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Make the Butterflies Fly in Formation?

An empirical study about the management of copyright created by academics in UK universities

Dr Andreas Rahmatian

University of Glasgow and Institut d études avancées, Nantes

Oxford Intellectual Property Research Centre, University of Oxford 29 January 2015

© 2015, Dr Andreas Rahmatian

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The title

S Marginson and M Considine, The Enterprise University in Australia (2000), in: R. Deem et al. Knowledge, Higher Education, and the New Managerialism (2007), p. 71:

“The first interview was with the university’s leading non-academic administrator . . . There was a kind of diffidence, in a tone of respect, as if the world of research with its various secrets was a world that he as a manager could never completely grasp. Yet there was frustration too. How could all that creative energy be harnessed so as to maximise the university’s position? The problem – as he unselfconsciously and unforgettably put it – was ‘to make the butterflies fly in formation.’”

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The title

This quote was in the context of:

Management of knowledge production in UK universities:

• (1) external funding, IP rights, spin-off companies

• (2) monitoring and regulating performance of academics’ research

That sets the scene for the framework of this empirical study on university policies on IP rights – here only copyright – created by academics in UK universities.

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The focus of the study

University policies in the UK regarding IP generated by the academics who are employees of the university

Thus: copyright, not patents or other IP rights

Copyright generated by employees of the university who are academics, not administrative personnel

Ownership question of employees’ copyright and the relationship to the university policies

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The focus of the study

The practical application and enforcement of university IP (copyright) policies

The possible (future) role of copyright in university management and university managerialism

No third-party copyright (e.g. by publishers) and dealings with that in the context of university library use etc.

No focus on the organisation of university spin-off companies and other exploitation methods of university staff-generated IP rights

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The underlying legal framework of employees’ copyright

Copyright treatment of academics’ typical output

Literary works Articles and books, critical editions, translations handouts, lecture notes, oral lectures and speeches (if

recorded), overhead slides reading lists, course booklets, distance-learning material

examination papers - University of London Press v University Tutorial Press (1916) !

Emails, memoranda and other writings for internal management, promotional material for the university and courses

Computer programs developed within research activity

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The underlying legal framework of employees’ copyright

Artistic works Diagrams, maps, charts, plans and photographs (all

irrespective of artistic quality)

Dramatic and musical works Mostly important for art colleges and conservatoires

Sound recordings and films Recording of lectures, talks, video podcasts

Originality requirement: here irrelevant whether ‘old’ UK (skill, labour and effort) or (possible) ‘new’ EU copyright originality (own intellectual creation)

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The underlying legal framework of employees’ copyright

Employees’ copyright rule: CDPA 1988, s. 11(2): Contract of service (employment contract) or contract for

services? AND Was the work made by the employee in the course of

his/her employment?

Stephenson Jordan & Harrison v. MacDonald & Evans (1952) 69 RPC 10 Delivery of lectures by an accountant outside the specific

employee’s duties The Court’s example of the university lecturer (at p. 18):

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The underlying legal framework of employees’ copyright

“The obvious case to which much reference by way of illustration was made in the course of the argument is the case for the academic professions. Lectures delivered, for example, by Professor Maitland to students have since become classical in the law. It is inconceivable that because Professor Maitland was in the service at the time of the University of Cambridge that anybody but himself, one would have thought, could have claimed the copyright in those lectures.”

Also: Noah v Shuba (1991), Greater Glasgow Health Board’s Application (1996) (patents)

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The underlying legal framework of employees’ copyright

Hence: No default rule in favour of universities as employers of

academics regarding their scholarly works Core academic work (articles, books, conference

papers, lecture notes, musical scores, bespoke computer programs for research) employee academic

Handouts, learning and teaching material, examination papers, podcasts ?

Internal memoranda, emails and other material created in the context of university management employer university

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Conducting the study

Semi-structured “elite” (specialist’s) interview, 30-45 min – eight questions:

(1) Is the documentation that the researcher/interviewer has obtained the complete documentation on the intellectual property policy of your university with regard to its employees, especially its academics? Or is there further documentation (clauses in employees’ contracts, staff handbooks and the like)?

(2) For this study, emphasis is on copyright: do you think that your intellectual property policy distinguishes between copyright and other intellectual property rights, particularly patents? If not, do you believe such a distinction would be necessary or relevant?

(3) On the basis of the documentation before the interviewer, how do you, as the university’s representative, understand and interpret the existing copyright policy for university employees?

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Conducting the study

(4) What would you think is the principal position of the university with regard to the ownership of copyright that university academics have created?

(5) Are you aware of any exceptions or rules that deviate from the principal position?

(6) What are in your opinion the purpose and the aims of the present copyright policy of your university?

(7) How is your copyright policy managed and controlled within the organisation of your university?

(8) How does the enforcement of your copyright policy look in reality? How strictly is it monitored, and have sanctions been implemented in case of breaches? Could you give practical examples that you have come across in your university?

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Conducting the study

Analysis of IP policies (obtained from the internet)

Approach by email (together with the questions, anonymity assured, both as to interviewee and as to organisation)

Contacting of “specialists” in universities, representative mix of old and new universities

Interview generally face-to-face, 30-45 min, telephone interview requested by some interviewees, no verbatim transcription of recording

Prior preparation for interview possible

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Conducting the study - reality

Study took from autumn 2011-winter 2012/13 (6 months longer)

Very sensitive topic: 32 universities approached, 8 interviews secured: (luckily) still saturation point, despite small sample

Often no answer at all, or various forms of declining to assist

IP policies often working documents; or no disclosure of IP policy or only confidential disclosure

Not always permission to record interview

Academics’ employment contracts (© assignment clauses) too confidential and impossible to inspect

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Findings: university policies and the law

Nature of the university policies Normally all-encompassing “IP policy” Definition of “IP” does not coincide with the law Different purposes of different IP rights not appreciated “Homogenous” IP policies endorsed by interviewees

Default rule: university is owner of academics’ copyright General understanding of interviewees BUT not necessarily conforming with the law: academics

are ordered to teach and research in general, not to teach/write specific texts with a clearly defined content

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Findings: university policies and the law

“Exceptions” to the perceived default rule:

No intention by university to assert copyright

Distinction between works relevant for commercial exploitation and other copyright works

Exclusion of “core academic” copyright works from the definition of “IP”

Requirement of the academic to grant an exclusive licence to the university which has claimed ownership to the copyright of the academic by default

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Findings: university policies and the law

Distinction between teaching and research materials (in relation to the latter, no copyright by university asserted)

Licences regarding teaching material granted by academic who moves to a different university

Scholarly works (core academic works): academic considered as an (authorised?) agent for the university in relation to licences with third party publishers

= Generally: questionable legal foundation or unsatisfactory practical management

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Findings: copyright exploitation and employees’ share

Employees’ share in the exploitation of copyright

Detailed rules in all policies, e.g. 90% academic, 10% university up to £10,000, 75% academic, 25% university for the next £20,000, and 50%/50% over £30,000

Practical exploitation more difficult: academics’ breach of IP policy rules are no practical consequence

Emphasis on collaboration/consensus, not top-down policing

Charitable status of university principal concern, not exploitation

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Copyright generation/administration and university managerialism

Copyright: “managing risk”

Copyright: managing output assessment of academics?

Interviews: © not yet an aspect of HR management (questions 7 and 8)

Idea of ‘knowledge economy’ and ‘knowledge management’ practices in universities as businesses in the knowledge-generating service industry

Use of copyright to generate income for the university business

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Copyright generation/administration and university managerialism

Managerialism: provides the technocratic illusion (‘imaginaire’) of seemingly rational and unquestionable managerial rules that replace substance by procedure

Measuring of staff performance: output of academics expressed in copyright (proprietary) units and assessed/priced for evaluation, promotion or retention

= Conceptualisation of the individual as a commodified/objectified human asset (‘human resource’) and uniformisation of individuals (‘butterflies in formation’) as content providers – actual content irrelevant

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Further reading

A. Rahmatian (2014), “Make the butterflies fly in formation? Management of copyright created by academics in UK universities”, 34(4) Legal Studies, 709-735

A. Rahmatian (2011), Copyright and Creativity (Edward Elgar), chapters 5 and 6, pp. 228-232, 252-256

R Deem, S Hillyard and M Reed, Knowledge, Higher Education, and the New Managerialism: The Changing Management of UK Universities (OUP, 2007)

A L Monotti and S Ricketson, Universities and Intellectual Property: Ownership and Exploitation (OUP, 2003)