[Cc-uk] Academics are not free either...

Hector MacQueen hector.macqueen at ed.ac.uk
Fri Apr 29 04:50:55 EDT 2005


The only basis on which there could be a university claim to copyright
in a PhD - or indeed any student work in the course of study for a
degree - is contract (which might be the sponsio academica or equivalent
signed by the student at the outset of the programme).  And I think that
a leery eye might be cast on such standard forms by judges armed with
unfair contract terms legislation.
 
Hector

************************

Hector L MacQueen
Professor of Private Law
Director, AHRC Research Centre for Studies in Intellectual Property and
Technology Law
University of Edinburgh
Old College
South Bridge
Edinburgh EH8 9YL
UK
Tel (UK)-(0)131-650-2060
Fax (UK)-(0)131-650-6317
Email: hector.macqueen at ed.ac.uk
Web: http://www.law.ed.ac.uk/
Distance Learning at the AHRC Centre
http://www.law.ed.ac.uk/ahrb/distancelearning
************************


-----Original Message-----
From: David M. Berry [mailto:d.berry at sussex.ac.uk] 
Sent: 29 April 2005 09:43
To: Hector MacQueen
Cc: bernard at fong-hurley.org.uk; 'Creative Commons UK'; 'Jonathan
Mitchell'
Subject: Re: [Cc-uk] Academics are not free either...



Here is the IP department's reply to my enquiry (they are a wholly owned
by Sussex limited company): 




We are always seeking to raise awareness of the service that we, as a
company, provide, as well as general IPR information, though as I'm sure
you can appreciate commercial application of Intellectual Property
Rights, as well as our objective to raise funds for the University run
somewhat against the nature of academic research.



An interesting confession. But after a long conversation it seems that
the University *chooses* to not implement the policy of asserting
copyright at this time. For now it only sees patents as revenue
generators but should copyright become a projected revenue stream then
potentially this could change. Digital Rights Management anyone?

In answer to your question, technically yes you have to seek your
department head's permission to transfer copyright (referring to the IP
dept. if there are questions). Also as a PhD student I am currently
trying to discover who owns my thesis as the IP department claim
copyright on rather shaky grounds... I wanted to release it CC when it
is finished but clearly until this is resolved it is tricky to do so...

Cheers

David



On 29 Apr 2005, at 09:34, Hector MacQueen wrote:



Interesting but actually rather absurd if it is translated into reality.
Does the University in every individual case assign the copyright to the
employee when s/he submits something for publication? Or is there some
general grant somewhere? In either case, does Sussex know that
copyright assignments have to be in writing to be eeffective, under CDPA
1988 s 90(3)? Or are all their employees publishing stuff without any
written assignment in breach of contract?

Hector

************************

Hector L MacQueen
Professor of Private Law 
Director, AHRC Research Centre for Studies in Intellectual Property and
Technology Law
University of Edinburgh
Old College
South Bridge
Edinburgh EH8 9YL
UK
Tel (UK)-(0)131-650-2060
Fax (UK)-(0)131-650-6317
Email: hector.macqueen at ed.ac.uk
Web: http://www.law.ed.ac.uk/ 
Distance Learning at the AHRC Centre 
http://www.law.ed.ac.uk/ahrb/distancelearning
************************


-----Original Message-----
From: David M. Berry [mailto:d.berry at sussex.ac.uk] 
Sent: 29 April 2005 09:28
To: Hector MacQueen
Cc: bernard at fong-hurley.org.uk; 'Jonathan Mitchell'; 'Creative Commons
UK'
Subject: Re: [Cc-uk] Academics are not free either...



>From the Sussex University Webste:



Do I own the copyright in my own work?

The copyright in work produced in the course of University employment
is owned by the University. The University's Code of Practice on 
Intellectual Property, Commercial Exploitation and Financial Benefits 
states that:

The University owns the intellectual property in:
i. All items whether in paper, electronic or other form


created or 


devised by its staff in the course of their employment. The University
may, where it considers appropriate, assign its rights to copyright in



paper-based publication (e.g. books, articles in journals, conference 
presentations) to the member of staff who created them.
ii. All items whether in paper, electronic or other form


created 


or devised by its students of all levels:
a. in the course of their studies or in connection with


the work 


for their degrees or other courses; and/or
b. using University facilities; and/or
c. to which University resources have contributed; and/or
d. by students who are in receipt of a University bursary


or 


studentship;

Including, for the avoidance of doubt, all theses and essays, all
software and all other creations.




Maybe Sussex is a little harsher than others? Or does it point the way 
to the future? The policy changed in 2004. I am trying to find out the 
previous policy statement.

Cheers

David





On 29 Apr 2005, at 09:05, Hector MacQueen wrote:



I think the position sketched by Jonathan is generally true, although


I


would be very interested to learn of any HE institutions which claim
copyright in their employees' work. The general UK understanding for


a


long time rested on a case called Stevenson Jordan & Harrison v
Macdonald & Evans [1952] 69 RPC 10, which was taken to say that 
academic
employees could not be required to write and publish under their
contracts, so that if they did happen to do so it was NOT in the


course


of their employment and so the employment provision of the copyright
legislation did not apply. As RAE began to bite in the 1980s, and
contracts changed their content, the general understanding began to 
look
a bit wobbly; but the Stevenson case has never been further tested in
court, so far as I know.

The limited research I have carried out on this subject over the years
suggests that the copyright work which interests universities is that 
on
software, databases and educational material, especially in


association


with electronic and distance learning; and contracts of employment and
IP policies tend to lay claim to that sort of stuff but exclude books,
articles etc.

The most recent further dimension, which is very interesting from a CC
point of view, is that universities, responding to the high costs of
academic books and journals, are increasingly interested in creating
institutional repositories of their staff's work, in pursuit of "open
access" policies. In order to do that, academics need to be careful 
not
to assign their copyrights to publishers, but to retain them and then
license both their publisher and their employer to carry out the acts 
of
reproduction and publication needed for each to perform its function


in


the dissemination and preservation of material to users. A possible
role for CC licences here, especially with regard to licensing your
employer in an education and research context. But as a matter of law
it depends on the authority of the Stevenson case.

Hector

************************

Hector L MacQueen
Professor of Private Law
Director, AHRC Research Centre for Studies in Intellectual Property


and


Technology Law
University of Edinburgh
Old College
South Bridge
Edinburgh EH8 9YL
UK
Tel (UK)-(0)131-650-2060
Fax (UK)-(0)131-650-6317
Email: hector.macqueen at ed.ac.uk
Web: http://www.law.ed.ac.uk/
Distance Learning at the AHRC Centre
http://www.law.ed.ac.uk/ahrb/distancelearning
************************


-----Original Message-----
From: cc-uk-bounces at lists.ibiblio.org
[mailto:cc-uk-bounces at lists.ibiblio.org] On Behalf Of Bernard Hurley
Sent: 29 April 2005 05:37
To: Jonathan Mitchell
Cc: Creative Commons UK
Subject: Re: [Cc-uk] Academics are not free either...


Jonathan Mitchell wrote:


David Berry wrote: "Academics *technically* do not own
the copyright to their own work as they are designated as employee's
of the University, as I am sure you are all well aware, therefore the
employer owns their intellectual property . " Christian Ahlert wrote:
"almost all universities, I am aware of, have chosen to put into


their



employment contracts that they own their employees intellectual


work".



I am not an academic, but I question whether this corresponds to
general UK practice, or whether UK universities generally claim these
rights.

For example, these are the first six UK university results I found on
googling 'academic copyright university contract "intellectual
property"' :

1. Liverpool : "the University does not intend to assert ownership of
copyright in books, articles, lectures and artistic works, other than
those specifically commissioned by the University".


......



Is there an AUT position on this?



I have no idea if the AUT has a position on this. However I was 
involved
about seven or eight years ago as a NATFHE rep. in contract
negotiations with West Herts College (a large FE college). I can't
remember the exact wording but their position on copyright was more or
less the same as Liverpool University's position. At the time I was 
lead
to believe that this was more or less "standard" in the academic


world.



Bernard

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