Cutting edge

March 24, 2000

Do universities own copyright in materials produced by academics? This seemingly simple question opens a can of worms

The law is explicit: normally, the owner of the copyright in some work is the creator. However, if an employee creates the work as part of his or her employee duties, then the owner of the copyright is the employer, irrespective of where or when the work was created. The duties of an academic are normally couched in vague terms in the contract of employment. "You shall do such duties as your head of department directs" is a favourite phrase.

There is a legal debate on whether lecture notes, research output and textbooks are part of the typical academic's normal duties. In law, copyright in lecture notes belongs to the university; in research output it probably belongs to the university; and in textbooks it normally belongs to the academic. Whatever the legal niceties, it is clear that most institutions choose to ignore the issue and, by custom and practice, waive any rights they may have, leaving the academic who did the creating to negotiate as they see fit.

Recent research commissioned by the Joint Information Systems Committee on awareness liaison and training and carried out by the University of Strathclyde examined attitudes to copyright in a large sample of institutions. The results demonstrate a complete lack of consistency, let alone policy, and a lack of understanding of the issues.

Senior management should take a far more active approach to the management of copyright in materials created by staff. Why is this important? First, academics are giving away the copyright in their creative works to publishers by signing copyright assignments when papers are accepted by journals. They are not obliged to do this - they could license the publisher instead. In many cases the copyright may not be theirs to assign, so the assignment document may be invalid. Second, to reduce the cost of subscribing to library materials, institutions could take a more proactive role in managing and licensing copyright in materials created by their staff. But before they can do this, they will have to clarify ownership. Institutions may even wish to assert ownership of the copyright they have ignored for so long, so it is the university rather than the academic who decides where an item is published.

This is no trivial matter. There is a case under way in the Netherlands, where a group of academic staff is taking a Dutch university to court because it is claiming the copyright in the academics' output.

Students are not employees of the institution, so copyright in anything they create - assignments, dissertations, software and so on - belongs to them. But universities routinely make students sign a form when they register in which the student agrees to obey university rules. Often embedded in the clauses is one that states that the student agrees to assign copyright in anything they produce to the institution. This is legally dubious. Such a one-sided contract (the student is, in effect, told: sign this or you cannot come to the university), and the fact that the clause will be embedded in a long list of clauses the student signs up to, means it would probably be struck down in court.

The Committee of Vice-Chancellors and Principals is running a seminar on April 19 to discuss the Strathclyde research and explore the issue further. But before it can be resolved, we need more research: to assess the understanding of copyright among staff; to review contracts of employment; to obtain legal opinion on which work would normally belong to the university and which to the academic; and to assess policies on copyright in student work.

Charles Oppenheim is professor of information science at Loughborough University.

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