may reasonably be considered to possess commercial potential;
5.2.7 Know-how and information associated with the above.
5.3 INDIVIDUAL INTELLECTUAL PROPERTY RIGHTS
However, the University agrees to allow individuals to retain intellectual property rights on:
5.3.1 Copyright and royalties from books, articles, artefacts, dramatic, musical or artistic works and other scholarly work produced in furtherance of the member of staff’s professional career (apart from those commissioned by the University);
5.3.2 Audio or visual aids to the giving of lectures; or
5.3.3 Computer-related works other than those listed in 5.2.1 – 5.2.7 above.
This suggests that in most cases, the IPR for scholarly research publications and teaching and learning materials created by academics is retained by the individual(s) who produced them. However, in the case of the Student as Producer, we must also consider the ownership of student IP and whether it ensures similar freedoms to that of academics.
University of Lincoln Student IPR Policy
The university’s Policy on Student Created Intellectual Property, outlines the circumstances and conditions which vest “the copyright and all other intellectual property rights which may subsist in the results of research undertaken by the Student and all other materials created by the Student in the course of their studies with the University.”
It acknowledges in the first instance, “that its students own the IP in materials that they create in the course of their studies with the University unless there is a written agreement to the contrary.” The Student Intellectual Property Rights Agreement, should be completed and signed by all post-graduate research students. Undergraduates and taught post-graduates are required to sign it at the discretion of their faculty based on whether the research “has the potential to generate commercially exploitable IP.”
Where an Agreement is requested and signed, the university “undertakes to treat students in the same way as members of staff for the purposes of the commercial exploitation of that IP. This is done by applying the University’s Policy on Intellectual Property Rights and associated procedures as if students are employees.”
The Agreement grants a license to the student to use their research for assessment and examination and to commercialise the IP based on a prior agreement with the university. The Agreement requires a five year non-disclosure/confidentiality agreement where the research is of a confidential, proprietary or secret nature. The student enters into a sole relationship with the university and agree to co-operate where necessary in the commercialisation of the IP, waiving all moral rights arising out of their research.
In return, the student “will be compensated in accordance with the University IP Policy (for the purposes of which the Student will be considered to be an employee of the University).”
JISC Legal Investigation into Student Work and IPR
JISC’s report is “an analysis of the intellectual property rights (IPR) issues associated with student created work in UK further and higher education.” They report from their focus group discussions that “a common thread was that student work should be made part of the IPR policy. Achievement of parity in the treatment of staff and students as regards the provisions in the IPR policy was stressed during the discussions.” They also found that “the provisions of an IPR policy must be explicit on ownership of IPR and students are made aware of their IP rights at the time of offer of admission.”
The report highlights that
Institutional policies will have to take into account the varieties of situations in which students create intellectual property throughout their learning and research. The context may vary according to the type of work, the level of work, the discipline and the department in which it is produced. Institutions should be aware of the possible risks which arise through non-consideration or poor consideration of IPR issues. Also, whatever the eventual policy of the institution, it needs to be recognised that the student will not be able to grant rights in third party material contained in his work, and that the institution must develop procedures for recognising and respecting those third party rights in reuse of the work.
Significantly, they state that
An institutional student IPR policy must be validly incorporated within the student-institution contract, and this will require giving proper notice of the policy. The Unfair Terms in Consumer Contracts Regulations 1999, which are likely to apply to the student-institution contract, make unfair contract terms void in non-negotiated contracts. Institutions will therefore have to ensure that the terms of their policy are defensible as being a fair division of ownership, reward and recognition for the IPR created by students. Ideally, this justification should be made explicit in the policy, or in guidance accompanying the policy.
Where IPR is created through the collaboration of staff and students , the IPR policy in respect of staff, and that in relation to students, must complement each other in giving certainty as to ownership of the resulting IPR.
The report concludes that
a blanket requirement of assignment [of student IP to the institution] is unlikely to meet the test of fairness in the Unfair Terms in Consumer Contracts Regulations 1999. Any requirement of assignment should be accompanied by an explanation of why this is being requested.
A suggested approach to is to “Require a licence to be granted in favour of the institution”
This is likely to be a fair and effective approach in most instances. The terms of the licence should cover all uses and potential future uses, and will still be subject to a test of fairness as a term in a consumer contract.
Research engaged teaching and learning may, in some disciplines, generate research output which is deemed of commercial value. In the case of the post-graduate research students, this IP is assigned to the university upon enrolment. In the case of undergraduate and taught post-graduate students, an agreement is sought with the student at the faculty’s discretion. If student IP is commercialised by the university, the student is rewarded on the same favourable terms as a member of staff. There does appear to be at least one conflicting clause between the staff IP policy and the student IP Agreement. The overall IP policy that governs staff and students states that “The right of the author (and personal to him) to be acknowledged as such and to ensure that his work is treated in a suitable fashion. This right, being personal, is separable from any copyright concern.” The student Agreement, states: “To the full extent permissible by applicable laws, the Student hereby waives moral rights arising as a result of research undertaken by the Student and all other materials created by the Student in the course of their studies with the University.” This may be an oversight in the writing of the Agreement that needs further attention and/or clarification.
Student IP generated during the course of research where individuals are allowed to retain IPR (i.e. the university automatically waives copyright and other IPR), include teaching and learning materials and so-called scholarly work such as publications.
In line with the guidance from JISC Legal, the IPR policy for both staff and students does, in terms of collaborative endeavours, “complement each other in giving certainty as to ownership of the resulting IPR.” However, the requirement for post-graduate researchers to complete and sign an agreement upon enrolment, may conflict with the Unfair Terms in Consumer Contracts Regulations 1999.
The university’s IPR policy does not preclude staff and student collaboration in research nor does it appear to restrict such collaboration and eventual dissemination of scholarly work produced through staff and student collaboration. By vesting the copyright of scholarly work in students and staff, they are then “free to use, re-use and distribute without legal, social or technological restriction (www.opendefinition.org).” However, it would be advisable to seek further clarification on the use of open licenses for scholarly work and teaching and learning materials.