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Intellectual Property

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Samiksha - Law student

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We know well that Intellectual Property is, strictly speaking, a group of legal rights that exist in relation to the products of intellectual activity. Having ownership of intellectual property rights in a product gives one certain exclusive rights to do things with the product. Generally, the owner of the intellectual property rights in a product will be its creator. So, the owner of copyright in a work will be its author, artist or composer the person entitled to register ownership of a patent will be its inventor.

As major institutions of intellectual endeavor, universities have a high intellectual output. While a lot of this output is scholarly in nature,some has commercial value. There is a broad selection of intellectual property that students create during their term in universities. This will range from copyright in assignments articles, theses, artistic, musical works or computer programs to patentable inventions and designs.

The question, which arises then, is that who owns the intellectual property that is thus created by students as a part of research work during their stint in a university ? the student himself or the university? Usually each university has its own Intellectual Property policy that governs the ownership and use of intellectual property rights in subject matter created by staff and students. But rules and regulations regarding Intellectual Property created by students may vary from one university to another.

Universities give various reasons for their claims on student created Intellectual Property. These may be enlisted as follows: -
Australian Universities take the plea of ?Commonwealth Funding?- Since the Commonwealth Government funds nearly all universities in Australia, ?It is a condition of this Commonwealth funding that universities must abide by the National Principles of Intellectual Property Management for Publicly Funded Research, which charge each university with protecting its intellectual property.?

Universities also take the plea of their individual Intellectual Property Policies, which describe how their intellectual property is to
be protected, how it is to be exploited, and how any benefits arising from this are to be shared.Some universities ask their students to assign any intellectual propertythey may generate during the course of their studies due to the following reasons:
Students rarely develop intellectual property entirely independently. For example, in undertaking a research degree, they receive research training (through supervisors). These staff (and thus the University) therefore has a claim to the intellectual output of the student.

Furthermore, students rarely undertake research, which is totally unrelated to an existing body of knowledge. Usually they build on work already developed at and by the University. This is termed "Background Intellectual Property", which is frequently used, or referred to, in a student's project or thesis. This needs to be recognized when ownership of intellectual property developed by a student in the course of his candidature is under consideration. Students usually use University facilities and University resources in undertaking their research. This also provides a claim by the University on any output. Many a times students are part of a team whose work, at least in part, does external funding support. This external funding is the subject of a contract between the University and the funding party. The contract also deals with output. For the University to be able to negotiate with the funding party it must represent all staff and students involved. For this to occur students must formally agree that the university represents their interests.

Certain universities argue that since they provide their students with help in administrative, legal, financial and commercial areas and save the students of from negotiating with shrewd research financers by entering into negotiations with such financers themselves they need a right over intellectual properties produced by students. Universities claim to own intellectual property that students and staff create is likely to be partially attributable to government policy on innovation. If the Government policies of a certain nation emphasize the importance of innovation and intellectual property protection, then the universities may respond with corresponding policies of their own. Some universities claim that in seeking students? assignment of their intellectual property their aim is to engage them into a partnership with the University, whereby the University can represent the student?s
interests in any negotiations with third parties. Any intellectual property developed by the student can then be jointly exploited to the mutual benefit of both the student and the University. Usually where the Universities find that they cannot derive any benefit from the intellectual capital, they waive the claim in the ownership of the intellectual property and assign back the ownership rights to their creator.

Ownership issues - Who owns and How? - Universities have their own Intellectual Property Committees to look into various matters relating to intellectual property issues as and when they arise, and also to aid and advice the students, staff etc. They also have principles for sharing the net revenue received by them from the commercialisation of intellectual property, i.e. how they are to be divided amongst the university and student etc. The approach that each university takes to ownership of intellectual property that the student?s create may be different from each other. According to Ann Monotti they can safely be put under the following classes (models) as follows: - ,

Model A: Student Ownership
Subject to agreement to the contrary, students own all intellectual property that they create. Under this approach the university can negotiate with the student as and when it feels necessary or appropriate.

Model B: Categories and Conditions of creation Approach
Ownership of intellectual property is split between students and the university according to categories and conditions of creation of intellectual property. The usual approach is for the students to own all intellectual property, but agree to assign to the University such things as inventions made in the course of project activities or 'a patent worthy discovery or invention in respect of which the university has made a specific contribution of funding, resources, facilities or apparatus' or inventions made in the course of a supervised project.

Model C: Conditions of Creation Approach.
Ownership of intellectual property is split between students and the university according to conditions of its creation. So the University owns all student IP created in certain conditions and Students own all IP except those which were created in the agreed specific conditions.

Such conditions under which a university claims include work created:-
a.) in the course of studies;
b.) working in a team;
c.) using university resources or facilities;
d.) students working in collaboration with another researcher, a research team or an outside body;
e.) use of pre-existing intellectual property.

Model D: University Ownership
Under this model the university owns all intellectual property created in pursuance of studies and using resources or facilities, material etc. of the university. The study concludes that one of these models is in use by all major universities in Australia. Studies have also been conducted in Canada , which also show the practice of universities following any one of the above types of approaches towards ownership of student created Intellectual property.

Whether or not a university should attempt to gain interests in the intellectual property created by students remains a philosophical one. The universities who claim ownership over student's Intellectual properties give the argument of the various kinds of relationships existing between them and the students. Some say the relationship is that of a contractual nature, some say it is of a legal nature, others term it as one of employment. It is these legal issues that decide the ambit of claims to students? intellectual property.

The contract camp (i.e. those who believe that the relationship of a student and university is that of a contractual nature) say that when the students, sign a document or enter into an agreement with the university they accept the university policies as a precondition of their attendance of that institution. Though this document may not at times tend to discuss intellectual property matters straightaway. At times either the policies are referred to directly or the student agrees to abide by the rules of some variety of student handbook. The student handbook would then, in turn, make the student bound by the university policies. So in short this position states that the incorporation of university policies into these documents would bind the student to the terms of the university policies (including terms regarding intellectual property ownership). Authorities have come to accept that the legally enforceable relationship between students and private universities and colleges is contractual. However the approach towards the relationship in public universities is not so clear.


The employment camp treats a selected class of students such as say graduate students who receive university stipends or those undergraduate students who are employed as research or teaching assistants, or those graduate or undergraduate students receiving some kind of scholarship or stipend as employees. Their belief is that, by paying the student for his or her time, the university creates an employment relationship that entitles the university to the ownership of that student?s work product.
But there are certain tests to determine the presence of such a relationship and most abovementioned classes of students fail on one or the other counts.

In India the law regarding student?s ownership is not clear. This may be because of the fact that there are very few instances (almost negligible) of disputes between students and universities regarding intellectual property issues. Section 17 of the Copyright Act, 1957, lays down that ?the author of the work shall be the first owner of the copyright?. But it also gives
certain exceptions such as that of work done under a contract of employment or a public or government undertaking.

For students who get a scholarship from the university they are enrolled in, the argument of being in a relationship of employee or apprentice may be taken by the university, for claiming IP created by them. Moreover if the university happens to be a public undertaking, then also it may claim IP created by students. But otherwise unless the rules explicitly specify, or there exists a
contract to the contrary, the student owns his work as his intellectual property. The situation may become clear when cases arise in the area.

Students enroll in universities with the ambition of developing research skills, pursuing academic excellence and advancing their own and possibly the general boundaries of knowledge in their field of study. In the course of their relationship with the university machinery, students generate massive amounts of research, including valuable documentation and scholarly writings.

Like all creative thinkers they feel a strong sense of ?ownership? of the results that unfold in the course of research and studies. This instinctive reaction accords with the legal position. As it can well be seen there is no clear consensus as to how the intellectual property ownership is treated by universities, which may be related to the fact that there is presently no uniform legislative regime regarding such policies.

Till then in the absence of any agreement or employment relationship that defines where ownership of intellectual property vests, the legal position is that students own all the intellectual property that they create. A university has freedom to negotiate with a student to agree to assign ownership of intellectual property. The critical issue is how, and under what circumstances, this agreement should be sought. Since a university neither needs nor can justify claiming everything that a student creates in order to provide a possible means of catching intellectual property that may otherwise fall through the net of specific agreements.
Not only are there legal risks to validity but the action also creates a poor example of public relation and sets the educational role of the university on a collision course with the role to exploit intellectual property. The main aim thus must be to identify legitimate interest of the university that requires it to own the student intellectual property and to institute procedures for the specific agreements of particular nature.

Even the use of wide ambit claims, say for example, for postgraduate students only is better seen as supplementary to the agreements and should be confined, if used at all, to specific and limited circumstances. Though such a step does not guarantee validity but the chances of harmony and enforcement must increase when there is time for explanations and opportunities for true consensus. Arrangements must be made to negotiate agreements on a case-by-case basis as they arise. Moreover the establishment and maintenance of joint student-faculty panel that discusses intellectual property issues and
reviews the policies on a regular basis must be done.

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The  author can be reached at :
sam_432@legalserviceindia.com

 

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