Ownership tussle in ivory towers

By RICHARD POYNDER

8th September 2002

A dispute over intellectual property rights (IPR) at the University of Cambridge has raised questions about academics' legal status and the increasing trend for universities to view themselves as businesses.

In July, the university's research policy committee proposed that Cambridge should assert ownership of all IPR generated by its academics, rather than treating it as the property of the individual creator. "What we are proposing is that inventions created by academic staff during the course of their employment should be owned by the employer," says David Secher, director of research services at Cambridge. All the university wants to do, he insists, is assert its statutory rights.

Indeed, the law makes no distinction between the employee of a company and that of a university. "The general rule is that if you are employed, any intellectual property you create is owned by the employer," says Gary Assim, of UK law firm Shoosmiths. "However, the law is quite strict in saying that if you are the inventor, while your employer may well still own the invention you are legally entitled to compensation if the patent becomes commercially viable."

The Cambridge proposal envisages that inventors of patentable discoveries would receive 90 per cent of the first £20,000 of any income earned, falling away to a third beyond £100,000. In addition, the university would waive its legal right to the copyright on normal academic publications.

While the proposal has attracted opposition from Cambridge academics, its scope would be similar to arrangements established by other UK universities.

At Durham, employee terms and conditions were changed 17 years ago to reflect the legal position. "The intention was to recognise that the University of Durham owns all the IPR but that we would always share the profits from patents with staff," says Peter Slee, director of corporate communications. "We have, thus far, also waived our rights to the intellectual property in academic articles, books and talks."

Universities remain generous with regard to employee IPR when compared with industry. What critics of the Cambridge proposal should bear in mind, says Dr Secher, is that while it would take ownership, the university has no intention of withholding financial reward. "What most people are concerned about is who gets the money, not who owns the thing."

But Mike Clark, senior lecturer in pathology at Cambridge, says the dispute is about who controls the products of academic research. "Being an academic is not the same as being an employee in industry. Nor should it be."

As one of the researchers behind the CamPath patent - used in leukaemia treatment - Dr Clark agreed to a revenue-sharing arrangement with Cambridge that mirrors the current proposals. He is concerned, however, that academics should retain ownership of their IPR. "I have seen patents regularly abused by companies. If this proposal is accepted I will lose all control over how my ideas are developed in industry."

The virulence of the opposition at Cambridge is partly because of the timing. Academics at universities such as Durham agreed to the changes when little thought was given to IP, or the potential rewards of financially exploiting university research.

The controversy has also raised questions about the way in which universities are reinventing themselves as businesses. "Increasingly, vice-chancellors and directors of research in universities are saying quite publicly: 'We are not just an educational institution; we are a business; and we are in competition with other businesses'," says Charles Oppenheim, professor of information science at Loughborough university and a member of a Higher Education Funding Council for England (Hefce) working group examining IPR issues in higher education.

He adds that this new commercial approach, coupled with growing financial pressure, has led universities to take an increasingly aggressive approach to IPR. What better way of easing the financial burden than by exploiting a university's intellectual capital?

Dr Secher plays down this as a motive: "What we are trying to do is bring ourselves into line with other universities in this country, and with those in North America."

These issues are equally controversial in the US, with growing concerns that by modelling themselves on businesses - and treating research-generated IPR as a potential revenue stream - universities are compromising their intellectual freedom. "Universities are different and should be different," says Corynne McSherry, author of Who Owns Academic Work?*. "It is useful to the economy that they are."

One consequence of the increasing corporatisation, she adds, is that universities focus on research most likely to deliver a financial return and so neglect important basic research. "It is vital that research takes place that isn't organised around a specified commercial goal - otherwise you just don't get the unexpected inventions," she says. "So in thinking about intellectual property policy in the university setting, you have to balance any commercialising interest against the academic freedom of professors to decide what is worth studying."

Many also fear that it is only a matter of time before universities take ownership of faculty copyright too. "Until recently, when people thought about intellectual property in academia they thought about patents - and they thought about it strictly in terms of the sciences," says Dr McSherry. "Now they are starting to pay attention to courseware, and rights in web pages, which is an issue for those in the humanities, too."

Certainly the development of web-based learning is intensifying the debate. "[Owing] to the growth of the internet, materials that academics might have originally developed to help their students internally now have the potential to be sold or franchised out," says Prof Oppenheim.

Few universities have yet thought through the implications of this, which is why the Hefce working party was established. Such matters are, however, uppermost in the minds of Cambridge academics. Ross Anderson, a reader in security engineering at Cambridge, fears that if universities took ownership of lecture notes, books would be next. "For instance, if I were to write a book based on my lecture notes - which I did a couple of years ago - the copyright would belong to the university, not me."

Cambridge dons will vote on the proposal later this year. Whatever the result, the dispute has demonstrated that while the law makes no distinction between academia and industry when deciding ownership of IP, custom and practice have. Some believe it is time the law recognised this.

"As it stands today, academics are a funny kind of employee," says Dr McSherry. "But as soon as enough money is at stake for it to be worth someone pursuing, a court is going to have to think about why professors are special - which I believe they are."

If not, says Dr Clark, they will vote with their feet. Given the low pay and declining status, he asks: "Why would an academic work at Cambridge if they were no longer in control of their own ideas?"

*Harvard University Press, 2001.