Intellectual Property Rights
Effective from: May 2023
Policy Owner: Academic Board
Review Date: May 2028
Introduction
Intellectual property is the product of thought, creativity, and intellectual effort. In the course of their studies at the Northern College of Acupuncture, students may generate intellectual property (e.g. “results”) which are of some commercial value. At the present time (2023) this is unusual, but this policy addresses the issues should they arise in future.
A variety of legal rights protect applications of ideas and information that may be of commercial value. Those most relevant to the College’s activities include patents, registered designs, copyright and ‘know how’.
The law is clear that intellectual property created by staff ‘in the course of their employment’ belongs to their employer. Students are not normally employees of the College so this aspect of the legislation is inapplicable to them. Current legal opinion is that a ‘blanket’ transfer of intellectual property rights on enrolment is unsustainable. Any assignment must be done by a specific contract. HE institutions must seek to strike a balance between a duty of care to the student and a duty to exploit for the institution’s good, this balance being best achieved by selective assignment arising out of a specific contract in cases where the institution’s input is very clear. Such specific assignment also results in the kind of fairness required under the Unfair Contract Terms Act and the Unfair Terms in Consumer Contract Regulations, this legislation also having application to students. Such a position is also preferable from an ethical viewpoint, providing positive publicity for the College. The legal opinion and ethical considerations outlined above inform this Policy and its principles.
Principles
The College will:
(1) seek to strike a balance between fulfilling its duty of care to the student and exploiting intellectual property for the good of the College;
(2) protect any third-party rights;
(3) seek to make itself the ‘partner of choice’ for students, that is the organisation that students will approach first with any marketable ideas;
(4) permit students the choice as to whether to be engaged in projects requiring assignment of intellectual property rights;
(5) be clear to students on the issue of ownership in respect of all types of intellectual Property, drawing on appropriate documentation produced by our validating partner; and
(6) promote an understanding of intellectual property among students through e-learning sessions, workshops and/or written guidelines, where appropriate.
Policy on IP Ownership and Exceptions
Students own the intellectual property they generate in the course of their studies except where any one of the following conditions obtain:
The student is on placement: Organisations and companies that offer placements will usually require as a condition of acceptance that students assign to them by contract their intellectual property rights in work they create or develop while on placement. The College accepts this practice but will seek to negotiate the ‘best terms’ it can for students in advance of acceptance by the students. This is especially applicable where designs or software are involved. The best terms might be that placement students are treated as other staff in the company in respect of bonuses or royalties.
The student is participating in a commercially-sponsored research project: The structure of some degree courses may present students with an opportunity to work on a project or application with an external industrial or commercial partner which has contracted with the College to own all the intellectual property resulting from that project or application. In this case, all student-generated intellectual property will need to be assigned to the College in order that it can be assigned to the third party sponsor. Where students are required to assign their rights to a third party, they should be warned in advance that participation in the particular project requires this.
Any students not wishing to make an assignment of their intellectual property rights must be free to choose another topic in which they can retain all such rights.
The student is studying for a module or course the main purpose of which is the development of intellectual property: This occurs in such fields as product design and textile design but is not limited to these. Academic staff contribute the ideas/concepts behind the work and show the students how to carry out the work.
Any intellectual property generated is most fairly seen as the result of interaction and team working, contributions to the development being made by both staff and students and, therefore, jointly developed. In cases where the work is commercially viable, the College will seek to obtain intellectual property protection (such as a patent or registered design). In such circumstances, the staff intellectual property contribution will be owned by the College under the staff contract of employment.
The student contribution will be assigned to the College and the student will be treated as an academic staff member in respect of the benefits of remuneration. Information provided to students about modules and courses of study which require assignment of intellectual property to the College must make this requirement clear to students prior to their enrolment on the module or course of study. It should be added to the appropriate handbook using the appropriate template.
For research degree students, interview is a suitable opportunity to discuss the intellectual property position and to advise that deferred publication of all (or any part of the thesis) may be required.
The student is sponsored or employed by an organisation other than the College: Some students within this category may already be bound by intellectual property agreements entered into with their sponsors or employers. The onus must be on the sponsor or employer to make clear to the College its position on any intellectual property already entered into with the student and to enter into a further written agreement with the College which confirms who will own the intellectual property rights and who will have the right to use any resulting work.
[Sponsored = Some or all of their tuition or other costs are paid by an organisation that either employs them or has a duty to act in the interests of someone else (not the College).]
None of these conditions obtain for any courses at the College at the time of writing of this policy but these conditions are identified here in case they should apply at any time in the future.
Revenue Sharing
In cases where students are required to assign their intellectual property rights to the College, they will be treated as academic members of staff in respect of the benefits of remuneration. This requires that the revenue percentage should be the same as for staff where students carry out equivalent work, but the revenue share will vary according to a student’s contribution. The College will also seek to ensure that this principle of revenue sharing occurs where there are any financial benefits arising from work undertaken with an industrial or commercial partner.
Re-Assignment
In the event that the College decides not to exploit intellectual property rights assigned to it by students, it will on request, re-assign them to the students for their own use and benefit. In such cases of re-assignment, the College will, on request by students, support students to investigate fully the commercial potential of the students’ work and may negotiate an exploitation contract with them.
The College as ‘Partner of Choice’
Where none of the above conditions obtain, students will own the intellectual property rights in their work. Where students have marketable ideas, they will be encouraged to approach the College first as ‘the partner of choice’. We will discuss with students the risks and expenses involved in the commercialisation of an idea and the fact that the College and/or University may be in a better negotiating position than an individual student. Should students approach the College for help, the College will negotiate an exploitation contract with them which defines clearly the role and input by the College and the required remuneration. This will be done prior to any exploitation work being undertaken.
The College’s Rights in respect of Student Copyright Works
Students own the copyright in creative / scholarly work (essays, projects, dissertations and the like) which they produce in the same way that the copyright in scholarly works and journal articles etc. written by staff authors is owned by them.
If the College wishes to use a work in which a student has copyright for commercial purposes (to generate profit), this will be subject to an individual licence to be negotiated with the student, and subject to the College’s revenue sharing arrangements.
In respect of non-commercial purposes (those not aiming to generate a direct profit), the College claims the following rights in respect of students’ creative works while they are enrolled at the College:
- To reproduce, without fee, artistic or scholarly works for educational and promotional use, including but not limited to, databases, websites, academic publications, exhibitions, catalogues, leaflets.
- To borrow for a reasonable period of time, the material element of any works produced by students and to reproduce these works in appropriate format for a variety of purposes including (but not limited to) showing these works to professional statutory bodies for the accreditation or validation of appropriate degree courses.
Student-Employees
Where a College employee is registered as a student of the College (most usually as a research degree student) it may be unclear whether any intellectual property they create is qua employee (that is, ‘in the course of employment’) or qua student. The policy is to give precedence to the employee status in line with practice at other higher education institutions.
Documentation and Workshops
Documentation
Student assignment documentation used in the College will be written in simple English in order to comply with the concept of ‘fairness’ in the Unfair Contract Terms Act and the Unfair Terms in Consumer Contract Regulations. There will be both assignment contracts for students to sign and an accompanying information sheet that students see at the time of signature explaining why assignment is necessary. Only one assignment is needed for copyright-based intellectual property as, legally, copyright may be assigned in advance. A two-stage assignment is required for patents as these cannot be assigned in advance but only after the invention has occurred.
The same documentation will also appear in relevant student handbooks.
A brief resume of the College’s position on intellectual property rights will be included in any module handbooks where there is an expectation that intellectual property will be generated.
This policy will be available to students within the College’s virtual learning environment.
The College Handbook will also draw attention to this Policy.
Arbitration
In the event of a dispute about intellectual property ownership, the student can appeal to the Principal who will convene a panel to consider the case. The Panel will comprise the Research Director (Chair), the Registrar, and two senior members of academic staff, one from a course other than the one on which the student is studying. The student should appeal in writing to the Principal within 28 days of the disputed issue being identified.
