Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-26T22:44:11.990Z Has data issue: false hasContentIssue false
  • English
  • Français

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

Published online by Cambridge University Press:  02 January 2018

Andreas Rahmatian
Andreas Rahmatian*
Affiliation:
University of Glasgow
*
Dr Andreas Rahmatian, Senior Lecturer, School of Law, University of Glasgow, 5–8 The Square, Glasgow G12 8QQ, UK. Email: [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

Universities have increasingly become aware of the fact that the intellectual property (IP) rights that attach to the work of their academics could become significant and valuable assets to the university as an institution and economic organisation. The study involved analysis of the copyright and intellectual property policies of universities in the UK and the interviewing of specialised representatives of universities in relation to the policies of their respective institutions. The principal question of the study was the way in which university policies deal with the issue of ownership of copyright generated by academic staff, which proved to be a sensitive area. University policies presume that, by default, they own all work that academics create as their employees. There seems to be insufficient appreciation of the differentiated legal interpretation of the employees' copyright rule. At least in relation to core academic work (scholarly books and journal articles in particular), initial copyright ownership by the university, by virtue of the statutory employee-copyright rule, is highly doubtful. As a result of the universities' principal position with regard to ownership, university IP policies have resorted to complicated and artificial assignment and licencing provisions, with questionable enforceability.

Type
Research Article
Information
Legal Studies , Volume 34 , Issue 4 , December 2014 , pp. 709 - 735
Copyright
Copyright © Society of Legal Scholars 2014

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

The author wishes to express his gratitude for having obtained research funding for this study from the Academic Purposes Fund of the Society of Legal Scholars (SLS) and for the patience of the SLS, because the start of the project got delayed considerably.

References

Notes

1. Marginson, S and Considine, M The Enterprise University in Australia: Governance, Strategy and Reinvention (Cambridge: Cambridge University Press, 2000) p 133, quoted inGoogle Scholar Deem, R, Hillyard, S and Reed, M Knowledge, Higher Education, and the New Managerialism: The Changing Management of UK Universities (Oxford: Oxford University Press, 2007) p 71, in the context of discussion of the managing of knowledge production through research in UK universities (by way of (1) gathering external funding, intellectual property rights and spin-off companies; and (2) the monitoring and regulating of the performance of academics' research).CrossRefGoogle Scholar

2. Monotti, Al and Ricketson, S Universities and Intellectual Property: Ownership and Exploitation (Oxford: Oxford University Press, 2003) pp 297, 301, 309, 334. That study covers all IP rights, not only copyright, and looks at universities worldwide; UK universities are considered only incidentally, and interviews with university representatives do not seem to have been conducted: see ‘methodology’, p 299.Google Scholar

3. Cornish, Wr Intellectual Property: Omnipresent, Distracting, Irrelevant? (Oxford: Oxford University Press, 2004) p 45.CrossRefGoogle Scholar

4. Deem et al, above 1, p 6.

5. Townley, B ‘Managing with modernity’ (2002) 9(4) Organization 549–573 at 550, 564.Google Scholar

6. Dillow, C The End of Politics: New Labour and the Folly of Managerialism (2007) p 11;Google Scholar Deem, et al, above 1, p 14.Google Scholar

7. For a more detailed account of the different forms of managerialism and their historical development, see Deem et al, above 1, pp 6–27; on manager-academic identities, ibid, pp 102–110. On the marketisation of the education system in the UK, see Brown, R ‘The march of the market’ in Molesworth, M, Scullion, R and Nixon, E (eds) The Marketisation of Higher Education and the Student as Consumer (Abingdon: Routledge, 2011) p 11, at p 17.Google Scholar

8. Delanty, G Challenging Knowledge: The University in the Knowledge Society (Buckingham: Society for Research into Higher Education and Open University Press, 2001) pp 106–107, 116, 120–121.Google Scholar

9. Deem, et al, above 1, pp 62, 68, 77;Google Scholar McCaffery, P The Higher Education Manager's Handbook (Abingdon: Routledge, 2nd edn, 2010) pp 12, 60–61.Google Scholar

10. McCaffery, above 9, p 45.

11. See eg Mankiw, NG Principles of Economics (Mason, OH: South-Western Cengage Learning, 6th edn, 2012) p 196: externalities arise when one person's activities have an effect on the well-being of a third party (outside the contractual relationship of a seller and a buyer, for example) but that third party neither pays or receives a compensation for that effect.Google Scholar

12. Discussion by McCaffery, above 9, p 273; critically, Furedi, F ‘Introduction to the marketization of higher education and the student as consumer’ in Molesworth, et al, above 7, pp 1–4.Google Scholar

13. On staff performance management, see eg McCaffery, above 9, pp 162–178. Some aspects of such management schemes verge on the comical. At p 171, a table says: ‘Staff need to know: What is my role? Why do I exist? – As a manager you must: Develop the job role.’ There was a time when the question ‘why do I exist?’ was discussed by philosophers and answered less trivially.

14. Perhaps one of the first discussions by Rahmatian, A Copyright and Creativity: The Making of Property Rights in Creative Works (Cheltenham: Edward Elgar, 2011) pp 228, 252, 255.CrossRefGoogle Scholar

15. A nicer way of putting it is to say that ‘the university considers its staff as its most valuable resource’ or similar pronouncements: see discussion of these in McCaffery, above 9, p 160.

16. The common phrase that ‘knowledge’ is the ‘new capital’ is only a slightly different expression of the same thing: cf critical comments by Fuller, S Knowledge Management Foundations (Hartland Four Corners, VT: KMCI Online Press/Boston: Butterworth-Heinemann, 2002) p 6.Google Scholar

17. Cf Rahmatian, above 14, pp 14–15.

18. Literary, dramatic, musical and artistic works, Copyright, Designs and Patents Act 1988 (CDPA 1988), ss 1, 3–4; sound recordings, s 5A; films, s 5B; broadcasts, s 6; published editions (typographical works), s 8.

19. Blacklock v Pearson [1915] 2 Ch 376.

20. University of London Press v University Tutorial Press [1916] 2 Ch 601.

21. Independent Television Publications v Time Out [1984] FSR 64.

22. CDPA 1988, ss 3(1)(b) and (d), 3A.

23. Byrne v Statist Co. [1914] 1 KB 622.

24. Sawkins v Hyperion Records [2005] RPC 32, CA.

25. Macmillan v Cooper (1923) 93 LJPC 113.

26. Sweeney v Macmillan Publishers [2002] RPC 651 (at issue were earlier drafts of James Joyce's Ulysses).

27. See Caird v Sime (1887) LR 12 App Cas 326, HL (Sc) (Lord FitzGerald dissenting), at 337–338, 343, 345–346, which decided that a professor at the University of Glasgow could prevent the unauthorised printing and publishing of his lectures, which he delivered orally. This is not an employee's copyright case (on these see below), and it was decided prior to the Copyright Act 1911, which contained the first employee's copyright rule that was comparable to the modern one.

28. Walter v Lane [1900] AC 539.

29. CDPA 1988, ss 4(1)(a), (2)(a).

30. Ibid, s 3(1) (dramatic and musical works) and s 4(1)(b) (works of architecture).

31. Ibid, s 5B(1).

32. University of London Press v University Tutorial Press, above 20, at 608–609 for a classic statement; Ladbroke v William Hill [1964] 1 WLR 273, 277–278, 281, and other cases. The raft of recent ECJ/CJEU cases, starting with Infopaq International v Danske Dagblades Forening [2009] ECDR 16 (Case C-5/08), will arguably not have changed the originality criteria in UK copyright law substantially: see RahmatianA ‘Originality in Uk copyright law: the old “skill and labour” doctrine under pressure’ (2013) 44 Int'l Rev Intell Prop & Competition L 4–34, for a discussion of why, effectively, the traditional originality criteria of UK copyright will only need slight adjustment in the light of recent CJEU cases. For a contrary view, which presumes a significant change of the originality principles in UK copyright law, see E Rosati ‘Towards an EU-wide copyright? (Judicial) pride and (legislative) prejudice’ (2013) 1 Intell Prop Q 47–68. Both articles discuss the relevant CJEU cases. Ultimately, the question depends on which normative interpretation the UK courts will adopt. In the present context the matter is hardly relevant, because works produced by academics virtually always fulfil the originality criteria of copyright, whether under the ‘old’ or a possible ‘new’ regime under the influence of EU law.

33. Cf the Scottish case regarding compilation of information for custom-house books, maps and itineraries, Walford v Johnston (1846) 20 D 1160.

34. Ladbroke v William Hill, above 32, 286–287, 291–292; Elanco Products v Mandops [1979] FSR 46, 51–52. Where the chart cannot be drawn differently from the pre-existing chart because data and scholarship dictate so, the immutable elements would not attract copyright protection and there would be no infringement (coincidence or ‘merger’ of the ‘idea’ with the ‘expression’). Protection would only extend to the variable parts, such as the layout or colour coding. Cf also the old Scottish case Lennie v Pillans (1843) 5 D 416 at 419, for illustration. On the protection of ‘expressions’ as opposed to unprotectable ‘ideas’, see eg BentlyL and ShermanB Intellectual Property Law (Oxford: Oxford University Press, 3rd edn, 2009) pp 181–182.

35. In case of the entrepreneurial works (CDPA 1988, ss 5–8), the requirement is ‘not being copied’ (ibid, ss 5A(2), 5B(4), 6(6), 8(2)), rather than originality. For a discussion of differences as a result of this lower threshold, see Bently and Sherman, above 34, p 111.

36. CDPA 1988, s 3(2). For artistic works, recording is self-evidently comprised in the very nature of the creation of an artistic work and need not be a separate criterion, see eg CornishW, LlewelynD and AplinT Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (London: Sweet & Maxwell, 7th edn, 2010) p 462.

37. Requirement of freedom from any formality by the Berne Convention for the Protection of Literary and Artistic Works 1886 (revised 1979), Art 5(2).

38. CDPA 1988, s 1.

39. Ibid, s 11(1).

40. Ibid, s 9(1).

41. Ibid, s 9(2)(aa) and (ab). Despite initial ownership, principal directors as authors of cinematographic works are subject to a presumption of transfer of the lending right to the film producer under Directive 2006/115/EC (Rental and Lending Right Directive) to ensure the film producer's recouping of the (risky) investment; see recently the CJEU in Luksan v van der Let (Case C-277/10) [2013] ECDR 5 at paras 77–81.

42. But he does not become author, unlike in the USA under the ‘works made for hire’ doctrine; see US Copyright Act 1976, 17 USC § 201(b).

43. CDPA 1988, s 11(2). A contract of services (employment contract) that wants to exclude the operation of the rule of s 11(2) must satisfy two requirements: (1) the agreement must state that marks created during the course of the contract shall not vest in the employer; (2) the agreement must be legally effective – see Robin Ray v Classic FM [1998] FSR 622 at 638–640.

44. Monotti and Ricketson, above 2, at 193.

45. CDPA 1988, s 90. The formality requirements are as follows: assignment must be in writing, signed by the assignor. An implied assignment or licence is, however, a possibility: see eg Durand v Molino [2000] ECDR 320. For commissioned works, equitable ownership of the commissioner can be established according to the rules of equity, since the ownership rule of CPDA 1988, s 11, only legislates for the purpose of legal ownership; see Griggs Group Ltd v Evans [2004] FSR 31 at 682. According to s 90, a commissioner can compel the legal assignment from the freelance author if that author has (orally) agreed to create the work for the commissioner on terms that copyright shall belong to the commissioner, which has made the commissioner copyright owner in equity. See also Robin Ray v Classic FM [1998] FSR 622 at 640.

46. Stephenson Jordan & Harrison v MacDonald & Evans (1952) 69 RPC 10 at 17, 22, and further discussion of this case below. Whether or not there is an employment contract or a contract for services is to be ascertained in accordance with employment law rules; see eg DeakinS and MorrisGs, Labour Law (Oxford: Hart Publishing, 5th edn, 2009) p 121.

47. Stephenson Jordan, above 46. The following discussion restricts itself to the copyright aspects, not the breach of confidence issues. The case was decided under s 5(1)(b) of the old Copyright Act 1911, but the law today is the same on this point; see CDPA 1988, s 11(2).

48. Ibid, at 18, 19–20, 22, 23.

49. Ibid, at 18.

50. Correctly: ‘(1909) 25 TLR 441’; see below.

51. CornishWr ‘Rights in university innovations: the Herchel Smith lecture for 1991’ [1992] EIPR 13 at 15. Similar also in Germany: publication of research is not within the duties of a university lecturer/professor as an employee, see RojanS in SchrickerW Urheberrecht. Kommentar (München: Beck, 3rd edn, 2006) s 43, 31, 63.

52. Such activities could fall under a contract for services in addition to the employment contract, in which case the author would retain the copyright. See Denning LJ in Stephenson Jordan, above 46, at 22, with examples and reference to Byrne v Statist Company, above 23.

53. Waites v Franco-British Exhibition (1909) 25 TLR 441, 24 March 1909, CA. Waites, a lecturer, was engaged to explain the various parts of an airship on exhibition. At one point the airship exploded, and the lecturer died as a result of the burns he suffered. In a claim for compensation by the widow, the court held that the lecturer was not a ‘workman’ within the meaning of s 13 of the Workman's Compensation Act 1906.

54. Ibid, p 442, per Cozens-Hardy, MR.

55. Stephenson Jordan, above 46, at 22.

56. Byrne v Statist Company, above 23, at 624.

57. Discussion of relevant British and US American cases in the nineteenth and twentieth centuries in McSherryC Who Owns Academic Work? Battling for Control of Intellectual Property (Cambridge, MA: Harvard University Press, 2001) pp 111–143.

58. Cornish, above 51, at 15.

59. Noah v Shuba [1991] FSR 14.

60. Ibid, at 18–19, 26.

61. Greater Glasgow Health Board's Application [1996] RPC 207 at 223.

62. So also PilaJ ‘Who owns the intellectual property rights in academic work?’ [2010] EIPR 609 at 610–611.

63. Harmony and counterpoint exercises, for example, which may not necessarily be regarded as compositions of music, are a borderline case because they may be considered as teaching/examination materials and the university is in a better position to claim copyright ownership. Copyright protection as such is not normally an issue, because they will be able to fulfil the originality criterion for protection.

64. For example, in the employment contract. The legal effect of general IP policies is more difficult to assess; see the discussion below.

65. Cf Nora Beloff v Pressdram Ltd [1973] FSR 33.

66. Ethics approval by the ethics committee of the researcher's university for the interviews and data collection had been obtained beforehand.

67. The universities that kindly participated are anonymised as ‘university A, university B’ and so on.

68. On semi-structured interviews generally, see GillhamB Research Interviewing (Maidenhead: Open University Press, 2005) p 70.

69. Some social scientists refer to interviews with such ‘sophisticated subjects’ or specialists in a certain area as ‘élite interviews’; see Gillham, above 68, p 54.

70. The preference for the telephone interview seems to be rather common – see the discussion for some of the possible reasons; see also IbsenCa and BallwegJa ‘Telephone interviews in social research: some methodological considerations’ in FieldingN (ed) Interviewing, vol 2 (London: SAGE, 2003) pp 95–105, at p 98.

71. Gillham, above 68, p 102.

72. University of Aberdeen, University of Aberystwyth, University of Bath, University of Birmingham, University of Bristol, University of Cardiff, University of Coventry, De Montfort University (Leicester), University of Derby, University of Durham, University of Edinburgh, University of Exeter, Heriot-Watt University (Edinburgh), University of Kent, King's College London, University of Lancaster, University of Liverpool, London School of Economics and Political Science, University of Manchester, University of Newcastle, University of Nottingham, University of Oxford, University of Reading, Robert Gordon University (Aberdeen), Royal Academy of Music (London), Royal Conservatoire of Scotland (Glasgow), University of Sheffield, University of Stirling, University of Strathclyde, University of Swansea, University College London, University of Warwick and University of Westminster.

73. The following email is a representative answer: ‘I will respectfully decline the invitation to take part in the survey on this occasion’ (email to the researcher, 13 April 2012).

74. Email to the researcher, 31 October 2012.

75. For example: ‘Unfortunately I am due to be out of the office for a while so will not be able to assist you on this occasion’ (email to the researcher, 15 October 2012). Or: ‘I'm afraid that due to current work pressures (and the fact that I am going on maternity leave shortly), neither of us will be able to participate in it. We do, though, wish you all the best for the project’ (email to the researcher, 10 October 2012).

76. Email to the researcher, 13 December 2011.

77. Cf interview with representative of university H.

78. See eg email to the researcher, 24 October 2012. Obviously, there were several cases in which the researcher was led from one person to another in the administrative thicket of the institution, often without leading to anything (in one case over a period of a year, without success).

79. Email to the researcher, 12 July 2012: ‘I have nothing to do with the University's copyright policy nor is copyright something of any real significance in my work, consequently I am not in a position to help you with your research project.’ For a member of that university's research commercialisation team, this is rather unconvincing; even if that person may not have had some detailed knowledge of copyright, some of the colleagues with whom that person worked would definitely have had it.

80. Interviews with representatives of universities H and B.

81. The eight universities (as included in the list of universities approached, set out in 72 above) were named in the initial draft of this paper, but one of the peer reviewers raised concerns that because of the small sample of participants, anonymity might not be guaranteed. The consent of the participants in the ethical approval process should cover their consent to be named (and also the problem of the small sample was explained to them). However, it is better to retain complete anonymity, following the reviewer's recommendation, to avoid possible difficulties for the participating interviewees, given the potentially controversial nature of some of the findings in the study. In the following discussion, the participating universities will be referred to as universities A, B, C, D, E, F, G and H, to distinguish them from one another.

82. ‘Theoretical saturation’, see Gillham, above 68, at 50.

83. See eg King's College London, http://www.kcl.ac.uk/college/policyzone/assets/files/students/Code_of_Practice_for_Intellectual_Property_Commercial_Exploitation_and_Financial_Benefit.pdf; University of Manchester, http://documents.manchester.ac.uk/display.aspx?DocID=487; and University of Stirling, http://www.research.stir.ac.uk/documents/IPPolicy2010.pdf (all accessed 14 January 2013).

84. Email to the researcher, 20 July 2012.

85. Email to the researcher, 16 October 2012 (the researcher decided not to follow this suggestion).

86. Interview with representative of university C.

87. Email to the researcher, 18 October 2012, in view of the upcoming interview with university A.

88. See eg IP policy of university E, cls 1.4, 2; IP policy of university F, objectives and terminology clause (this policy is still in draft stage); IP policy (Code of Practice) of university H, cl 4; IP policy of university A, cl 1; and other policies that differ in detail, but not as to the principle.

89. What is specifically called ‘copyright policy’ is often the policy of the university in relation to copyright owned by third parties to be used by university staff in accordance with this policy, eg university H.

90. See eg IP policy of university C, cl 1: ‘Intellectual Property is defined as all outputs of creative endeavour in literary, artistic, scientific and engineering fields that can be protected either formally or informally including but not limited to all forms of copyright, design right whether registered or unregistered, patent, patentable material, trademarks, know-how, trade secrets, rights in databases, information, data, discoveries, mathematical formulae, specifications, diagrams, expertise, techniques, research results, inventions, computer software and programs, algorithms, laboratory notebooks, actual and potential teaching and distance learning material, and such other items as The University may from time to time specify in writing.’ The IP lawyer will immediately notice that some elements of this definition are not IP rights as such at all (expertise, research results), or are expressly exempt from IP protection by the law itself (eg techniques, arguably also information – ‘ideas’ in copyright; discoveries, mathematical formulae – exclusions in patent law) and as IP rights are property rights; they are created by the law in line with the idea of a numerus clausus of property rights and thus cannot be ‘items as The University may from time to time specify in writing’. Definitions of ‘IP’, for example, also in IP policy of university E, cl 1.4, and IP policy of university A, cl 1 (which is closer to the actual law).

91. Interview with representative of university H, and IP policy of university H, cls 7.1–7.6 (teaching and learning), cls 7.7–7.15 (software and databases) and cls 7.21–7.25 (scholarly works).

92. IP policy of university H, cl 5.2.

93. IP policy of university C, cl 1; IP policy of university F, terminology section (this policy is still in draft stage).

94. On that aspect, see the next section immediately below.

95. Literary work: CDPA 1988, s 3(1).

96. Catnic Components v Hill and Smith [1982] RPC 183 at 222–223, Court of Appeal: in this patent decision, patent specifications were recognised as being copyright-protected as artistic works, but copyright infringement was denied in this case. The copyright point was not appealed before the House of Lords.

97. Patents Act 1977 (PA 1977), s 1(1).

98. CDPA 1988, ss 1(1), 3(2).

99. Ibid, s 1; PA 1977, s 30(1); TMA 1994, s 22.

100. Extensive and exemplary in the IP policy of university H, cls 5, 7.

101. CDPA 1988, s 90(3); PA 1977, s 30(6).

102. For patents under the old s 30(6) of the PA 1977, the patent assignment had to be in writing, signed by assignor and assignee, while under CDPA 1988, s 90(6) the copyright assignment had to be signed by the assignor only: this rule for copyright now also applies to patents. For Scotland, PA 1977, s 31(6), applies: any assignation (the Scottish term for assignment) or grant of security must be in writing, in accordance with the Requirements of Writing (Scotland) Act 1995.

103. See eg CDPA 1988, s 11(2) and in contrast PA 1977, s 39, and the compensation rule in s 40(2) for the employee-inventor for outstanding benefit of the patent to the employer. See also the patent case regarding employees Liffe v Pinkava [2007] EWCA Civ 217, which may depart from the approach in copyright.

104. It is unclear what the exact legal quality of university IP policies is: compare in relation to the similar problem of university student rules, WhittakerS ‘Public and private law-making: subordinate legislation, contracts, and the status of “student rules” ’ (2001) 21(1) Oxford J Legal Stud 103.

105. For example, interviews with representatives of universities E, H, B and G, and the universities referred to in the following footnotes.

106. Interview with representative of university D.

107. Interview with representative of university C; similar argument put forward by representative of university A in interview (academics are far too busy to deal with the administrative niceties of the IP exploitation and do not much care about that).

108. Interviews with representatives of universities A and F.

109. PA 1977, s 39.

110. CDPA 1988, s 11(2).

111. Or, ‘IP’ in general, in accordance with the usual approach in university IP policies.

112. For example, all university IP policies in relation to which interviews were conducted; that is, the IP policies of university H, cl 5.1, university C, cl 2.2, university E, cl 3.1 and university A, cl 2.2, and the IP policy of university G, via email correspondence with the researcher. See also other policies in relation to which no interview was conducted; for example, the IP policy of the University of Bath, cl 22.3 (http://www.bath.ac.uk/ipls/legal/ippolicy.html, accessed 10 January 2013) and the University of Newcastle ‘Policy Statement on Intellectual Property’ (http://www.ncl.ac.uk/res/assets/documents/PolicyStatementonIntellectualProperty191011.pdf, accessed 10 January 2013).

113. There are exceptions in other university IP policies, but the researcher could not obtain an interview with the respective representative, for example. An exception can be found in the ‘Policy Statement on Intellectual Property’ of the University of Newcastle, above 112: ‘In the case of copyright other than copyright in computer software the University agrees that members of academic staff, in accordance with past practice, will be the owners of copyright in works produced in the course of their academic duties, provided there are no third party interests arising, for example, through a research contract.’

114. IP policy of university E, cl 4.2.

115. IP policy of university E, cl 3.2.

116. University B.

117. According to the interview with the representative of university B. The actual (draft) policy of university B could not be made available to the researcher. On that point, see also the discussion above, under ‘The Study’.

118. Stephenson Jordan, above 46.

119. Noah v Shuba, above 59.

120. Stephenson Jordan, above 46, at 18, and above.

121. CDPA 1988, s 11(1).

122. So the wording of the IP policy of university H, cl 7.21.

123. See eg the IP policy of university A, cl 2.3; the IP policy of university H, cl 7.21; the IP policy of university G, via email correspondence between the university representative and the researcher (‘Normally we cede copyright in terms of books and we may cede copyright in articles’); and the IP policy of university D (the university does not assert its right to ownership of scholarly output in relation to list of works, including ‘books, seminar papers … , journal editorships, external examination duties, invited lectures, publications of research outcomes …’).

124. An example is the IP policy of university E, cls 3.2, 3.3, in connection with University Procedures for Implementation of its Policy on IP, cl 3.1 (‘the University can disclaim ownership of resulting Intellectual Property created only with insignificant use of University Resources’. The definition of ‘insignificant use’ includes that ‘the IP has been created exclusively during the personal unpaid time of the creator’). This creates problems regarding the relationship of this clause to the legal understanding of IP created by employees in the course of employment, and even to another rule in the main IP policy of university E (cl 4.2, which gives copyright ownership to the author of scholarly material).

125. See eg the IP policy of university A, cl 2.3; and the IP policy of university H, cls 7.25, 8.1.

126. In this way the IP policy of university H, cl 7.23.

127. The IP policy of university F, terminology section (this policy is still at draft stage); the IP policy of university C, cl 1, and an interview with the representative of university C. On the question of the artificial definition of ‘IP’ in policies, see also the discussion above.

128. Interviews with representatives of universities D and E.

129. Interviews with representatives of universities C and D. As the regulation of copyright ownership is typically lumped together with patent ownership in university IP policies, one can find a rule or practice in universities with regard to patents, according to which the academic is asked to inform the relevant research and enterprise unit of the university about the patentable matter, and is also asked (if necessary in the form of negotiations) to hold back with the academic publication until the patent application is filed to preserve novelty (the policy may even require this, but that is not enforced in reality): interview with representative of university A. Copyright is in this respect obviously less critical, as it needs no registration.

130. Example given by representative of university E. In the case in question, a separate joint agreement was drawn up between the university, the academic (editor of the monograph) and the publishers.

131. The IP policy of university H, cls 7.1, 7.13, 7.21; the IP policy of university E, cl 4.

132. According to the interviewees, eg the representatives of universities B and D.

133. Interview with representative of university D.

134. Information from representatives of universities H, B and F.

135. In fact, university representatives were not always clear about what exactly would fall under ‘teaching materials’: in one case, the representative did not know for sure whether podcasts were covered, and there was no policy regarding filming in any case (but staff would resist filming of their lectures anyway); interview with representative of university H.

136. Interview with representative of university B.

137. Deakin and Morris, above 46, p 318. Teaching materials, particularly if already used, cannot reasonably be considered as confidential information.

138. For example, interviews with representatives of universities D and B.

139. Interview with representative of university H.

140. Interview with representative of university D.

141. Interview with representative of university D.

142. On this difficult issue in relation to several legal systems, see SterlingJal World Copyright Law (London: Sweet & Maxwell, 3rd edn, 2008) p 596. See also discussion by JohnsonP ‘Dedicating copyright to the public domain’ (2008) 71(4) Mod L Rev 587–610 at 591, 594.

143. Fisher v Brooker [2009] UKHL 41, paras 9, 63, 68, 78–80. On the criteria for estoppel, see Godfrey v Lees [1995] EMLR 307 at 332–334, applying Habib Bank Ltd v Habib Bank AG [1981] 1 WLR 1265 at 1285.

144. Interview with representative of university C. This procedure would not apply to software, as that is commercially more relevant to the university. The university would retain the copyright and grant the third party an exclusive licence.

145. Interview with representative of university H. At university D, academics sign publishing agreements in relation to articles and book chapters, but to not books; in the latter case, the academic is requested to contact the university, which will negotiate with the publisher directly; interview with representative of university D.

146. TreitelG The Law of Contract (London: Sweet & Maxwell, 11th edn, 2003) p 713.

147. Compare Watteau v Fenwick [1893] 1 QB 346, and Treitel, above 146, pp 716–718, and there are also additional criteria for answering ‘usual authority’ in the affirmative.

148. In either case, the copyright assignment has to comply with the formality requirements of CDPA 1988, s 90(3), to be valid.

149. Interview with representative of university B.

150. So, for example, at university H, according to the interview with the university representative. So also statement in cl 2 of the IP policy of university G, which is otherwise mostly directed at IP created by students, although it applies ‘equally to students and staff’.

151. CDPA 1988, s 90(3): the assignment must be in writing, signed by the assignor. If in relation to specific works (examples would be teaching materials and materials produced at the behest of the university, as such distance learning course materials), a court were to find that the work had been created in the course of the academic's employment, then the university as employer would indeed be (first) owner of the copyright, and the assignment would be superfluous and void, but would not harm.

152. The researcher has anecdotal evidence that such copyright assignment clauses sometimes appear in the employment contracts of academic staff, and are often crossed out by the academics signing the contract on taking up the new post – with no consequences.

153. See eg the IP policy of university E, cls 4.6, 4.10; interviews with representatives of universities D and A.

154. One university representative (university F) said in the interview that academics often do not see the reason why the university research and enterprise department exists.

155. Interview with representative of university E.

156. Interviews with representatives of universities B, H, D, C and F, the latter adding the characteristic comment: ‘academics run the show’.

157. All university representatives interviewed in this study stressed this point. The interviewee of university D said that staff had been dismissed in the past for using university IP for their own businesses: this is, arguably, a more aggravated form of a breach of the IP policy than the issues considered here.

158. Interview with representative of university A.

159. Students are often required to assign their copyright to the university, at least when they are creating commercially exploitable IP and/or involved in third-party funded research projects, see eg the IP policy of university A, cl 2.9, the IP policy of university G, cl 6; and the IP policy of university C, cl 4.

160. This can also concern university/NHS hospitals and their relationship to academic staff at university medical schools: however, this problem is usually in the area of patents and is not discussed here. But it came up in interviews, eg the interview with the representative of university F.

161. Interview with representative of university D.

162. See eg the IP policy of university H, cl 11 and Annex A8: £0–5000, creator 100%; £5001–£100,000, creator 60%, school 20%, university 20%; over £100,000, one third for the creator, school and university, respectively. Similarly, university F: £0–50,000, 50% belongs to the author-academic; above £50,000, 35% goes to the author (according to draft IP policy, cl 2.1 and interview with university representative); the IP policy of university C, cl 8.2: ‘Creator 50%, School 40%, [University IP Administration] 10%’. Often, these breakdowns of share sizes have mostly patent exploitation in mind, because this is the commercially far more important situation.

163. IP policy of university A, cls 9.2, 9.7, 9.8.

164. So the wording from the IP policy of university E, cl 2.2.

165. See eg IP policy of university H, cl 3.5.

166. ‘Public domain’ is here not to be understood in the sense of a surrender or abandonment of intellectual property rights. On this complicated issue, see Johnson, above 142, at 587.

167. Interview university representative university F.

168. For example, interview with representative of university E.

169. Interviews with representatives of universities C and A.

170. Interview with representative of university H.

171. Interview with representative of university D.

172. On this problem more generally, within the currently prevalent economic conception of society as a ‘market’, not confined to the university sector, see LegendreP La 901e conclusion: etude sur le theatre de la raison (lecons) (Paris: Fayard, 1998) pp 213–214; LegendreP Dominium mundi: l'empire du management (essais) (Paris: Fayard/Mille et une nuits, 2007) pp 31–33, 42–43, 46, 49; SupiotA Homo Juridicus: On the Anthropological Function of the Law (London: Verso, 2007) pp 64–65, 94–95, 104–105, 154–155, 170–173, 176–177.

173. Furedi, above 12, pp 2–3; GibbsP ‘Adopting consumer time and the marketing of higher education’ in Molesworth et al, above 7, p 52, at 59–60. The distinction between consumer (who merely consumes the commodified service provided) and customer (who enters into a purchase relationship with the service provider) that can sometimes be found in the literature appears exaggerated in the context of the higher education ‘service’, especially in the light of substantial tuition fees.

174. Rahmatian, above 14, pp 226–236.

175. Clear indication of this point in interviews with representatives of universities B, H and F.

176. All interviewees emphasised this point.

177. For example, interviews with representatives of universities A and H.

178. Cf interview with representative of university F: ‘not a chance’.

179. For example, interviews with representatives of universities E, B and H.

180. So the representative of university A.

181. Interviews with representatives of universities F and H.

182. Interviews with representatives of universities F, H, B and C.

183. CDPA 1988, s 11(2).

184. Rahmatian, above 14, pp 252, 263–264.