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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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