Students and intellectual property – time for fair treatment?
A recent survey of almost 70 higher education institutions by the Times Higher Education Supplement came to the conclusion that a not insignificant amount of institutions in the UK are using "outdated" and "legally questionable" policies to claim ownership of IP created by students and that overall the study shows a "huge amount of confusion over IP rights" (Times Higher Education Supplement – 16 April 2015). Claims were also made that these policies and the confusion are potentially stifling student entrepreneurs and hindering engagement with industry.
Is this really the case? And do things need to change?
Despite the attention grabbing headlines in the THES, the survey results showed that less than 20% of the respondent institutions had policies that claimed ownership of all IP created by students during their time with the institution. So, overall more than 80% of institutions surveyed are not claiming those rights on a blanket basis and, instead, have in place policies with a variety of positions on use and ownership of student created works. That doesn’t mean that the sector is in a wild state of confusion and is perhaps merely a not unsurprising reflection of the wide variety of institutions, courses and methods of teaching that are now to be found in the UK higher education sector.
What the results of the survey do rightly highlight is the fact that policies that do claim blanket ownership or ownership in a wide variety of circumstances are legally questionable and in need of review. This is not a new concern – JISC carried out a similar survey in 2000 and also produced a Legal Investigation into Student Work and IPR in 2007 both of which reported in a similar vein – but it is all the more important now given the recent guidance issued by the Competition and Markets Authorities in March 2015 "UK higher education providers – advice on consumer protection law".
As a matter of general law, higher education institutions have no automatic statutory rights to claim ownership of IP generated by their students unlike the position with employees where the institution will normally be seen as the first owner of any IP generated by its employees. (Exceptions are, of course, normally found in IP policies for academic works such as research papers, articles, books etc where the institution does not claim ownership.) However, many do (or have previously) taken the approach with students of requiring them to sign up to a blanket assignment on enrolment or matriculation that transferred all future rights to the institution or required this where the rights were created in conjunction with staff members or using the institution's facilities or as part of wider (often grant funded) research projects.
It is entirely permissible for someone to grant such an assignment to their intellectual property and justifications for doing so in the sector often involved arguments that the institution was in a better position to protect and/or exploit these works or that it prevented the institution from being unable to exploit or use valuable works in the future when a student couldn't be traced or that it was needed to enable the institution to use the works as part of the general business of educating and assessing the student body. But certainly the paternalistic and often one-size-fits-all practices of many institutions, coupled with the fact that IP policies are often buried away in internal regulations and written in arcane language, can lead to a lack of understanding on the part of the student body and a lack of ability for them to fully exploit their potentially valuable work on their own terms. It is also potentially an unenforceable practice.
Why so? Nowadays and especially with the ever increasing burden of tuition fees, students are very much considered to be consumers and entitled to the benefits of consumer protection laws. Those laws give students a wide variety of rights – soon to be found in the codified Consumer Rights Act 2015 – but on this particular issue of student IP the Competition and Markets Authority is quite clear on its stance and on what is expected from institutions (the guidance is primarily directed at undergraduate courses but is equally applicable to other courses):
- A term that has the object or effect of changing the ownership of intellectual property rights from the position that would exist under the general law is potentially unfair
- The starting position should be that students retain their intellectual property rights in works created by them during their time studying
- Assignments of certain types of rights and/or in certain narrow circumstances may be appropriate e.g. on externally funded postgraduate research courses but only where there are sufficient safeguards to protect students' interests e.g. appropriate credit given to the student and, if relevant, benefiting from a revenue sharing agreement
- All relevant polices have to be made available to students prior to and at the time of making them an offer and again signposted at enrolment
- Policies should be written in plain intelligible English and understandable by non-lawyers
- Policies should remain the same for the duration of a student's course other than in very narrow circumstances and institutions must not reserve to themselves wide rights to vary the policy (or other relevant terms of the student – institution contract)
Failure to comply with consumer protection law, for example, by having unfair or unbalanced policies or failing to provide the necessary information to prospective students at the correct time, is likely to lead to those policies or terms being held to be unenforceable against the student body. This could arise by virtue of an individual student making a complaint, perhaps because they want to exploit their ideas with a third party, or through wider enforcement action being taken by the Competition and Markets Authority, Trading Standards or the QAA. In a time when top student experience rankings are highly sought after by institutions and bad news spreads like wildfire through social media, such a finding could also bring undesired bad publicity with much wider knock-on effects that any decision may have on the immediate case.
All is not lost though and it is still possible to craft a student IP policy that strikes an appropriate balance between compliance with consumer protection and other laws, the interests of students and the interests of institutions. But it does take time and effort to assess all likely combinations of IP generation and use (current and future), seek input from all interested groups and then disseminate the final wording. And, of course, monitor the policy against on-going trends and requirements.