Article Review: Make the butterflies fly in formation? Management of copyright created by academics in UK universities

Introduction

With expertise in IP and Commercial Law, Professor Rahmatian currently teaches undergraduate courses, and is a PhD supervisor at the University of Glasgow. Deriving inspiration from his first interview with Glasgow University’s representative, the title of the reviewed Article is rooted in an expression used by the representative, who expressed frustration at not being able to harness all the creative potential from the University to benefit it.

Article summary

Noting universities’ recent tendency to harness and monetize IP rights in their academics’ work – a study was conducted on the coherence of IP (copyright, in particular) policies of UK universities, supplemented with interviews of connected representatives. The study aims to find out whether universities as employers claim ownership over academics’ IP rights in their policies, how restrictive these claims are considering further use, and if such claim adheres to the law.

University policies presume that all work created by university academics (presumed to be employees of the university) belongs to the university in question. Does the statutory employee-copyright rule vest initial copyright ownership with the university?

Focused on copyright, (the most important IP right for conceptualizing academic output) the study establishes that ‘university managerialism’ arose with the emerging concern over IP rights in the 1990s. This is attributed to growth in the higher education sector, a decrease in public funding and the state’s transition into less of a financial provider and more of an internal regulator. This, in turn, has resulted in a knowledge economy that requires objective knowledge management – like a service business, students being customers. In perceiving academic work as IP rights, universities commodify academics as human assets and generate institutional capital.

A majority of academic output is protected by copyright. Copyright subsists when the requirements of ‘work’, ‘originality’, and ‘fixation’ are fulfilled. In general, the author is the first owner of copyright. This rule does not apply when a literary or artistic work has been created in the course of employment, unless such work is exempted by way of an agreement, or if the employee is self-employed and has been commissioned to the work. This raises certain questions regarding an academic’s work.

1. Is the work being done under a contract of service or a contract for service?

2. What is the scope of employment?

English courts have adopted a narrow view, referring to the case of Stephenson Jordan ([1952] 1 TLR 101), where it was held that when one delivers lectures along with his other employment duties, it would constitute a mixed contract – comprising a ‘contract of service’ and a ‘contract for service’. Duties under the latter would mean that such a lecturer retains copyright. This was affirmed in the subsequent cases of Noah v. Shuba ([1991] FSR 14) and Great Glasgow Health Board’s Application ([1992] IRLR 469). It is observed that university policies do not seem to recognize the point of law laid down in Stephenson Jordan – that a lecturer holds copyright in her notes that she has prepared to teach her class.

Overview of the methodology

Professor Rahmatian conducted the study by sending the following questions to universities’ representatives:

1. Does the researcher/interviewer possess all material concerning the university’s IP policy, or is there anything else to be referred to, like staff handbooks, employees’ contracts, etc.?

2. Does the university IP policy differentiate between copyright and other IPRs like patents? Is this necessary?

3. How do you, as a university representative, understand the IP policy of your university?

4. How does the university see the IP created by its academics?

5. Are there any exceptions to this?

6. According to you, what is the purpose of the university IP policy?

7. How does the university handle copyright? Is there a policy in place?

8. Using practical examples, explain whether the implementation of the copyright policy reflects what’s in paper. How is it monitored, and how are violations dealt with?

Interestingly, a number of potential interviewees declined to be interviewed, alongside the unhelpful responses. Professor Rahmatian says in the article, “The relationship between university as employer and academic staff was often uneasy regarding copyright ownership.”

Typically, most copyright policies remain working documents due to incomplete negotiations between the two parties. This is also why these documents have remained mostly confidential. Furthermore, there is no designated copyright officer, making it hard to pinpoint the right persons. Finally, eight universities agreed to participate. This was, despite the many hurdles faced, representative of the number envisioned, because information gathered from interviews tended to repeat itself. The IP clauses themselves tend to be HR standard clauses, a part of the employment contract, or borne out of individual negotiations.

Understanding the empirical findings

Universities do not tend to have a special copyright policy, but, rather, “an all-encompassing University IP Policy”. This is concerning because the definition of IP under the policy is too broad, and varies from its legal understanding.

Secondly, Professor Rahmatian notes, the lack of distinction in IP policies between the forms of IP, particularly between patents and copyrights, is because universities do not normally have departments that give rise to a considerable number of patents. Representatives also expressed that staff would be unable to understand this legal distinction. This approach is also flawed, because sometimes, different IP rights may need to be enforced for different purposes. For instance, an image can be protected as a trademark and under copyright. Universities tend to ignore this, and other criteria for other forms of IP to subsist in a work.

There are also differences in the terms and manner of assignment. Thus, the distinction between the different forms of IP must be addressed. Unfortunately, all interviewees preferred the lack of distinction for efficiency reasons and a seeming ignorance of the problems caused by a homogenous approach.

Other policies defined IP widely, but arbitrarily excluded some work (non-claiming or non-asserting policies) – mainly, articles in learned journals and books, and in some cases, teaching material. This may be a result of union pressures. However, these excluded works belong to the author under the law regardless. If a non-claiming policy is coupled with a contradictory license clause, it gets complex. The law does not allow abandonment of copyright, and copyright cannot be lost because of laches, estoppel or acquiescence. If a university owns copyright, they are inclined to retain it. However, when a work is commercially irrelevant, like in books and articles (debatable), universities probably do not want to spend on enforcement. There is no guideline as to when a work is commercially relevant, so universities tend to keep all their avenues open. The resultant uncertainty was illustrated by three interviewees’ answers when asked how their universities keep avenues open.

One, the university assigns copyright to the academic, the academic assigns it to the publisher. Problems with this approach include a lack of informed consent and unclear agency. Two, the university impliedly grants academic agency status to sign publishing agreements. This, too, brings up the issue of lack of informed consent. Three, the university does not claim copyright, which leads to de facto ownership by academics, which creates legal uncertainty.

While these ambiguities may be dealt with in court, there is the administrative concern of having to handle individual cases separately. This makes clear-cut ownership preferable. Another potential solution could be to require academics to assign copyright to the university, but this could raise union concerns.

University IP policies raise questions of ownership, too. Most assumed that any and all work in the course of employment belonged to the university, while very few deviated from this stance through exempting certain works.

Stephenson Jordan and Noah v. Shuba demonstrate that the true position of law varies on a case-to-case basis. Interpreting from them, if a lecturer holds copyright in his lectures, then the copyright in scholarly books and articles is also owned by the one who has authored them. The university, as an employer, orders the lecturer only to teach and conduct research in general, but not specifically to author material on a specific subject. Thus, the article or book has not been written in the course of employment, which makes the lecturer the first owner of copyright. The only way the university can obtain copyright is if an assignment is made. Thus, the initial assumption is invalid.

On this issue of distance learning materials, Professor Rahmatian points out their commercial importance and the resultant tendency of universities to want to protect it. However, what if the author of these materials moves to a different university? Interviewees seemed aware of this problem and noted that the use of the materials could not be hindered in this scenario. By law, universities are in a better position to claim copyright in teaching materials than in books and articles.

IP policies require that academics notify the university of potential IP, but this requirement is hindered by the academics’ reluctance towards university bureaucracy. In terms of revenue, universities tend to share a portion of revenue with the authoring academics, but these rules tend to be complex, factoring in student contributions and conditions set by funding organisations. However, some universities focus on non-profit motives, and focus on knowledge dissemination over profit. Sanctions appear to manifest in a conciliatory approach by IP departments, rather than policing.

IP policies have two broad roles – to fulfil their stated goals and the potential implications on academic freedom. However, some of these roles have drawbacks. IP policies can lead to viewing academics and human assets whose value depends on the commercial value of their output. They can also separate authors from their copyrighted work, resulting in unfair treatment and controversy. Interviewees highlighted the aspects of these policies, while denying their commercial goals. Professor Rahmatian argues that the policies’ potential impact was ignored by these official narratives. He also notes that there must be a distinction between universities and companies, and that universities cannot solely be judges on commercial output.

The Article dives deeper into the implications of university IP policies on academic freedom and ownership in a managerialist environment. There is a need to carefully re-evaluate copyright claims and their impact on institutional core values. Ownership claims can clash with academics’ career advancement needs when they are viewed as “content-providers”, thereby disregarding the essence of academic work through a “military-like approach” that “makes the butterflies fly in formation”. A first step, Professor Rahmatian suggests, is to assert copyright ownership, thereby paving the way to clarity.

Concluding remarks

Academic discourse, in its many forms, is the building block for all development. Given its immensely important role, it is no surprise that it is acquiring the nature of a commodity. However, it is surprising that IP policies have been able to stay in the dark for as long as they have – and continue to stay there. Given that most IP policies are deemed confidential for a variety of possibly justified reasons, increased transparency may benefit both academics’ unions and university management. Deviating from Professor Rahmatian’s disinclination towards this analogy, if universities continue to be perceived as companies, IP policies are as important as their articles of association, and it is dismal that they receive such little attention. The solution, as the article suggests, is awareness of the position of copyright law on academic ownership.

Citation of article reviewed: Rahmatian, Andreas, Make the Butterflies Fly in Formation? Management of Copyright Created by Academics in UK Universities (December 1, 2014). ‘Make the butterflies fly in formation? Management of copyright created by academics in UK universities’ (2014) 34 (4) Legal Studies, 709-735, Available at SSRN: https://ssrn.com/abstract=2755007