Tuesday, 11 May 2004. A Discussion was held in the Senate-House of the following Report:
Second Joint Report of the Council and the General Board, dated 29 March 2004, on the ownership of Intellectual Property Rights (IPRs) (p. 599).
Professor W. R. CORNISH:
Mr Deputy Vice-Chancellor, the Second Report on IPR Ownership seeks to express formally the recommendations of the Research Policy Committee's Working Group on the subject, the Report of which was published on 6 August 2003, and discussed here on 21 October 2003.
Last October Professor Ross Anderson was a severe critic of the Working Group's Report. He and his supporters in the Campaign for Cambridge Freedoms now claim that the Ordinance proposed in the Report under debate today is a 'draconian intellectual property policy, which will significantly curtail academic freedom at Cambridge'. On the other side, supporters of University research from industry have been asking me, why we do not simply confer IPRs relating to technology on the University, as almost all other UK universities do? They see the provisions in our proposal aimed at protecting academic researchers as messy, uncertain, and off-putting. It is never comfortable to be pinned to a double-sided target, but the fact that bullets are coming from opposite trenches gives a curious sense that we may have got things about right
I have striven on various occasions in the past to arrive at a reasonable balance between the interests of academics in IP matters and those of the University and its Departments. I was not party to the apparently open-ended proposals on the subject, which were put forward for discussion in 2002 and criticized by a battalion of speakers in this House in October of that year. In consequence, I was hauled in, with three scientific colleagues, to make proposals for a more acceptable way forward. The next debate - in October 2003, on our Working Group Report - showed that our proposals did not satisfy those who wanted no surrender of any IPR ownership to the University.
Nonetheless, the proposals attracted a welcome in principle from a number who spoke. In consequence the Council and the General Board asked me to turn the proposals into a legal form. I have done so after only a modicum of consultation with others. I stuck to this lonely road in order to avoid being unduly influenced by any side in the debate. Of course, I take responsibility for the upshot, but not in any apologetic vein. The Draft is offered as a first approximation of what the eventual Ordinance might contain. Like all draft legislation it is expected to undergo change in the light of reasoned criticism. That is what I would like to think we are now engaged upon; but I do wonder.
Most leading universities in this country already have a policy in place under which patents and other IP relating to technologies belong to the institution. They may even extend this to copyright in general, including the copyright in computer programs. There may merely be a concession, open perhaps to unilateral withdrawal, that they will not in practice claim that copyright in books, articles, and other traditional forms of copyright exploitation. This University has not so far taken so severe a position and it is not proposed to do so now.
The Second Report before you is apparently not all bad even to those who have grave objections. May I point out the following:
As I say, the proposed Ordinance aims to be complete, but it relates only to intellectual property rights, i.e. rights which prevent others from using a person's inventions, creations, signs of identification, etc., mainly in commerce. It does not deal, save in consequential ways, with the provision of physical material. Nor does it concern identification systems that do not have the character of intellectual property. It therefore does not touch domain names, any more than telephone numbers or car registrations.
There are two levels of debate this afternoon, one on the ground, the other in the air. The earth-bound issues concern the treatment of patents and other registrable rights with the object of getting technology put to profitable use. The upper air swirls around certain collateral or neighbouring rights to copyright, where the law already assigns initial title to the University.
First, the ground level debate. It starts from the question whether results and other information generated by academics is to be the subject of commercialization under IPRs at all, or whether instead the material may be placed in the public domain. Regulation 2 is intended to allow the University member or members concerned to decide which course is to be taken. It is meant as a fundamental principle. If the present draft leaves room for argument that a right such as that in databases could be used by the University to override the decision of individuals on the matter, this must be eliminated by even clearer words. The one necessary qualification is that, when the staff member wishes to see the commercialization of the subject-matter or, has agreed in advance that this shall happen, and the relevant IPR is to belong to the University under the terms of the Ordinance, there must be a temporary embargo on releasing the information. This may be necessary in order to preserve the entitlement to the right. The most important situation is over patents for inventions, where the application must be lodged with a patent office before disclosing it to anyone not bound by secrecy conditions; otherwise, under the present law in many countries, there can be no patent. It must also be possible for an academic receiving an outside grant to accept the funding on conditions as to confidentiality imposed by the grantor. If that is a condition that cannot bind academics, there will be grants that will not come their way.
Once the academics decide upon or agree to commercial exploitation, we reach the root distinction drawn by our RPC Working Party in last year's Report. On the one hand, patents and other registrable IP should belong ab initio to the University (see Regulation 4). On the other hand informal rights, notably copyrights, and confidential information, which do not require any registration, belong to the individual creators of the work (see Regulation 5). To Professor Anderson and his supporters, the draft Ordinance, as distinct from the Working Party's Report, means that for the first time the University will grab ownership of rights in inventions 'not just for the contract research staff but also for tenured academics involved in the project'.
That in my view misrepresents the overall situation. Over and over again in the carrying out of research under grants from industry, research councils, research charities, Government departments, and equivalent sources, the terms of the grant already require that ownership of resultant IPRs should lie with the University, or that the University should take steps to ensure that that intellectual property is commercialized where that is feasible. If the University does not have a legal entitlement to the core IP, it is not in a position even to inquire about commercial potential, let alone to seek royalties and divide them between staff, Department, and University or set up spin-outs with equity shares. The terms of many technical research grants bind tenured academics, just as much as contract staff, to accept that the IPRs resulting from the research belong to the University.
That is a situation that has been building up inexorably over the last two decades. The cases where, under the present rules of the University, tenured staff are not under such an obligation arise in respect of work done under the obligation to do research in our employment contracts without significant special funding. The University cannot know at present how few or how many of its staff produce research in this way. It cannot know what exploitation they help to bring about or with what returns. It cannot know what commercial opportunities staff allow to pass by, because they prefer to get on with other important things.
So: the non-grant-aided may keep all; the grant-aided can expect to share. There is no bright line between those with tenure and those on limited contracts. What then should happen about IPRs in new technology? Leave the present imbalance? Tell research funders that patents cannot be in the hands of the University; that instead every individual inventor owns the rights and they must start from there - or not make the grant? Or should we do as the RPC Working Group has proposed: first allow the researchers to decide that the information should simply be placed in the public domain; but if they opt instead to commercialize, then give the formal rights to the University - but subject to conditions? The three most vital of these conditions are: first, that the researchers' proposals for the route to exploitation should, if practicable, be followed; second, that there is to be a sharing of royalties between researchers, Department, and University or an equitable division of spin-out shares; and third, that where irreconcilable differences occur, they can be settled by separate tribunals within the University, with the courts as a last resort for those who say there will be no justice from an in-house tribunal.
The Working Group's package of proposals may sound elaborately balanced, but the business of exploiting technical ideas is often complex. I continue to believe that the proposals provide the best balance of interests on offer. For those who find it difficult to place any trust in the University, these conditions apparently guarantee next to nothing.
First, the proposal provides the University with a base for ensuring that the relevant IPRs are actually obtained. With formal rights such as patents, the process of drafting specifications and making applications is anything but costless. This, it appears, is what scientists at the university of Melbourne discovered to their dismay when that university recently moved from claiming all academic IPR to claiming none of it. Now they may sit around, each with their lawyer, laboriously hammering out licences.
Secondly, the proposal allows the University to know what research with commercial potential is being generated. It can then secure co-operation not just in registering the IPRs, but also in organizing the whole gamut of exploitation. Government expects this to happen.
Thirdly, the proposal gives the University a legal basis for its arrangements in sharing licence revenue. Among those who gave evidence to the RPC Working Group, virtually all accepted, or appeared to accept, that there should be some sharing with the University and its Departments. The main discussion was of what, in relation to royalties, the shares should be. Professor Anderson, however, maintains that the poor level of University salaries is a prime reason for allowing academics to have the entitlement to revenues. This seems to be a major motivation for his demand for academic freedom. So it is a freedom of a specific variety.
Fourthly, the proposal is in line with what a great many research funders want, notably in industry and among technology investors. One reason for their demand is the wish to avoid complicated negotiations over exploitations which otherwise they may have to carry out with perhaps numerous individuals. Many academics likewise want contractual terms to be settled smoothly and rapidly, whether this occurs at the outset of the research or after the inventive results are known. True, the Working Group's proposals leave informal rights with academics (notably rights in confidential know-how), so there will still have to be some negotiation with them in the course of securing an exploitation, whether it is going to be by sale, licence, or spin-out. It is this above all which leads people in industry to complain that the proposals will be unmanageable. In our view, there will indeed be some increased inconvenience to outsiders compared with a world in which the University simply holds all the IPRs; but this degree of complexity has to be accepted if researchers are to have some independence of position.
Fifthly, the proposal secures equal treatment. As explained, it is no longer the case that there is any bright line between tenured and contract research. Instead there are, for example, projects where some of the researchers are under contracts giving patents and other rights to the University, while others keep the rights for themselves. That can all too readily seem unfair.
Sixthly, the proposal offers some hope of fair treatment to those who assist, as distinct from those who lead. Professor Anderson claims the right of the initiator of research to lay down what division of spoils, if any, there should be. The system of referees within the University, which anyway he thinks is likely to take a pro-University line, is also disparaged as likely to stir up claims by students and post-docs. Instead, they ought simply to take whatever is allowed them and shut up.
[At this point the Deputy Vice-Chancellor asks that Professor Cornish conclude his remarks, given that he has run out of time]
My other remarks were to be addressed to the upper reaches of anxiety, and the problems relating to the various types of rights related to copyright. One point I wish to stress about them is that these are rights which are already owned by the University. They are not being taken away by this proposed Ordinance at all - it is the legal position now. Some of the examples which have been given of that seem to me to be extremely far-fetched and based on a misunderstanding of what these rights are. With that, Mr Deputy Vice-Chancellor, I will cease.
Professor J. O. THOMAS:
Mr Deputy Vice-Chancellor, I speak as a member of the Research Policy Committee, to which the Council referred the remarks made on the First Joint Report of July 2002 on the ownership of intellectual property rights. The Research Policy Committee set up the Working Group chaired by Professor Bill Cornish, and we are all grateful to this Group for its efforts in seeking to achieve consensus on this important, and contentious, issue.
I very much welcome the Second Joint Report now before us. This has benefited from some of the debate stimulated by the first Report and I trust that the clarification of certain issues will have removed the basis for much of the adverse criticism. I hope - and believe, from informal discussions - that the proposals as they now stand will indeed be 'broadly acceptable' across the University, as the Council and the General Board, in their preamble to the Report, acknowledge it is important they should be.
I welcome particularly three general features of the proposed regulations that in my view are paramount:
First, the greater clarity for all concerned, not only academics in the University but organizations dealing with the University over issues of IPR. Ambiguity and multiplicity of arrangements are not helpful.
Second, uniformity of treatment for research funded by research councils, charities, and the public purse through the HEFCE, and the removal of inconsistencies in policy between different academics. Why should there be a difference when we all benefit from being part of the University and all that entails?
Third, the assurance that academics can, if they so choose, place the knowledge they create directly into the public domain. This is very important. Others will believe that the best way forward is to protect their ideas, where appropriate. In these cases, it seems to me entirely appropriate that the University should have the first right of refusal if there is a view to commercialization.
There are one or two relatively minor matters that could perhaps be tidied up if there is an opportunity to make further amendments to the Report in the light of today's comments.
I would hope that the situation with respect to the important issue of databases, in particular databases of the sort generated during the Human Genome Project - an undisputed success - could be made clearer. And I believe, from what Professor Cornish has said, that further thought will be given to this. As a condition of funding of the Human Genome Project by the Wellcome Trust, sequences were deposited daily as they became available and the information was freely available to all researchers via the Web, to the benefit of all. I hope that participation of our academics in other such enterprises will not be compromised by issues of IPR in the University.
Regulation 3 refers to 'research undertaken by University staff in the course of their employment by the University' and goes on to refer to issues of 'time … and place where particular research results are achieved'. This seems ambiguous and likely to invite dispute about ownership of any IPR arising from ideas that materialize at weekends or while walking to work but before arriving - which in my view would be a nonsense. I would be surprised if many academics felt themselves to be 'off duty' at weekends or indeed at any other time.
The issue of IPR and short-term visitors to the University is another area where perhaps we need to pause for thought. But this is a detail.
Before I finish, Mr Deputy Vice-Chancellor, I should like to comment on the article by the Education Correspondent in yesterday's Independent. It should concern us all that this is unlikely to have done anything positive for our, Cambridge's, image. It gives the impression that the prime preoccupation of academics here is not with research or teaching or the pursuit of knowledge, but with making money, solely for themselves (out of activities carried out in University time and on University premises, and supported partly by public funds - although this was not pointed out in the article). I have nothing against the appropriate commercialization of research findings - indeed quite the contrary - but the fruits of any commercialization must surely be shared with the University.
In that article, Professor Anderson implied that academics would leave Cambridge in droves if the present proposals were adopted, 'rather than relinquish their intellectual property rights', in other words, rather than share the revenue for patent royalties with the University. This seems highly unlikely to be the case for medical and biological researchers, who are funded by charities and Research Councils that have strong guidelines about IPR. These proposals will have a minimal impact on them; in my view this impact is well worth the consistency the proposal achieves.
In conclusion, Mr Deputy Vice-Chancellor, we have in the Report before us a robust and consistent policy, which makes clear the intellectual property rights of academic staff and students while simultaneously defending academic freedom and the right to place the results of academic research and scholarship in the public domain. Failure to have in place such a policy would not reflect well on us.
Dr S. J. COWLEY:
Deputy Vice-Chancellor, first I would like to thank Professor Cornish for his efforts in drawing up the Draft Ordinance. Unlike some of the regulations discussed (and even graced) in recent times, the Draft Ordinance is refreshingly comprehensive and explicit. It provides a model for subsequent Ordinances. Indeed one might hope that the plethora of Graces approved over the past few years, but yet to appear in Ordinances, might now be formalized on similar lines. However, I hope that this particular Draft Ordinance is not graced. In light of Professor Cornish's earlier remarks, let me observe at this point that I am not a member of the Campaign for Cambridge Freedoms, and that there is more than one camp opposed to this Draft Ordinance.
In the Discussion of 21 October 2003 many arguments were advanced as to why the first report of the RPC Working Group on the ownership of IPRs was flawed. In a world-class University one might have expected these arguments to be refuted before Council proposed a Draft Ordinance based on the first Report. Are such arguments presented in the 111-word Notice by Council of the 17 November 2003? No. Can one find such arguments in the current Report? No. Why not? Should one conclude that it is because counter-arguments are as rare as weapons of mass destruction in Iraq?
While the University appears to be flourishing on its research and teaching fronts, this is not so either on its financial or administrative/governance fronts. One is tempted to suggest that this is because our research and teaching are based on facts and rigorous argument, whereas proposals such as the Report being discussed today seem to be motivated more by ideology.
In my speech of 21 October 2003 I made three points. Like many of the objections raised by others they have not been answered. It seems that Council is adopting the lowest (or should that be highest?) form of political tactic, i.e. just ignore all rational arguments, wait six months, and then try again in the hope that your opponents have got bored, or have not noticed what is happening. I apologize to the Regent House for repeating the gist of my first two points, but maybe this time I will get an answer.
My first point was, in essence, that no hard-nosed argument has been presented why the proposed change will be in the financial interests of the University. Moreover, immediately preceding my speech on 21 October 2003, Professor Newbery referred to an opinion in a Department of Trade and Industry report that 'Technology and Transfer Offices (TTOs), in the aggregate, [do] not recover their costs and that universities seeking to create TTOs should expect those offices to lose money or at best break even for the foreseeable future'. In the next few weeks the Allocations Report of the University will be published. It is not a secret that it will contain large amount of bold red ink. Particularly given the current financial circumstances, the University should therefore be cutting costs, rather than expanding in areas where it is likely to lose yet more money. At the very least this Report should be shelved until the review of the Research Services Division (RSD) is complete and a business plan is drawn up demonstrating that a change in the ownership of IPR is in the financial interests of the University.
Second, this Report, like the first, still seems to be based on the assumption that staff of the University cannot be trusted, and that entrepreneurship and exploitation are best fostered by the University (and in particular the RSD), having a monopoly. If the University believes in entrepreneurship, then would it not be better to have RSD competing with other agencies to market an individual's IPR? The moral right of the University to share in an income stream could then be protected in a similar way as at the University of Melbourne where the individual academic owns all rights with respect to intellectual property, but is under a requirement to share the revenues generated by commercialization (as observed by Professor Deakin on 21 October 2003, who referred to a Guardian article noting that Melbourne 'is big on commercialization of intellectual property'). Has the Council considered the Melbourne model? If not, why not? If the model has been considered, for what reasons was it rejected? Also, might I add in response to Professor Cornish's comments that the Melbourne model would not prevent an academic from using RSD's TTO; the Melbourne model just allows for an alternative choice to RSD's TTO. I, for one, am attracted to the model, since it seems to retain the right balance between the rights of members of staff and the rights of the University. Hence, if the Council insists on persevering with the Draft Ordinance, I would be happy to be party to an amendment based on the Melbourne model. As such, and in the interests of good legislation, would Council give an undertaking that the central bodies would help with drafting such an amendment (since this would probably take more than ten days if the amendment was to be of comparable quality to the Draft Ordinance), in a similar way that clerks in Parliament aid opposition MPs in drafting amendments to government legislation?
Professor G. R. EVANS:
Mr Deputy Vice-Chancellor, in the thirteenth century at the University of Paris a series of unsuccessful attempts was made to suppress new and allegedly erroneous ideas. Books were condemned in 1210, lists of forbidden opinions later in the century. For example, in 1270, the Bishop of Paris published a list of thirteen propositions and banned those who taught them or even said them aloud. They included the ideas that the world is eternal, that God does not know anything other than himself, and that there was never a 'first man'.1 Oxford was not entirely free of censorship. In the 1270s, Robert Kilwardby published thirty propositions which must not be taught at Oxford.2 Cambridge has had its moments of challenging the free exchange of ideas too, and this is one of them. I say that in recognition that the Cornish committee did a good job and in approval of much in Professor Cornish's careful speech just now, except for his offensive suggestion - if I heard him aright - that we are only interested in personal profit.
I often have conversations with colleagues and students, here and elsewhere in the world, in which we explore ideas. Sometimes one of those ideas germinates and we go off our individual ways to write an article or a book. Or we might choose to collaborate. That is the core of academic freedom, the freedom to lead the life of the mind and follow where insight and inquiry lead. That freedom requires the utmost vigilance in its defence and I am not sure the proliferating appointees to the operation of the swelling Research Services Division necessarily understand that, or how utterly irrelevant their activities are to the work of a high proportion of the academic staff and students of the University.
Why are the central bodies doing this? What is the driver? It is the wish to make money out of the intellectual endeavours of employees of the University. It is the desire for control. It has nothing to do with freedom to think, explore, and write. It is not enabling but restricting legislation which is before us.
The one thing we can be quite sure of is that they will make a mess of the whole thing. Please will the Council-in-reply tell us who drafted this? Patches of the prose have that unmistakable Old Schools stamp; other patches look as though a competent legal draftsman may have had a hand. This is too important for amateur drafting, so please may we have the provenances made clear? Let me give some examples of potential minefields in the woolly use of language. Regulation 2 refers to 'normal academic practice'. Doesn't that need defining? 'The time and place at which the nub of the research is realized can be significant evidence of what is within employment' (Commentary on Regulation 3). I shall ask the publisher to make sure that the nub of my next book is not realized within office hours then. And scientists, hold your breath and wait until the clock has struck 5.00 before crying 'Eureka'. 'Confidential know-how' (Regulation 5). How am I going to 'foster' religion, education, learning, and research as Statute D requires if I have to decide which know-how is 'confidential' before imparting it to a student under his 'terms of enrolment'?
And while I am on that subject, the entrapment of students in this net is not acceptable. The University does have some automatic property rights in the intellectual productions of its employees, but it has none whatsoever in the work of its students. Who is paying whom here? Note the use of that phrase 'terms of enrolment'. We admit students and they accept places. Apparently not any more. When new students arrived we used to matriculate them according to Statute G. Matriculation made them members. As members of the University they were subject to the Statutes and Ordinances. That is how we did things until these 'terms of enrolment' were invented. Now (Note on Regulation 11) they are to 'accept to become students of the University' on condition that they 'accept that they must give such undertakings if they are sought', as they will be of some students not others, so it will be inequitable as well as unconstitutional.
And surely this will mean that the examination of a Ph.D. Degree may be deferred, and a doctoral student wishing to move on to a Junior Research Fellowship may find his way blocked, because he can give no account to the appointing committee of the nature of his work and what he proposes to do in the period of a Fellowship if he is awarded one? The University will have six months to move on this (Regulations 17 and 18). Hardly fair on a graduate student with his way to make.
Regulations 23 and 24 seem confused. Where is the right to have a say in the terms of a contract affecting one's own activities? Remember Mike Clark's speech on the way a contract to which he was not a consenting party arranged from him to be required to keep travelling to the USA? (Reporter p. 126). Committing the University is one thing and committing an individual academic without asking him is quite another. We are employees not slaves.
Students of medieval universities know that the business of the granting of teaching licences was quite hot stuff then. Control of the ius ubique docendi could easily rouse protest on the scale of the IPR proposals here. Look at Regulation 26 which allows a capricious Faculty Board to hand your lifetime's work in preparing teaching materials over to others if it feels in the mood. There is no indication that you are to have any control over the way they are used. I am glad my kind of stuff can best be taught live with a piece of chalk. I may even choose to discuss with my students those opinions banned in the thirteenth century.
1 Ignatius Brady, 'Background to the condemnation of 1270: Master William of Baglione, OFM', Franciscan Studies, 30 (1970), 5-48.
2 Robert Kilwardby, De Ortu Scientiarum, ed. Albert G. Judy (London/Toronto, 1976), p. xii.
Mr J. P. SKITTRALL:
Mr Deputy Vice-Chancellor, there are some notable issues affecting students contained within this draft Ordinance. Regulation 11 provides for the arrangements for income sharing to be the same for students as for University staff, which is quite appropriate (I assume the mention of alternative 'previously agreed terms' is intended to refer exclusively to terms agreed before the draft Ordinance takes effect).
However, whilst monetary questions are questions that should be answered properly, they are by no means the only issue.
It should be noted that Regulation 2 is not applied to students. At first sight, this might not seem a major omission; however, there are specific aspects of 'normal academic practice' that apply to students but might be deemed to conflict with other regulations. For example, how might a confidentiality requirement affect publication of a thesis? It might be acceptable for an academic with an established position to have an additional delay of one or two years before the publication of some endeavour; for a student, however, the consequences of having to wait for that long could include a serious effect on the next stage of a career. In the context of the remarks made by Dr Mike Clark on 21 October 2003 regarding the Research Services Division's entering into an agreement that could see the University required to restrict access to student theses, it is insufficient simply to claim that such an effect is not an intention of this draft Ordinance.
I wish further to consider the more general question of the imposition of obligations upon students under this draft Ordinance. A number of contributions to previous Discussions on intellectual property (and indeed the final note appended to the Report we are discussing today) have questioned the principle of it being possible to impose on staff the obligations regarding intellectual property that are proposed. If there can be doubt when considering the advisability of such an approach with respect to staff, then surely there must be more doubt concerning its advisability with respect to students? The specification of terms of employment for a paid employee is somewhat different from the specification of 'terms of enrolment' for a paying student.
Moreover, is it really possible that, in the case of 'a student who refuses to sign' an agreement and who is prevented from taking part in a particular project, 'the assessment of her or his academic performance' will be unaffected? I suspect that many students choosing a project in which there is an element of assessment will take into consideration how best to demonstrate 'her or his academic performance' to an assessor.
(As an aside, the introduction of a phrase such as 'terms of enrolment' seems rather questionable. The legal status of the Statutes and Ordinances as subordinate legislation is covered well in two articles by Simon Whittaker in the Oxford Journal of Legal Studies (Vol. 21, No. 1 (2001), pp. 103-128; Vol. 21, No. 2 (2001), pp. 193-217); note should be taken of these, and therefore using a phrase such as 'terms of enrolment' may in fact bring into existence a contract not previously present, probably the opposite effect to that intended.)
I should like now to make two specific points about Regulation 27 of the draft Ordinance.
The first point regards the application of the claim of the University of sole entitlement to the use of its name and arms, where the usage suggests connection with the University. It seems that, for example, University societies (registered or otherwise) could be affected by such a provision. The response I received to a query about the current situation for societies noted that usage is not currently regulated formally, but that it has been customary for societies to use the name and arms of the University in appropriate contexts. It does not seem that there is an objection to usage such as this by parties other than the University, and it seems likely that the possible consequential effects of this regulation in that respect are not intended.
The second point regards the usage of the University's arms by University staff commercializing their intellectual property rights under Regulation 5. I should be rather surprised if it were acceptable for a member of an institution to use that institution's arms for commercial purposes not strongly connected with that institution, and wonder what assistance the College of Arms might be able to give if consulted on the matter.
To finish, I shall give some overall personal opinions. I must remark that I do not agree with the principles regarding the ownership of intellectual property rights on which this Report and annexed draft Ordinance are based, and hence my preference would be that this proposal not proceed at all. I agree with Professor Ross Anderson's dissenting note and his view that Grace 6 of 21 March 2001 should be repealed, along with his third recommendation made at the Discussion on 21 October 2003 that intellectual property owned but not exploited by the University should in due course revert to its creators.
Lastly, I am slightly concerned about the level of examination that has allowed a draft Ordinance to be published containing repeated instances of 'her or his', a formula that clearly would be unnecessary as a result of Statute K, 4. If such an unusual formula can have passed unnoticed into print, might it not be advisable to check this Draft Ordinance again for unintended consequences?
Dr D. F. MOORE:
Mr Deputy Vice-Chancellor, following Professor Cornish in his introduction I would like to make an earthbound comment. I would like particularly to speak in support of the note of dissent that Professor R. Anderson made in the Report on 31 March 2004. There is one comment that I would like to make in support of a relatively liberal IPR policy in the University of Cambridge.
The main point I wish to make is that the direct costs of administering the proposed policy are very high and there are also additional costs associated with a tight policy, including the extra salary that is necessary to attract and retain academic staff.
I support the policy of giving the inventors the largest possible say in how their IPR is generated and exploited. In particular, as the previous speaker has outlined, in the options there should be the freedom to choose whether to file and license patents through the Research Services Division or independently.
The schedule on p. 606 of the Reporter for the division of net proceeds from an invention is quite clear. Certainly in my research, which involves the development of new hardware, it is also clear when the University has been involved. So you might make an invention in the bath but you realize it in the clean room and your presence in the clean room is logged on the computer.
Following Professor Cornish's category of research without significant special funding I think many staff are in this position making small inventions. I would estimate about a hundred, but they are a silent majority and many will remain silent while they're waiting for promotion. A liberal policy would allow the inventors to proceed with and try to exploit small inventions which would not necessarily merit the attention of the Research Services Division. Exploitation is quite complicated, it includes placing project students with the company, access to the manufacturing facilities, and that sort of category where the inventor is much better informed than Research Services Division can hope to be on small things and where specialist IPR companies or lawyers might have particular advice that should be bought in. Of course those costs would be set against other cost before the conventional division of royalties as outlined on p. 606.
Granting this freedom is very interesting to independently minded research staff, both contract staff and faculty. They would tacitly accept a lower direct salary because of this employment condition. In fact if I look back over twenty years if I had not done anything on commercializing patents it would have been more effective to give extra undergraduate supervisions at £20 per hour but I think by trying to exploit things it makes the supervisions more active.
So in summary the more liberal policy would let the academics choose to go through RSD or through other agencies but the exploitation routes and financial arrangements would be made quite clear.
Mr N. M. MACLAREN:
Deputy Vice-Chancellor, the original Cornish report was balanced and well-received, and the hope of almost everybody was that this Report would be grounds for compromise. Upon an initial glance, it would seem to be that - but, upon a closer reading, it seems almost designed to inflame many of the people who spoke last time. The problems are not with its principles, which I believe are acceptable to most of the staff of the University, but with its details.
There are certainly injustices in the current scheme, and it would be excellent to reduce them, as well as to improve the ability of the University to generate income from intellectual property. Unfortunately, this proposal would merely replace some injustices by others, perhaps more serious, and not help much with the generation of income.
The problem with this Ordinance is not how the Regent House or even the current Council will interpret it, but how the courts would, as it is intended to become a major part of our conditions of employment. This is made worse by the very bad experiences that many of us have had in the past and, I am afraid, by the recent behaviour of the Council and University administration, leading us to be a little sceptical of claims of benevolence and to inspect the fine print very carefully.
As it stands, I doubt that there is much chance of it being accepted by the Regent House. Even if it were to be, there is a significant chance of a legal challenge to it, on the grounds of it being a degradation in our conditions of employment, in it being unreasonable discrimination against certain categories of staff, and in being contradictory to natural justice. In fact, I am certain that those grounds will cause some staff to either refuse to accept it or to not co-operate in other ways, unless the flaws I am referring to are fixed. This would lead to the University being either forced to accept their position or to threaten them with legal action. That is clearly not intended.
The issues certainly start in misunderstandings of how intellectual property is developed in this University. Avoiding this sort of error is precisely why we need more planning to be done in the open, with comments invited from all, as I suggested should be done in the Discussion of 21 October 2003 on the first Cornish report. If this Report had been drafted openly, many such misunderstandings could have been resolved in advance.
Some people will say that the correct forum is this Discussion, but I cannot remember a recent example of when the Council has modified a proposed Grace in response to comments made in the Discussion on its Report, though there are some examples of when it has withdrawn a proposal for reconsideration in the face of strong opposition. This applies even when the Council agrees with the comments, as in response 4 of the Notice of 16 February 2004 on the appointing arrangements for certain academic-related offices and analogous unestablished posts. I welcome Professor Cornish's statement that this will be different.
I shall now move on to specific points. The confusion starts with Regulations 2 and 3, which refer to the 'results of any research' and 'where intellectual property rights arise from research'. What about an introductory guide to recommended statistical techniques or to the standard notation used in a research area? Or someone who writes an administration tool for Linux? Are those 'research'? Because, if they are not 'research', these regulations give the author no rights.
That does not matter much for Regulation 3, because such rights are given by Regulation 5, but is confusing. What is much more serious is the interaction between Regulations 2 and 6; this is described below.
In Regulation 6, exception (a) is very intimidating indeed. It refers to 'the administrative and managerial purposes of the University'. Would this be interpreted as including electronic mail and computer administration? In which case, Exim, msntp, and many other Cambridge-developed utilities could not simply have been put into the 'public domain' by their authors. In fact, such an interpretation would require staff to seek permission to work with most open software projects, such as OpenBSD, MPI, and Debian.
But it then goes on 'including advice to students other than teaching materials', which brings in all the introductory guides written by staff that are not associated with a specific course. Guidelines on the use of statistical techniques, recommended experimental practice, advice on how to use computers - the list is endless. Most of that is precisely the sort of thing that staff should have the right to publish and make freely available, as has traditionally been the case.
I mentioned the interaction between Regulations 2 and 6. If 'research' in Regulation 2 were interpreted restrictively, and 'administrative and managerial purposes' were interpreted widely, then Computer Officers and similar staff in the University would have almost no rights, even to release their intellectual property to standards bodies and similar public consortia without permission, let alone being allowed to take copies of their own code with them when they leave to work for another university.
Perhaps I need to reiterate that the current situation is completely different, provably so, and such a reading of this Ordinance would imply a major degradation in our conditions of employment and unreasonable discrimination when compared with other staff doing comparable work. Yes, we really do publicize our intellectual property in the ways described above. This University does not need a public row, let alone a legal challenge, over discrimination against a minority of its staff.
Regulation 7 is non-discriminatory but equally bad. How many authors nowadays write a document in longhand or typescript, and send it to be typeset? Almost all write in a program or language that includes typography, such as Microsoft Word or LaTeX; some people have difficulty in even sending a plain text file via electronic mail! And, of course, almost all Web pages are mixed typography and text. We now have the situation where the initial state of most documents produced by most staff would be that the author and the University each own the copyright in two different and effectively inseparable aspects of the source! This is even worse than the situation that was described to be so impractical for patents.
This is clearly an oversight, caused by using terminology that was appropriate in the first half of the twentieth century, but is not today. The phrase 'the typographical arrangements of published works' is the main problem, but similar problems arise with the use of the increasingly common feature of microphones and even cameras attached to workstations. It would mean that University staff would need permission to allow people outside the University to record and copy a video-conference of one of their seminars, or even a conference call using their workstation as the audiovisual interface.
Regulation 11 seems unreasonably draconian. It is reasonable to constrain a student working on a joint project not to compromise other people's intellectual property, but it is not reasonable to require a student to sign away individual rights. There will also doubtless be students who are ethically opposed to any form of privatization of intellectual property, and they should not be discriminated against. This section needs modification to make it clear that students will always have a free choice, and suitable alternative projects will always be provided.
Regulation 20 is good but contains a flaw, in that it would allow a minor inventor to hold a major inventor to ransom; it would be far better for disagreements to be settled through the appeal mechanism.
I cannot see why Regulation 26 is so restrictive; it seems to me far better for all concerned that the University should have such a right for internal use of all copyright material produced as part of University employment, with no exceptions. I know of very few creators of copyright material who have any objections to that.
Regulations 28 to 35 look reasonable, until one realizes that a typical dispute will be between the creator of some intellectual property and the University. If the dispute is because an individual in the Technology Transfer Office or elsewhere has behaved against policy, there is no need for an appeal - a simple referral to that person's manager should sort the situation out. Such appeals will be normally due to a dispute over either policy or its administration, including when the creator disagrees with the way that the University is interpreting this Ordinance.
The Council is the principal executive and policy-making body of the University, and the Registrary is the principal administrative officer of the University, under the direction of the Council. They are therefore responsible for setting and administering policies such as the interpretation of this Ordinance. Yet Regulations 28 and 31 give the Council and Registrary the powers to appoint the Referee and Appeal Tribunal, more or less as they wish.
This appeal mechanism is worthy of the Poldovian Ministry of Justice.
Mr R. J. DOWLING:
Mr Deputy Vice-Chancellor, I shall restrict my comments to the issue of software. This should not be interpreted as approval of the Report on other issues.
As all are aware, there has been a series of previous Discussions on Intellectual Property Rights in which the issue of software was raised. Did the Council sleep though them? The Discussions have made the concerns of non-research staff very clear and yet none of those concerns seem to have been taken in to consideration.
The majority of the software written in the University comes from non-academic computing staff who are certainly not formally engaged in any research. In the Discussion of 15 October 2002, a number of those computing staff - including the Director of the University Computing Service - asked that University staff of all classes should not be prevented from releasing software under a free licence. And yet in the Report we discover that paragraph 6 explicitly restricts authors' rights to software developed for administrative purposes and that paragraph 11 restricts students' rights to the software they write.
If I write a tool to assist in the administration of the University am I not allowed to give it away because I have not done any research?
How much and what manner of interaction is needed with a supervisor engaged in research before a student's code cannot be released without the University being consulted? I trust the proposed changes to students' matriculations will be more precise than this Report.
I can hear the Report's authors now. 'Oh that's not we meant. You're being too literal.' Am I? Would it really have hurt the Report to have been more precise? Students and administrative staff do not have the resources to engage the Research Services Division in a dispute; the odds are stacked very heavily against us in any arbitration. We have no choice but to read the text literally. And as we read this Report we see that it makes life no better for us than its predecessor.
Immediately after her appointment, the Vice-Chancellor called for a rebuilding of trust between the academic and administrative branches of the University. By ignoring our concerns raised at previous Discussions this Report has seriously compromised that effort.
Mr M. V. LUCAS-SMITH:
Mr Deputy Vice-Chancellor, I speak in a personal capacity as Web developer in the Department of Geography. Although my work involves maintenance of departmental and related websites, much of my work separately involves the writing of website management-related software which is potentially of generic use on any number of websites of various types.
The nature of the Report before us is such that different aspects will be of relevance to different staff depending on their circumstance. As such, there is only one aspect of the Report I feel able to comment on, but an important aspect to many nonetheless. This is the proposed University ownership of 'works created for the administrative and managerial purposes of the University', although I notice website developers will also lose their copyright entitlement to artwork produced for websites they work on. Much has been said already of the intention to equalize treatment for different classes of staff. Those administrative staff who create IP are apparently not included in this.
For my own part, I am in the relatively unusual position of writing software for predominantly administrative use as (currently) a member of the Assistant Staff. Intellectual Property regulation, however, is of relevance to any software developer in the University, irrespective of the nature of their employment. In defining 'software' this can refer to anything from a couple of lines of code to large projects such as accounting systems, the like of which we are all too aware.
Much of my own work is highly dependent on the so-called Open Source model. In brief, this is a system whereby software written to this licensing model remains available freely and can be maintained by global communities of programmers in the common interest, because, unlike much commercially released software, they have access to the raw code. Such software is often considered to be more secure - because of the scrutiny afforded by direct access to the source code - and highly cost-effective. The University and its employees (myself included), make heavy use of open-source software, both in administrative and research contexts, benefiting hugely, both in financial and other respects, from this model.
In addition to usage, the other side of this model is that users of such software are able to contribute to, and most crucially, release such software. Indeed, at this very Discussion are several well-respected authors of extremely popular software used in thousands if not millions of installations world-wide. This is software they have written on the University's time, predominantly for University use. But the result of contributing this software into the public domain has been that many more people have been able to develop, maintain, and improve it, well beyond the resources which the University could apply alone, with the corollary that the University can then use these improved versions.
In other words, the University has experienced, and continues to experience, direct benefit in allowing its employees to release software, written using public funds, into the public domain. The proposed new policy promises to endanger this system.
It is imperative that the new policy allows, and makes totally and utterly explicit the right of, software developers to release such work into the public domain (unless of course there is a grant restriction to the contrary). This needs to apply to writers of both research-focused and administrative software.
Furthermore, this must be possible to achieve with minimal, if any, bureaucracy, as has historically been proven to work. There is no need to change the current system, which retains with the writer the ownership and hence the dignity of choosing whether publicly to release or to commercialize their work.
I have yet to hear of any sensible reason why developers of predominantly administrative software should now start to lose out. Indeed, the policy is divisive in making a distinction between software works written for research purposes against that written for 'administrative and managerial purposes'. Such a division requires justification, so I here request it.
No mention is made as to the possibility even of whether such software works could be placed into the public domain, nor of the process, if it were to be allowed, by which this might be achieved. This is a spectacular omission.
Software development of this nature involves the work of many people submitting code ranging from merely a few lines up to a complete project. Bureaucratization of software release, as having to make constant requests to RSD would ensue, creates considerable difficulties for developers, as it becomes increasingly important, as a program matures, that patches and new features can be released publicly and quickly so that they do not have to be re-created every time a new primary version of the software is released.
That the Research Services Division, the presumed promoters of this policy on behalf of the Government, should understand the nature of software development of this nature is hardly to be expected; after all, they are not specialists in what we do. (The same argument might be applied to other areas of generation of intellectual property and research across the University, but that is a debate best left for others more informed than I.)
The draft policy would result in the creation of an environment which many software developers in the University may find unacceptable. Many will find the terms under which they release software are to become as restrictive as those in much of the private sector and, as such, may reconsider their reasons for choosing to stay in the public sector at a considerably lower salary level. Given that the current freedom assigned to writers of intellectual property such as this is one of the main benefits that attracts some of the brightest minds to this University, this really is not a matter that the University can ignore if it chooses to press ahead with this policy unamended. This argument can be more generally applied to other aspects of the policy; yet, again, this issue is barely discussed.
What is needed is a policy which retains and states the right of software developers of all kinds in the University to own and make the decision of how their software is released, and if they choose the public domain model, to state that this can be done without recourse to extensive procedures other than through the perfectly successful line management model that currently exists.
In finishing I would like to remark briefly on matters of process. The original policy proposal of 24 July 2002,1 which was a mere six sentences, has become a proposal of several pages and yet still, as outlined by the number of speakers today, contains problems which will need to be resolved. The question has to be asked how on earth the central administration felt that policy on an area as complex as intellectual property could possibly have been regulated within six sentences. That did not inspire confidence. Whilst the process that has led to the present Report is a vast improvement, it is clear that there is much more work to be done on its content. Let us hope our warnings do not go unheeded.
1 http://www.admin.cam.ac.uk/reporter/2001-02/weekly/5894/15.html
Professor R. A. L. PEDERSEN:
Mr Deputy Vice-Chancellor, thank you for this opportunity to comment on the Draft Ordinance on intellectual property rights. I conduct research in the area of human embryonic stem cells and, in addition, I am responsible for facilitating the efforts of the University's burgeoning stem cell research community. I believe that we can view the subject of stem cell research as an object lesson for recognizing the beneficial impacts of the proposed IPR Ordinance.
In my view, the principal impact of the proposed Ordinance is its effect of assuring academic freedom. By clearly affirming in Regulation 2 the fundamental entitlement of researchers to place their work in the public domain, and by placing the responsibility of determining when and what to publish in so far as possible in the researcher's hands, the proposed Ordinance affirms the central covenant of academic freedom between the individuals who are carrying out creative work and the University under whose auspices they work. In my view, the freedom to determine when and what to publish is particularly important for the stem cell field. This affirms the importance of transparency of the information that is revealed by stem cell research, so that the international community of researchers can expedite their efforts to benefit patients who may be healed through future successes in this field. In this regard, I believe that academic transparency (which is the antithesis of research conducted in the private sector) is as central to the stem cell field as it has proved to be in the Human Genome Project.
In addition to ensuring academic freedom, the proposed Ordinance also seeks a balance with the needs for securing the necessary investments to bring fundamental discoveries into useful form. This can only be accomplished through the additional contributions that are justified and secured through IPR. In order to deliver on its fundamental promise, the stem cell field must, in the future, seek a substantial commercial involvement in the perfection, scale-up, and delivery of any therapies that emerge from fundamental research. This is ensured under the proposed Ordinance, which clarifies the University's and the creative individual's distinct responsibilities in the matter.
Finally, Mr Deputy Vice-Chancellor, I would like to acknowledge the basic reason for the existence of intellectual property rights, which is the potential for new discoveries to improve human life and to protect the environment, that is, to benefit the community as a whole. I believe that the proposed Ordinance strikes an admirable balance between protecting the rights of the creative individual, while ensuring that their creations accrue to the benefit of humankind through useful applications that may emerge from them. Therefore, I endorse and whole-heartedly support the proposed Ordinance as the basis for a sound University IPR policy.
Dr P. HAZEL:
Deputy Vice-Chancellor, my concerns are the same as those of several previous speakers.
Linus Torvalds, the creator of the Linux operating system, has said that software is like sex: it is better when it is free. At the discussion on this topic in October 2002 I spoke about how much open-source software the University uses, and why it was important and right that University staff should be able to contribute to the open-source software movement without let or hindrance. I know from my own experience that publishing open-source software is good for the University's public relations.
I was pleased, therefore, to read in the currently proposed Draft Ordinance the paragraph entitled 'Freedom to make research public'. It appears at first glance to give me the right to publish any software that I create, as I have done in the past with the support of the Computing Service management. Then I read on to paragraph 6, and found that: 'the University shall own copyright, database rights, and other unregistered rights in ... works created for the administrative and managerial purposes of the University'.
This creates a serious problem. The most important piece of software that I have created in recent years is Exim, a server program that delivers most of the University's electronic mail. Is the delivery of e-mail 'administrative and managerial'? It could be argued that it is. If I had written Exim under the new Ordinance, would I have been able to publish it without having to convince some bureaucratic body? In any event, the mere existence of this wording creates doubt, and lays the way open for future argument.
At this point I looked back to paragraph 2, and realized that the word 'research' is nowhere defined. Is there a generally accepted University-wide definition? I am not employed to do research, yet most of what I create is novel. Is software like Exim 'research' or 'administration', or something else? We need to be clear on this.
I should like to make two points about the remainder of the Draft Ordinance.
Firstly, is it certain that the cost of setting up and running the bureaucracy associated with administering these rules is less - substantially less - than the income that the University will receive as a consequence of their existence? I have a suspicion that it is not. Investing in product development is not risk free. Not every product is a success. Why not let somebody else take the risk, as we have done in the past? Under the current regime, the University has received many large benefactions at no cost and at no risk. The recent Herchel Smith legacy is a prime example.
Secondly, I note that there is a section of the Draft entitled 'Adjudication and appeal'. So, before the new regime even comes into existence, there is an anticipation that there will be disputes. Does it make sense to replace an amicable, working system with one where trouble is expected? Co-operation usually produces better results than coercion.
Professor O. S. O'NEILL:
Mr Deputy Vice-Chancellor, the Second Joint Report of the Council and the General Board on the ownership of Intellectual Property Rights (IPRs), published on 31 March, contains a number of welcome proposals that meet many of the objections made to earlier versions of the Report. These include measures to protect academic freedom to disclose findings and inventions, the clear statements in draft Ordinances 2 and 3 that the provisions apply only to work undertaken in the course of employment, that they are not retrospective, and that they do not apply to work undertaken as part of a consultancy.
I wish to comment on two aspects of the Report that bear particularly on work undertaken in the humanities and social sciences.
Draft Ordinance 2 states that 'University staff are entitled to decide that the results of any research undertaken by them in the course of their employment by the University shall be published or disseminated to other persons to use or disclose as they wish in accordance with normal academic practice'. This is a welcome provision, and one that will offer a robust protection for academic freedom. However, I believe that in one respect it may be too broadly drawn.
Researchers who work on and with human subjects - whether in medicine or in the social sciences and humanities - often have duties to others to keep aspects of their results confidential. As we move towards clearer codes of conduct for non-intrusive research on human subjects it will be important to recognize this point. I hope that the Ordinance might be revised to indicate that the rights of researchers to disclose results to the public are limited by their duties under professional codes, and in some cases under ethics committees' decisions. Publication in which the subjects of research are anonymized goes some way to protect research subjects, but there are cases when that does not provide adequate protection, and in these there can be no general right to publish.
The second point that I wish to raise concerns the approach to copyright in the draft Ordinances. Draft Ordinance 5 leaves most forms of copyright with 'the University staff member who creates, works out, or expresses the results subject to any third party rights which they may have previously agreed. This applies in particular to copyright and moral rights in literary, dramatic, musical, and artistic works'. This may seem unfair to those whose intellectual property - if any - is more likely to be in the form of patents, since they, unlike holders of copyright, would have to share revenue streams with the University.
I think that it is worth reminding ourselves that the reality for most academics in the humanities and social sciences is quite far from this picture of unconditional ownership of copyright. The point is not merely that royalties to those with copyrights are generally meagre - although that is true. A more significant fact is that most scholars in the humanities and social sciences see advantage in handing much of their copyright over in return for having it properly administered - usually to university publishers, sometimes to commercial publishers. It is a rare academic who finds fulfilment in administering the minutiae of translation rights, requests to reprint, broadcasting rights, and so on. Most of us are eager to find a publishing house that undertakes these chores and provides us with a fraction of any revenues that arise. In short, the situation of academics in the humanities and social sciences is already quite close to the regime proposed for handling patents - although the institutional partner is not the university but the publisher. This may not be an ideal regime but it is reasonably effective in securing the distribution of copyright material while providing some royalties to the originator. It has to be said that we are often happier with some publishing houses than with others.
I doubt very much whether members of the Regent House whose intellectual property, if any, comes in the form of patents find them fun to administer either. Nor do I believe, from the accounts I have heard, that everybody who invents succeeds in administering his or her patents to their own or others' best advantage, or to the best advantage of the public - which is after all the point of the patenting system.
I think it is time to consider the practicalities of the matter. The point of patenting is to secure time limited protection for inventors - and to ensure that the administration of patents is effective and cost efficient. The point of aligning ourselves with other universities in locating patenting with the University is to aim for a system in which inventions are actually exploited - to mutual advantage. Given that there is widespread agreement that some split in the revenue stream arising from the exploitation of IP produced in the course of University employment is fair, I believe the time has come to move on to debate the detail rather than the principle of these proposals.
Dr N. A. DODGSON:
Mr Deputy Vice-Chancellor, firstly, thank you to the people who have put an immense amount of work into revising the original proposal to produce this more watertight version.
Secondly, thank you for incorporating a time limit within which the University has to decide whether to seek IP protection on any research results of which it is notified. I would have preferred a shorter time limit than six months, because things develop so rapidly in computing that delay can be disastrous, but any time limit is useful.
With regard to the time limit, I wish to draw your attention to a problem with Regulations 17 and 18. In the case in which the University decides not to seek IP protection, the inventor is left in limbo. Regulation 18 simply says that, in this case, 'The University will seek to determine with those persons the future course of action and financial arrangements.' I understood that the reason for having a time limit is so that, should the University decide not to pursue IP protection, the inventor is then able to pursue it him or herself. The intention being that the University has first refusal on any IP invented by its officers. The current wording of Regulation 18 means that discussions could drag on for months or years before a mutually agreeable settlement is reached which allows the inventor to pursue appropriate IP protection and subsequent exploitation of his or her work, by which time the opportunity for exploitation may have passed.
Consider a hypothetical case. I invent something as part of my work for the University. I think it is exploitable and duly inform the University. The University, however, decides not to pursue an application. I subsequently choose to set up a company to exploit my invention myself. To whom does the IP now belong? If I get a venture capitalist interested, how long will it take me to get the University to provide the documentation necessary to convince him that my company has exclusive rights to exploit the IP? If my company is successful, will the University want a cut of the net income? If so, how much? Under the proposed Regulation 18, all of these questions are subject to individual and possibly lengthy negotiation with the University, over a piece of IP which it is not interested in protecting.
The proposed regulations clearly lay out the default procedure if the University does decide to pursue IP protection. I recommend that the regulations also have a default procedure for the case when the University decides not to pursue IP protection.
I propose, therefore, that Regulation 18 be changed. The second sentence should be deleted and replaced with something along the lines of 'In this case the IP reverts to the inventor.' This change is in the spirit of Regulations 3 and 4 which use the words 'initial entitlement' and 'initial right' to describe the University's claim on IP invented by its officers rather than 'absolute entitlement' or 'unalienable right'. It also makes it clear that the University is not burdened with IP which it has no intention of exploiting.
Professor S. DEAKIN:
Deputy Vice-Chancellor, the draft Ordinances which we are currently considering essentially implement the recommendations of the RPC Working Group of August 2003, namely that residual IPRs, with the exception of some forms of copyright, should vest in the University and not, as before, in the individual members of academic staff who create them. When this change was first proposed in the summer of 2002, I and others argued that it would unduly limit the autonomy of academic staff. To answer these concerns, the Working Group suggested that there should be a clear statement of the freedom of academic researchers to make their research public. That recommendation has now been embodied in Regulation 2 of the draft Ordinances. The right to publish can, however, be waived: under Regulation 9, the University may insist that staff maintain the confidentiality of research findings where they arise from externally sponsored research. One of the purposes of doing so is to make it possible for a patent application to be made in the University's name. The University may also require a member of academic staff to assign to it rights which would otherwise fall under the copyright exception, where this is necessary in order to reach agreement with an external sponsor of research.
Thus the right to publish - on the science and humanities sides alike - is to be conditional in future upon the wishes and intentions of commercial entities and other third parties, where they are in the position of supplying the resources needed for research. The University will act as their agent in suppressing publication. The dissemination of findings by a member of academic staff, contrary to an undertaking obtained by the University, is almost certain to be regarded as a serious disciplinary matter, warranting suspension from employment or dismissal. The University also intends to take powers to constrain publication by students and visitors. In their case, because there is (normally) no contract of employment, dismissal is not an option, but other sanctions could be deployed, including claims for compensation.
The job of the proposed University Technology Referees will be to resolve disputes as to the meaning and application of the Ordinances. A panel of Referees has the power, following a hearing, to issue an adjudication, which may contain a recommendation for the resolution of the dispute in question. However, as I read the Ordinances, the Referees do not have the power to dispense with the undertakings which members of academic staff have given at the University's behest, nor can they release them from legal obligations arising from an agreement to transfer IPRs to the University. Nor does it seem that Referees will be given the task of determining what an appropriate sanction might be for breach of contract or other legal wrong by a member of staff who decides to go public with their findings in breach of an undertaking.
Because the proposed policy will take effect through Ordinances, it is subject to approval by the Regent House. The decision to proceed this way should be welcomed. I hope that we can soon arrive at a text which the Regent House can accept. In my view, that should be a text which regards the right to publish as a fundamental freedom in the face of any disciplinary powers which the University might seek to exercise against its employees, students, or visitors.
I also wish to comment on the practice of altering, from time to time, the standard term written statement of employment conditions which the University issues to new, and newly promoted, staff. To employment lawyers, the written statement which the University is required by legislation to issue upon a new appointment is not the same thing as a contract of employment1. However, it is understandable that members of academic staff should think that it is, if that is what it claims to be, and that newly promoted employees should be wary of signing it, as many currently are.
The current standard form already contains clauses on intellectual property. Some versions purport to impose upon members of staff an obligation to obtain the approval of their Head of Department and of the sponsor supporting their appointment before they publish research results. Some also state that the employee is required to observe any procedures and conditions agreed between the University and the sponsor funding their research in relation to any intellectual property rights arising from that research.
It is not possible to expect the Regent House to vet new versions of the standard form written statement whenever changes are made. Nor, however, is it appropriate, in my view, to leave the drafting of these documents to unilateral decisions of the University administration. In almost every University in the United Kingdom, this would be a matter for, at the very least, consultation and, in most cases, negotiation between the University and the appropriate employee representatives. We urgently need a debate about why this University, alone of major higher education institutions in the UK, does not recognize the unions representing academic staff in matters of this kind.
1 Deakin and Morris, Labour Law, (3rd. edn. 2001), pp. 256-8.
Professor D. NEWBERY (read by Professor S. DEAKIN):
Mr Deputy Vice-Chancellor, I spoke at the earlier meeting on 21 October, but I am now on sabbatical leave. I read the Second Joint Report on IPR with some interest to see how far the concerns expressed in that debate were reflected in the new proposals. I confess that I was disappointed, and somewhat surprised that only one member of the Council dissented. As Professor Cornish said at the earlier discussion 'We were asked to estimate whether, with modifications and safeguards, the policy proposed in 2002 could become acceptable to the University', not whether the policy was sensible and justified. I would like to repeat my earlier plea that such an important change in the terms, conditions, and expectations of University staff should have been subjected to a proper cost-benefit analysis. I also said that it was a sound principle that the benefits should exceed the costs by a sufficient margin and with a sufficiently high probability, as change to governance is costly, and can undermine trust.
The costs include the very substantial cost of running the Research Services Division (RSD), the alienation of those wishing (and previously entitled) to patent, and the reduction in the attractiveness of Cambridge University to prospective faculty. I note from the Registrary's speech that he has 'agreed with the Vice-Chancellor and with Dr Secher that a review of the Research Services Division should be undertaken in the first half of 2004' and that the review 'will involve seeking the views of both internal users and of external funding partners. The review will also be asked to look at international comparitors, particularly US institutions.' It would have been helpful to have had some indication of the costs and benefits of the RSD before we embarked on this significant change.
I cannot pretend to have done this, but I am struck by the following observation. Before the RSD was established, I had to deal with its predecessor over research grants and contracts. If memory serves correctly, we dealt with some five staff (perhaps supported by some clerical assistants). The University Web page gives personnel information on the present RSD and lists 86 names, of whom some 16 are also listed in the Technology Transfer Office. Allowing for the associated overheads, this sounds like a £1m operation, at a time when the University faces serious deficits stretching into the future. The nagging suspicion I have is the University's IPR policy is driven in part by the need to justify the existence of such a large and expensive operation which seems to be growing with no proper checks and balances.
If the costs are clearly high, what evidence is there that the new policy (and the greatly expanded RSD) will deliver benefits that substantially exceed these costs? None has been provided, and one suspects it would be very difficult to provide such evidence. Let us hope the review of the RSD at least attempts this task. We do, however, have some evidence from the US, which I presented at the last Discussion but which has not been addressed in the response. I noted that the International Technology Service1 of the British Department of Trade and Industry had published a report entitled Key Lessons for Technology Transfer Offices: Viewpoints from Silicon Valley.2 To repeat my earlier citations from that report: 'All interviewees noted that TTOs, in the aggregate, did not recover their costs and that universities seeking to create TTOs should expect those offices to lose money or at best break even for the foreseeable future' (p. 3).
There is evidence to support this claim. Lach and Schankerman published a discussion paper in 2003 entitled 'Incentives and Invention in Universities'.3 To cite their summary: 'Using panel data for 102 US universities during the period 1991-99, we find that universities which give higher royalty shares to academic scientists generate more inventions and higher license income, controlling for other factors including university size, quality, research funding and technology licensing inputs.' If we think that the purpose of the university is to generate useful IPR, then the lower the tax on academics the better. Indeed, the authors found that lowering the tax rate increased the university's income so that it is doubly counterproductive to tax royalties. Much of this effect may come from attracting better faculty by a more lenient IPR regime.
One of the more striking pieces of evidence is that the median size of their Technology Licensing Offices is two professionals and that 75% of these US universities had fewer than four professionals. The median licensing income was only $620,000. They also find that TLOs are considerably less effective in public than private universities. Cambridge would seem to fall in this category. If we look at estimates from US public universities an increase in the number of TLO professionals of 10% might increase license revenues by 1.5%, or by $9,000. If that held true in Cambridge, reducing the number of TTO staff by one might cost us £4,000 in revenue but save perhaps 10-15 times this in cost.
Given that Cambridge cannot afford competitive UK academic salaries and given that housing is more expensive here than almost anywhere outside London, the implication is obvious - we should return to the pre-2001 policy that helped stimulate the Science Park and our earlier but increasingly fragile academic standing. Removing the bloated infrastructure that attends this IPR policy would also save the University money which it could better spend on its under-rewarded staff.
1 http://www.globalwatchonline.com
2 http://www.globalwatchonline.com/pfi/Display_Article.aspx?Url=http%3a%2f%2fwww.oti.globalwatchonline.com%2fonline_pdfs%2f34209X.pdf&DocID=459247&From=Standard%20Search%20Results
3 Available as CEPR Discussion paper 3916 and downloadable from http://sticerd.lse.ac.uk/dps/ei/ei33.pdf
Mr J. LANG (read by Professor S. DEAKIN):
Mr Deputy Vice-Chancellor, I regret I cannot attend in person because of my teaching duties. I am a Cambridge Angel, a Bye-Fellow of Emmanuel College, and I lecture in Entrepreneurship for the Judge Institute and the Computer Laboratory. These views are my own.
I urge the House to reject this disastrous proposal and repeal Grace 6 of 21 March 2001. That Grace hobbled the golden goose; the new proposals will kill it.
First, it will adversely effect endowment income. Why should I, as a successful entrepreneur, give money to the University, if it has already had its hand in my till? This will be especially difficult for Colleges, who will not benefit from the proposal. Indeed, this proposal could be interpreted as a direct blow, perhaps deliberate, at the collegiate nature of the University.
Second, it will lead to mediocrity. Since enterprise is to be taxed, enterprise will be discouraged. The enterprising will leave and go elsewhere, leaving only the lazy or dull behind. It will adversely effect recruitment of the best and brightest. Academic salaries are not high, and one of the attractions of Cambridge is the possibility of benefiting from the products of one's labour and invention. This is now to be heavily taxed, making the place much less attractive.
Third, it will cost the University cash it can ill afford to spare. Rather than make money, this proposal will lose millions. Virtually no Technology Transfer Office, our own included, or any large pool of IPR, has generated more income than it has cost to staff and maintain. The task is hard. Few venture capital companies and almost no early stage funds in the UK or Europe return more than conventional investments. Venture capital is a high-risk play. The University would likely get more return by putting its money on the National Lottery or betting on racehorses.
Fourth, it will poison the climate locally for enterprise, start-ups, and early-stage investment - to the detriment of the University, its staff and students, the town, the region, and the country. I will not invest in a project that would be subject to the proposed regime - such a project is so loaded that it is dead before it begins.
This scheme sets a dangerous precedent. Although the current proposal is limited in scope, one can easily see future administrations extending it to other IPR and personal income, such as book or film royalties, appearance fees, consultancy income, or even external income such as investment income. Who knows, one day they may require our gowns to carry advertising sponsorship logos.
Please reject this nefarious scheme.
Professor I. M. LESLIE:
Mr Deputy Vice-Chancellor, I would like to begin by expressing my thanks to Professor Cornish in translating the findings of his Working Party, of which I was a member, into the draft regulations we have before us. While there are surely improvements to come, some of which will be made as a result of this Discussion, we must resist the belief that such a complex set of issues can be resolved by legislation alone. Much will depend on the organizations and the people within the University who will be responsible for implementing this policy. I shall return to this.
This proposal is designed to create a transparent, fair, and self-consistent framework for technology transfer. As such, I believe it offers benefit to all parties.
The proposal benefits students. It makes it crystal clear that students own the intellectual property they create unless it has been encumbered by an agreement into which they have voluntarily entered with external funders or with internal collaborators. While this is the current policy of the Board of Graduate Studies, I welcome its enshrinement in Ordinances. In mentioning possible encumberment, the relevant regulation is simply being honest about that which already exists, and recognizing the consequent limit placed upon the regulation. The proposal also puts in place a University interest in situations where there is joint creation involving a student and an academic. The University has a fundamental duty to protect the rights of students. Without this interest of ownership, the University cannot act effectively. The suggestion that students should in the first instance fight for their rights in the Courts I find unacceptable. It is useful to compare the policy relating to students with other institutions in the UK: Oxford asserts all rights over student IPR, even copyright; Imperial and UCL are broadly in line with the proposal before us.
The proposal also benefits employees of the University by creating a transparent and egalitarian system. The majority of research that is carried out in the University is subject to IPR conditions laid down by the sponsor and for which this policy will have little impact. The major impact would be on results of research done without direct external funding. This proposal brings the treatment of such unfunded research into line with externally funded research to give consistency across all funding regimes. Moreover, many within the University who create exploitable intellectual property do not wish to be intimately involved with its exploitation. They need and deserve a well run and motivated Technology Transfer Office. This proposal benefits such individuals by giving that office a reasonable and clear footing on which to operate. The policy before us guarantees the absolute right of academics to make what they create available to all without restriction, again unless encumbered by specific agreement. There are concerns with the current draft about database rights (and other secondary rights), and there is clearly work remaining to be done in this area. But the intention is clear.
This proposal is not based on the premise that it will make the University a great deal of money. This has never been the motivation. (Universities in the US, on aggregate, probably do lose money. If one looks at institutions that we might regard as our peers - Columbia, Yale, MIT, Harvard and Stanford - the situation is rather different. But again caution is required: income is volatile.)
The real motivation for this proposal is to provide a framework for technology transfer which is clear, provides transparency, and is as consistent as it can be across research funded from diverse sources.
This brings me back to the issue of the organizations and people within the University who implement this policy, and in doing so, I would like to stand back and take a broad perspective on the University. It is my aspiration to move forward from the culture of blame and mistrust that I believe has harmed this University, and has caused us to expend a great deal of energy and time on internal matters while the world around us moves on. I sense that there is a growing collective will for change in this respect. While there are clearly concerns about the Research Services Division which will need to be resolved before we can move forward, I believe this policy, in its final form, can be a key element of a more successful technology transfer function whose aim is to enhance the impact of knowledge created within the University on the economy and society in general.
Dr J. P. DOUGHERTY:
Mr Deputy Vice-Chancellor, in the 1850s, the young George Gabriel Stokes, who had recently become Lucasian Professor of Mathematics, undertook a second job, lecturing at Imperial College (then called the School of Mines) in London. Not long after that, he became Secretary of the Royal Society, which was a further paid post. He was, of course, moonlighting, but he needed the money. He had married and so resigned his Fellowship at Pembroke, and the stipend of the Chair was not competitive. The University wisely ignored the moonlighting, and indeed could have no complaint about Stokes's performance during his long and brilliant career.
The University can, and does, very reasonably expect the full-time staff to do a full-time job, but the regime is a very liberal one. Most of us have moonlighted. A trivial example is that of accepting the fee for examining a thesis at another University. There's no harm in that, for it's an academic activity, and if we want our colleagues elsewhere to examine our theses we'd better return the compliment. In practice it seems to be generally accepted that if moonlighting is academic or academic-related work, and the officer's Cambridge duties are not vitiated, no harm is done, and no permission or report is involved. It can sometimes be very remunerative, for example serving as a non-executive Director of a major company, but the University makes no claim on the proceeds. For we have no concept of identifiable 'University time', or for that matter, College time or leisure time. These would necessitate clocking-in, time-sheets, and the like; that would not be a good idea as we might start claiming overtime on the occasions when we work compulsively at our research, or on examination script marking. We treat ourselves as professionals, as indeed should a community of scholars. The University provides facilities for our teaching and scholarship, as has been the case ever since the University Library was established, but does not expect to charge us for use of the facilities. It is content with distinguished performance.
I presume that what I have said so far is uncontroversial, and may well be raising a yawn. But in fact these proposals, even in their revised form, contravene the liberal position I described, by asking the scholars to relinquish their existing rights, although selectively. The University would ask for some of its money back in the case where a scholar had created a marketable intellectual property right. But where no such right is created, as for example by sitting on Boards, no refund would be required. The inequity of this is an obvious flaw.
But it is flawed in other respects too. We should be concerned about its effects on the recruitment and retention of exceptionally talented officers. It is well known that our salary levels have been dropping in real terms since 1980. They are now seriously uncompetitive, both in relation to alternative employment in this country and in relation to corresponding positions overseas. I know of three Professors who left last summer after only one or two years' service. Whilst one should not over-react to individual events, we should be looking for ways to avoid this. If an officer produces a best selling popular science book (as has another Lucasian Professor), or a successful television history series, or a very valuable piece of software, we should be wishing them luck rather than devising ways to claw back money into the Chest. That way, they are more likely to stay! This is especially important in areas where doers can earn much more than teachers. It is important in the campaign to retain universities of the top international standard in this country. It also contributes to stemming the growth of intrusive bureaucracy in Cambridge.
Besides this, we need to be very wary of the argument that says that because we are the only university in the country that does not do X, then we should adopt X now, often referring to it as 'modernization'. The point has already been made at these Discussions that perhaps our not doing X contributes to our premier position.
The Central Bodies seem to have been taken completely by surprise at the savage reception of the Report by the Regent House at the original Discussion. The suggestion that we should 'put something back' fell on deaf ears. Incidentally, although it's now water under the bridge, the then Council lacked any political antennae: why antagonize the Regent House just weeks ahead of the campaign to get the governance proposals approved?
The Council appointed a new Committee asked to review the matter. That Committee has worked hard to produce compromise, but this seems to consist only of narrowing the scope of the clawback, leaving it just as inequitable as before. I find it no more acceptable, and I would again recommend rejection. Let's give it the thumbs-down, known here colloquially as non placet.
Dr D. P. KREIL:
Mr Deputy Vice-Chancellor, I am not arguing against commercialization of inventions or the RSD per se. I am, however, worried about restrictions affecting researchers' abilities to do their jobs.
I should like to give two examples of the kind of difficulties I expect for researchers in my field if the University proceeds in what I perceive to be the spirit of the current proposal.
(1) Rights in software. During my time at EBI developing software to integrate heterogeneous databases and bioinformatics analysis tools, rights to this software were sold to a company. This sale not only denied me the possibility of exchanging work with collaborators or taking parts of my work with me to support research efforts in other laboratories, but the company's diverging interests severely interfered with my ability to further develop this software system. I lost two years of work.
The laboratory's IPR policy was that researchers both should be consulted and were to receive a share in proceedings. All matters of policy, however, can always be overridden at the discretion of the Director General. In this case, that discretion was used to side-step the safeguards in the policy. Therefore, I am deeply suspicious of policies with clauses that allow major interference at the discretion of parties with possibly conflicting interests.
(2) Side-effects of increased regulation. When I joined the University of Cambridge as an MRC Research Fellow, I had hoped that I had escaped such restrictions on scientific software and database development. I was surprised to find that this might not be the case. Recently, a US company offered valuable data for free so long as I did not exploit the data commercially. It was a perfectly reasonable proposition to me. Yet the Technology Transfer Office took half a year to have the agreements signed, by which time the data were nearly worthless.
I sincerely hope that future developments will return to protecting our freedom to carry out research rather than establish restrictions on it that harm free scientific development and that are even of questionable commercial benefit to both the University and researchers alike.
Ms S. S. AIREY:
Mr Deputy Vice-Chancellor, as graduate representative to the University Council and General Board and President of the Graduate Union, and having been consulted by several postgraduate students, I would like to raise a few concerns about how the proposed policy will affect postgraduates specifically.
The first concern is that nearly all postgraduate students could be compelled to give up their IPR.
Although Regulation 11 states that the University will have no initial entitlement to IPR in to any students' research, it goes on to state that if the student is working in 'collaboration with others in research, the University may at any stage require the student to assign her or his IPR'. Thus the University could compel students to give up IPR to enable commercial exploitation.
The phrase 'with others in research' is vague and could be likely to encompass all students, as most consult with their supervisor as a matter of course. As written, it might also include a group of students working together, meaning that a project amongst students could be assigned to the University for commercial exploitation.
Further, the policy would appear to discriminate between students and staff, as in Regulation 2 staff members are given power to decide whether information should be the subject of formal IPR or freely available. Students appear to be given no such choice.
Finally, it is troubling that the requirement to confer IPR by a student to the University can be enacted during or after completion of the research, rather than agreed at the outset of the project. Although 'a student who refuses to sign these undertakings may be offered an alternative project on which to work,' were this issue to arise at the end of a student's three-year Ph.D. course and the end of funding, it would leave a student little choice but to sign.
A second concern is how the proposed time-line may unduly penalize students.
This policy would allow the Technology Transfer Office six months to reach a decision once results are submitted. This delay could be especially damaging for students. Students operate on a strict time-line and restricted funding. Regulation 11 states that the 'University may also require the student to undertake to keep those results confidential while steps are being taken to secure the intellectual property or to establish the exploitation arrangements'. Blocking a finishing student from publishing or presenting results during this deliberation could severely damage his or her career prospects as he or she applies for academic positions. Additionally, new delays could only exacerbate the existing problem of overrunning students with funding shortfalls.
Because the success of the implementation of this policy would hinge upon the efficiency of the Technology Transfer Office, it would seem advisable to postpone adoption until the scheduled review of the Research Services Division is complete.
Finally, I would also like to raise the concern that the policy contains no provision for representation of students in the appeal process, nor does it establish an advisor to whom a student could turn for unbiased advice.
I hope that these issues will be considered and addressed.
Professor Sir RICHARD FRIEND (read by Professor W. R. CORNISH):
Mr Deputy Vice-Chancellor, since I was away from Cambridge earlier this year on sabbatical leave, I have observed, but not participated in, the discussion on IPR rights which has developed since the Working Party of which I was a member reported last July. Now that there are draft regulations before us, it is appropriate to express my views.
The current report from the Council and General Board seems to me to be a genuine attempt to translate the structure which we proposed in the Working Party's report into a workable set of regulations. It is necessarily complex and involved, and I, and I am sure others, will make suggestions for changes which will improve clarity and make these regulations more workable.
These regulations are intended to leave all intellectual property in the ownership of the individual, except for patents where an active step needs to be taken to obtain protection (patent filing). Starting in this way, from a position where the individual owns, but with restrictions in very specific situations (for reasons which need to be carefully justified) is surely the way to ensure that academic freedom is protected.
I have had some experience of patents, which we have used to protect research advances in my research group and which have allowed the formation of two spin-off companies (Cambridge Display Technology and Plastic Logic). These proposed regulations would probably have made the job of forming these companies easier. Firstly, they would not have 'interfered' with the leading role which we (the researchers) needed to take in structuring the business and external fund raising, and would not have made any material difference to the division of shares between researchers and the University. Secondly, the clarity over ownership of the patents would have greatly simplified negotiations with external funders (Venture Capital Funds) and would have reduced lawyers' fees considerably. Thirdly, and perhaps most importantly, the regulations introduce a structure which provides necessary protections for the University, for the inventors, and for others working nearby (particularly students).
As things stand, an individual can file a patent based on work done within the University, which then remains confidential from the University and from colleagues and co-workers until it is published as a patent application some 18 months later. If this work is done by an individual working entirely alone, this is probably OK. But where the work takes place within projects which involve others, it is necessary that the University is in a position to establish who else might be an inventor. This should never to left for the lead inventor to determine, not least because the legal definition of 'inventorship' for a patent is often different from the criteria we are familiar with for co-authorship of publications. Regulation 16 puts this right. It will be a considerable improvement over the present situation in which it is apparently satisfactory that a co-worker or student who finds that their contributions have not be recognized in someone else's patent can only seek redress in court.
My concerns about these proposed regulations are mostly concerned with operation. I think, as drafted now, inappropriate control is given to the University, (currently the Research Services Division):
Regulation 9 allows the University to have further assignment of IPR from University staff when this is required by an external research sponsor. For the avoidance of doubt, it should be made clear that any such assignment of IPR will not be more than as required by the external research sponsor.
Regulation 17 provides the University with six months to make a decision about exploitation, during which time, the member of University staff is not able to publish. Six months is far too long. Two months is usually plenty of time. If more time is needed, and there is continuing goodwill between University and staff member, it would be straightforward to agree an extension of the confidentiality period.
Regulation 18 makes statements about a mutual obligation to exchange information. It is not clear to me how comprehensive or prompt this obligation to provide information is intended to be. It must be very comprehensive.
Regulation 19 requires the University to determine what route for exploitation to take 'having regard for all reasonable proposals for that exploitation made by the staff member'. This should be turned round. The course of exploitation should be determined by the staff member, unless the Technology Transfer Office puts up a case that this is unreasonable or unrealistic (using arbitration procedures as appropriate).
The purpose of these regulations must be to provide a framework which does not interfere with scholarship but facilitates our engagement with industry and commerce. It should not be seen as having a primary role as a revenue-generating exercise for the University. It is now recognized that even at those universities with long experience (in the USA) direct licensing and equity in company spin-offs contributes a very small fraction of the university's income. In this context is it unfortunate that the Schedule at the end of the Report has not been inflation-indexed since it was first presented in 1987. It is hard not to construe this as a mean-spirited rearguard effort to claw back on an 'overgenerous' provision made then. It is also unfortunate that while this Schedule is intended to apply to licence revenue (where the inventors play a purely passive role, having handed over to the University), it is often mistakenly considered to apply also to the share the university should acquire in company spin-outs, where the active and continuing participation of the inventors is usually essential for the success of the venture.
Remarks made on 18 May:
Dr N. J. HOLMES:
Mr Deputy Vice-Chancellor, can I start by saying that I appreciate the attempt by the Council and General Board to take note of some of the points made in previous Discussions on this topic? The Draft Ordinance now before us is much more detailed and explicit than the one we were faced with two years ago. I am also sympathetic to the University's need to clarify and, in some respects, strengthen their position for protecting intellectual property rights. It seems likely that the University has been in the position of having contractual obligations to third parties which it was not able to enforce, or at least not clearly able to do so. This is something which needed to be tackled, though I should like to see limits on what the Research Services Division (RSD) or their nominees can contract for us to do when we are not parties to the agreement (see the remarks of Dr Clark today and previously).
However, I want to speak today in defence of what I regard as basic academic freedoms: the right to speak openly about my work and the right to freely give materials arising from it to my academic colleagues who wish to use them. My concern is that these rights are not fully protected by the Draft Ordinance appended to this Report.
Most scientists are working at least in part with some external funding. In my case the majority of my recent work has been funded by the Biotechnology and Biological Sciences Research Council. The standard conditions of BBSRC grants impose three relevant terms. One, an obligation to publish the results of the research in appropriate scientific journals; two, an obligation to deposit novel organisms in a recognized collection which makes them available to the scientific community or to undertake personally to make them available for two years following publication; three, ownership of intellectual property is vested in the university which must ensure the protection and exploitation of results with commercial potential. However, the vast majority of my or anyone else's research funded by research councils and charities has no commercial potential.
My primary concern is that our new policy should not add new layers of bureaucracy to the day-to-day work of academic scientists. I therefore wish to ask two key questions. The first is this. If my research is externally funded, can I be certain that I am complying with the regulations made by this Ordinance if I disclose previously undisclosed results and ideas in a seminar, conference presentation, or even in an informal discussion with a colleague outside the University? This is how I and the majority of my colleagues have always worked and wish to continue working.
The right to disclosure guaranteed in Regulation 2 of the proposed Ordinance is subject to Regulation 9. 'University staff may also be required to maintain the confidentiality of ANY results arising from sponsored or collaborative research'. I am happy to believe that the Council only mean this to apply where the sponsor's terms require the University to ensure 'protection and exploitation of results with commercial potential', though I think the position needs clearer definition. But am I to be allowed to decide for myself whether the results have commercial potential? When I am chatting to our visiting seminar speaker on Monday afternoon, can I describe to her the latest idea I have had or the latest result, as long as I believe at the time that it does not have 'commercial potential'? These are freedoms I and most colleagues have always taken for granted.
No doubt the central bodies will assure me I am worrying about nothing. I would rather have something in the Ordinance which guaranteed my right to freely dispose of all research results and materials as long as I believed them to have no significant commercial value. I believe that what I suggest is practicable and consonant with the University's obligations to external parties. It should be self evident that if every academic scientist had to check each new result with RSD before being free to disclose, this would impose an unsupportable burden on the administration as well as the academics. Probably leaving the judgement of when to draw the attention of RSD to the potential of any research to the academic is what is intended anyway, but are we not entitled to an explicit acknowledgement of the position, even if only to protect the very occasional academic who makes an error of judgement and fails to see commercial potential before publicly disclosing their results?
My second concern is this. Will I need to require colleagues to sign some sort of material transfer agreement (MTA) before I can freely give them materials I have produced in my externally funded research?
I fear the answer might be yes. Since the creation of RSD, we have already been told that we may not sign incoming MTAs and we are being encouraged to use the services of RSD to draw up MTAs for outgoing materials. Again I would argue that, in the majority of cases, this is quite unnecessary and merely adds two new layers of paperwork and time to the process of exchanging material - one at our end and, since some institutions like our own will require central review of our MTAs, one at the receiving end. In my experience it is very rarely the academic who requires one to sign any MTA, almost always their bureaucracy; are we to join the ranks of these poor devils?
If we are content to leave the key decision about which results have commercial potential, and may therefore need to be kept confidential until RSD have had the opportunity to decide if the university wishes to exploit them, to the academic, why should we also not leave it to their discretion when to use material transfer agreements? I hope common sense and pragmatism will prevail.
I have one further suggestion. The proposed arrangements for the settling of disputes do not seem even-handed. The Council is to appoint the referees and the appeals panels. But in any dispute between the University and a member of staff, the Council, which under Regulation 14 acts for the University, is an interested party. Can an adjudication procedure be properly impartial if the judges are appointed by one of the parties only? I have an alternative. Let the referees and appeals panels be appointed by Grace of the Regent House. Furthermore, let the nomination of panel members be proposed by some suitable number of members of Regent House, perhaps six, remembering that all Graces require the approval of Council. I would also require that the adjudicators, while drawn from the relevant panel, must be agreed between all the parties to the specific dispute. This will inspire confidence in the process and lend authority to the adjudicators.
Dr M. R. CLARK (read by Dr N. J. HOLMES):
Mr Deputy Vice-Chancellor, I would again like to declare interests relevant to the current Report under Discussion and thus you should be aware that during my remarks I may at times be wearing different hats.
First I speak in my own capacity as someone with 25 years of experience in technology transfer of IPR relating to medical applications of monoclonal and recombinant antibodies for use in therapy and in diagnosis. Most of that IP fell under the earlier University arrangements whereby the inventors had full rights of ownership, yet in developing it we have chosen to share the major proportion of that income with the University. I strongly refute any accusations that my motives in opposing the current proposals are based on greed. It is claimed by some that it is necessary for the University to own the IPR in order for the technology transfer process to work for the benefit of society and the University, whereas I would argue that the success of the activities I have been involved in has been as a direct result of the initial ownership and the control residing with the academic inventors.
I am also a member of the Cambridge Association of University Teachers and currently serve as the elected President of the local association. As pointed out very clearly in the remarks of Professor Simon Deakin, the current IPR proposals under Discussion directly impact on employment rights and conditions and so I think that it is legitimate for Trade Unions to take an active interest in the process under Discussion.
The current proposals are very complex when compared with the previous policies, and I can see that in drafting them Professor Cornish has made a valiant attempt to address concerns raised in earlier Discussions. However, he has clearly been constrained by the remit given to him by the Council and by the General Board, and so the final policy is in my opinion very far from ideal, and is a major threat to academic freedoms. Let me address some of these concerns more explicitly.
What we have to remember is that the property rights we are discussing, principally patents, trademarks, and some copyrights, are what is referred to as negative property rights. Ownership of these rights allows the owner to restrict access to, and use of, the ideas. To make money from these rights it is usually necessary to adopt restrictive practices, sometimes it is necessary to keep information secret for a period of time, and this can cause major conflicts with an individual's freedoms to exchange research reagents, data, and ideas, and to publish their work. I would assert that free exchange of ideas and information, and a belief in publishing our observations, is fundamental to working in a University, and that is why many of us have shunned lucrative financial offers from industry to engage in research under more restrictive terms. However, whilst Draft Ordinance 2 appears to offer the right to the inventor to choose how to disseminate their work this clause is severely undermined by the wording and ambiguities that exist within Draft Ordinance 9. Also this Ordinance deals only with, quote 'the results of any research undertaken during the course of employment', and fails, as many speakers before me have mentioned, to provide protection for those that derive similar IP during other activities.
Draft Ordinance 9 essentially places under the control of RSD all IP derived from research sponsored by external awards, and seems to take away any right of the individual inventor to choose against the wishes of the RSD to put that IP in the public domain in preference to the filing of a patent. The terms of the technology transfer process are solely dictated by the agreement negotiated between RSD and the sponsor. One major problem I have with this clause is that the terms of the award by an external sponsor are frequently negotiated using RSD model agreements (see for example draft clauses 23 and 24) and these currently offer little option for negotiation of terms more favourable for the individual inventor. It seems to me that by placing these terms and conditions within Ordinances, that the University will be in a clear position to penalize a member of staff for a breach of their employment conditions for the act of publishing results freely rather than approaching RSD to ask whether they should instead apply for a patent. This would seem to go against the clear statement made by Professor Minson, who was one of the earlier working party members and a keen advocate of University ownership, when he spoke in the Discussion on 15 October 2002 (http://www.admin.cam.ac.uk/reporter/2002-03/weekly/5901/16.html). He said: 'Some members have argued that the decision to exploit an invention must lie with the academic. I absolutely agree and, as I understand it, the proposed policy is consistent with control by the inventor. ... Members of the University have the right to place the results of their research or scholarship in the public domain by any mechanism, and the corollary is that the decision to exploit commercially is in the hands of the inventor. The policy statement should perhaps be modified to make this explicit.'
It is a pity that Professor Minson's request was not carried out.
On this matter of ownership and decisions over exploitation I share Professor Simon Deakin's view on this, expressed in his remarks at the same Discussion I quote above, that a 'Melbourne solution' would be the best approach whereby we only give up rights in individual IPR where absolutely necessary and all residual IPRs by default are left with or given back to the individual. This does not exclude the possibility of the University offering a technology transfer service on a voluntary basis.
I agree with the earlier remarks of Professor Richard Friend that the policy should clearly state that the TTO should follow the wishes of the inventor over exploitation unless they can provide strong reasons to disagree. Another clause that is missing from these Draft Ordinances is a clear statement that should the TTO at any stage decide not to pursue commercial exploitation of IP, that the rights of ownership will be made over to the inventor. Draft Ordinance 18 refers to such a situation arising but does not make a clear statement that rights will then be transferred to the inventor. If the University is truly in favour of maximizing the amount of technology transfer taking place for the benefit of society it is ridiculous not to give the inventor rights to continue with the process even if the University decides for whatever reason not to proceed. My colleagues and I have on several occasions made use of such a 'claw back' clause to rescue what the inventors felt was valuable IP from abandonment at the hands of decisions made by business managers. Indeed the successful cancer therapy CAMPATH was rescued from the clutches of GlaxoWellcome and then placed in the hands of a small start-up company LeukoSite precisely because of the enthusiasm and optimism of the inventors winning out over the pessimism of the pharmaceutical company's accountants.
Looking at this new proposal I am also appalled at the treatment of students, visitors and collaborators within the Draft Ordinances (see draft clauses 10 and 11). The University cannot in these cases make a claim as the employer under the Patents Act, and for example in the case of students no distinction seems to be made as to whether they are undergraduates, postgraduates, research students, or as to what their source of funding is. We have many self-funded, full fee-paying, overseas students in this University. What kind of signal are we likely to send out to these people in saying that they must give up all legal rights in their IPR and hand them over to the University for the privilege of studying or collaborating with members of the University. Is this the way to encourage applicants to come to our University and then to foster a free flow of academic ideas within our community of scholars?
But for me one of the most worrying aspects of the proposed regulations are that they now embody, as contractual terms of employment, the right to suppress publication of results and ideas and views if they impact on IP that the TTO decides to commercialize, and under terms that the TTO can dictate to the individual. Once Draft Regulation 15 is enacted then the individual is at the full mercy of the TTO. They must make full disclosure of all their relevant information to their Head of Department or Chairman of the Faculty Board, and to the Technology Transfer Office. Draft Regulation 17 then gives at least six months to the TTO within which to make a decision over whether or not to patent and then more time is allowed to prosecute the patent. Within the UK patent system there is a period of up to one year within which it may be decided that the work should be kept confidential and during which more data can be added to the initial filing. I have known of situations in other countries which allow 'Continuations in Part', for this process of filing to continue for several years. My reading of the Draft Ordinance is that whilst this process continues the inventor may be obliged by the TTO, or by a commercial partner acting through the TTO, to keep confidential all of the work that they believe to be associated with the prosecution of the patent. This lack of a clear time limit on confidentiality is unacceptable. From personal experience, and as remarked upon by Professor Richard Friend, I know full well that it is possible to speed up the patent process and to file if necessary in a very short space of time. Co-operation in these procedures with the Research Services Division (RSD) and the TTO should be as a result of friendly agreement and certainly not by legal compulsion. If an inventor decides at an interim, or even at a late stage, that it is now more important to make the work public than to continue with a drawn out patent process which they no longer agree with, then they should retain the right to do so without penalty under their employment contract.
These clauses I am referring to seem very relevant to the personal situation I recounted at the last Discussion on IPR (http://www.admin.cam.ac.uk/reporter/2003-04/weekly/5938/18.html). To summarize, I recounted how CUTS Ltd and officers of the RSD had, without my knowledge or consent, entered into a commercial agreement with an external company over IP that I had assigned to CUTS Ltd. In that agreement they had offered my research publication output for pre-vetting by the company for a period of three years from the date of the agreement. They had also offered to place any relevant Ph.D. student thesis under restricted access for a period of up to five years, and to inform the company of any clinical work taking place within the University that was related to the patent making up the IP. I was so angry at this attempted infringement of my and others academic freedoms that I made a formal complaint to the Vice-Chancellor, who then passed the matter over to the Registrary. The Registrary's response, using the excuse that he was trying to save the University unnecessary legal expense, was then to refer the matter back for legal opinion from the lawyers within RSD, the organization that had negotiated and signed the agreement I was disputing. The legal opinion they put forward in their reply did however concede that the agreement could not be made binding over me, but implied that it was acceptable business practice to behave in this way. I responded to the Registrary saying that I was not satisfied with this response, particularly with my continued concerns over financial risks to the University, to myself, and other inventors who have IP and or income interests vested in CUTS Ltd. I still await his further action on the matter.
Many people within the University, some of whom support the proposed change in IP policy have expressed their dissatisfaction at the way that RSD have behaved in this case. However my reading of these Draft Ordinances is that should they be accepted by the University then the TTO, RSD, and CUTS Ltd would have very strong rights to enforce such an unreasonable contract on any individual who had agreed to assign a piece of IP to the University. I simply would not myself tolerate such unreasonable behaviour and would if necessary brave out any attempt to enforce these unreasonable employment conditions over me. As far as I am concerned these aspects of the new policy are in direct conflict with the existing Statute U, I (a), which states very clearly that
This Statute and any Ordinance made under this Statute shall be construed to give effect to the following guiding principles, that is to say: (a) to ensure that members of the academic staff have freedom within the law to question and to test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges.
In other words I am operating on the basis that if I wish to publicise my research work or my views, even if it jeopardises commercial rights in University IP, then I should not be penalized for so doing.
To conclude, whilst I support the general aims of technology transfer for public benefit, I call on others within the University to join with me in opposing these unreasonable restrictions imposed by the proposed IP policy, on our academic freedoms.
Professor A. B. HOLMES (read by Dr N. J. HOLMES):
Deputy Vice-Chancellor, once again I congratulate Professor W. R. Cornish on drafting and explaining the recommendations contained in the joint Report.
In some senses I find that I am repeating my comments made in the Discussion held on 29 October 2003.
I speak with experience in having filed over forty patent applications, about three-quarters of which have been assigned by the University to Cambridge Display Technology (CDT). Much has happened in the University and in the relationship with external commercial sponsors and venture capitalists in the intervening fourteen years to mean that our early experiences have become less relevant in the present climate.
For example, at that time the resources of the University to enable the filing of patent applications were very limited, and everything was done by external funding from funds designed to seed technology transfer. I and my colleagues approached one of London's biggest intellectual property law firms on behalf of the inventors and received pro bono legal advice which led to the drafting of the framework for the basic company structure for CDT and sound legal advice for all the founder/inventors. Clearly the arrangements outlined in the current Report are much more satisfactory. However, there is much to be said for the 'wisdom of experience' gained in the DIY process.
My present concerns relate to the lack of freedom of choice in the patent protection and exploitation pathway. No one can deny the University the rights of ownership of part of the intellectual property arising from work conducted with the support of University resources. It is debatable whether the University can provide the best advice for every situation, and I would still prefer that element of choice to reside with the inventors. I applaud the recommendation of the Report to leave the choice between patenting and publishing to the inventor. I am not convinced that the University can always make the best decision about whether or not work should be patented, nor how to exploit the patent. For example, the present policy is generally to discontinue a patent application after the first twelve months if a licensee or exploitation pathway has not been identified. In many cases this is far too early to make such a decision. Many commercial decisions will only be able to taken once a patent has been examined and allowed in a range of countries.
Regulations 17 and 18 do not clarify what would happen if the University decided not to pursue an application and the inventors wished to continue the process, financed from elsewhere.
In addition six months is a very long period between disclosure and the proposed deadline for a decision on filing and reflects the limitations of the present system. This period should be much shorter (maximum three months).
Finally it is still unclear to me what the rules of ownership would be in the case of formation of a company. In my own experience the input of the inventors in a spin-off company can be an ongoing commitment which needs to be recognized.
Dr N. PANNU (read by Dr N. J. HOLMES):
Deputy Vice-Chancellor, I started a Ph.D. Degree here in 1998 and my research involved writing software. In my second year, my work earned me a Research Fellowship at Trinity. But my software became perhaps too popular; a postdoctoral Fellow in the Department copied it, modified it, and attempted to commercialize it through the University. I complained, and was offered a take-it-or-leave-it deal by the Research Services Division (RSD); a small percentage of the royalties in return for signing away my rights.
I have been able to complain effectively about this for two reasons. The first is that I own the copyright to the software and, obviously, the RSD is well aware of the severe penalties for copyright infringement. The second is the support I received from the more objective scientific community in my field. Indeed, a major software distributor would not allow my software to be distributed without my consent and supported me in my stance against the RSD.
I am concerned that future research students will be less fortunate than I have been. If they are compelled to sign away their rights on joining the University, as the new RSD-1a form appears to require, then they will be defenceless against bullying by more senior officers.
Deputy Vice-Chancellor, Dr Clark has told this House how RSD made a contract, without his knowledge or consent, for him to work in America and to have his research vetted prior to publication. In my case, RSD commercialized my software without my knowledge or consent, then tried to bully me into signing over exclusive rights to it on unattractive terms. This is not how the University should conduct its business.
Dr T. J. MEAD (REGISTRARY):
Deputy Vice-Chancellor, I do not normally comment in Discussions but I feel that some of the remarks recently made require me to say a few brief things.
Firstly, I regret that matters which are or have been the subject of confidential enquiries are aired in these Discussions.
Secondly, Dr Clark gave an account of a complaint he had made; I do not entirely accept what he said. The complaint that he made was passed to me by the Vice-Chancellor. I did not refer it to RSD for advice - I sought their comments on the complaint that had been made, which is standard practice for any complaint in terms of the complainee. In the light of those comments I asked Dr Clark if he wished to continue his complaint, making it quite clear that if he did I would continue to prosecute that matter. He said he did, and the matter proceeds.
Professor D. J. C. MACKAY (read by Dr S. MAHAJAN):
Deputy Vice-Chancellor, I welcome the Cornish report's affirmation of our freedom to make the results of our work available to the public whose taxes and donations fund universities (http://www.admin.cam.ac.uk/reporter/2002-03/weekly/5933/26.html). However, I remain concerned about the new proposals for University ownership of patents, database rights, and typographical designs.
A university that seeks to own patents might, I worry, become an organization whose research directions are increasingly chosen by men in suits; an organization whose faculty are appointed on patent-generating potential; an organization whose staff are pressured to assist in licensing their patents; an organization, even, that uses patents in ways the inventors are unhappy with. A university that seeks to own patents might become a place where secrecy and non-disclosure agreements hinder open academic interaction.
There seem to be discrepancies between the good intentions expressed in the Cornish report and the actual powers proposed in the draft Ordinance on Intellectual Property Rights (http://www.admin.cam.ac.uk/reporter/2003-04/weekly/5958/1.html). For example, whereas paragraph 3.1.12 of the Cornish report advises that block forward-selling of intellectual property is a bad idea, Regulation 23 of the draft Ordinance appears to allow block forward-selling.
A second example: if the University chooses not to exploit an invention, the Cornish report recommended that 'the researcher(s) should be entitled to a release of its rights to them' (paras. 3.1.5.8 and 5.14). Regulation 18 of the draft Ordinance, however, fails to provide any such entitlement.
I welcome entrepreneurship and spin-off companies. The talent with which we are associated not only supports and inspires us but also attracts new talent to Cambridge. But a monopolistic attitude to intellectual property might suffocate the goose that lays the golden eggs.
Dr I. CROSS (read by Dr S. MAHAJAN):
Deputy Vice-Chancellor, I quote from the report of the RPC Working Group on ownership of Intellectual Property Rights (http://www.admin.cam.ac.uk/reporter/2002-03/weekly/5933/26.html):
Extensions of Copyright. Copyright has been deployed by analogy to give rights to persons other than creators: performers and their exclusive producers, sound recording producers, film producers, publishers for the format of their publications, broadcasting, and cable-casting organisations. These 'related rights' are almost all directly in favour of the investors who set up production arrangements. Accordingly, recordings, films, etc. made using University facilities and equipment give rise to IPRs which in all likelihood belong to the University.
This assertion is at best erroneous, at worst giving the appearance of being purposively casuistic. When a commercial recording is made, a fee is paid to the owner of the recording facilities; copyright inheres in the artist and in the team responsible for the recording (producer, distributing record company, etc.), which does not include the owner of the recording facility; payment of the recording fee explicitly excludes the recording facility from any share in the copyright of the material produced (see the guidelines of the Association of Professional Recording Services at http://www.aprs.co.uk/legal/index.asp). While I am unfamiliar with the situation in the world of film to the same level of detail, my limited experience of that world indicates that the same procedures are followed therein (i.e., ownership of production facilities does not ipso facto entitle the owners to a share in the copyright of material produced thereby, assuming that a fee is paid for the use of facilities).
Hence the position of the RPC Working Group on ownership of Intellectual Property Rights is untenable. Were a company to use University facilities to make a commercial recording (something which happens on a regular basis, at least in the Music School), they would pay a fee and expect to retain full copyright in the materials produced on the basis of the fee paid. Were a member of the University to make a recording using University facilities with the intent of exploiting the recording commercially, then the expectation would be that on payment of a fee for the use of the facilities copyright would inhere in the artist, as happens in the real world. Were a member of the University to use University facilities to make a recording that was intended to be used for research purposes, the position is unclear; in effect, the recording would constitute 'data' that would be highly unlikely to have commercial value in itself, very much of the same sort as data employed in any other form of research. The value of the University's claiming copyright over such materials would appear to range from extremely limited to nil, and it would have little effect other than to alienate staff; moreover, by analogy with the use of technical facilities in the wider world, it would have to be possible for payment of a fee - surely nominal, given the non-commercial nature of the recording - to ensure that the copyright remained with the originator of the recording.
Moreover, a further issue arises in respect of copyright in artistic productions that require the use of technical facilities (other than simply sound recordings). In all instances of which I am aware, the procedure follows that in the world of recording; the use of technical facilities does not grant the owner of those facilities any rights over the artistic production unless this is agreed explicitly in advance, a case that is very much the exception rather than the rule. In an academic context such instances arise when an artist - say, an electroacoustic composer - makes use of facilities such as recording studios that are owned by the academic institution at which they work to produce a piece of electroacoustic music. There is no written 'score' in the traditional sense, and the piece may take the form of a recording or a piece of software or both. Were such a piece to be commissioned, with perhaps the assistance of funds from the Arts Council, neither the funder nor the owner of the technical facilities conventionally lays any claim to copyright in the work in question, whether or not a fee has been paid for the use of the facilities; copyright rests solely with the artist, as it would were the artist to have produced a 'conventional' work using pen and paper facilities. Indeed, a typical case might involve funding being made available (perhaps by an HE funding council) for a short-term creative arts fellowship to enable an artist to work in a particular technical facility. Such an arrangement typically involves benefits to the institution quite over and above any direct financial advantage that might accrue to the institution through the award (such as overheads), not least in that the institution's students are brought into contact with the artist and his or her working practices to their direct educational advantage. In no case of which I am aware in the UK has a funding body or the institution owning the technical facilities attempted to assert even part ownership of the copyright in any works produced under such an arrangement. By analogy with the University's policy in respect of 'conventionally produced' pieces of music by staff, the University should not seek to assert ownership of copyright over such works.
This proposal is fatally flawed; it is wrong in law and wrong in practice, and there are no grounds for its inclusion in the University's regulations governing IPR.
Dr S. MAHAJAN:
Deputy Vice-Chancellor, almost 200 years ago, Thomas Jefferson said:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself. (Letter to Isaac McPherson, 13 August 1813)
Hence the University's draft regulations (http://www.admin.cam.ac.uk/reporter/2003-04/weekly/5958/1.html), which convert our ideas into their exclusive property, require exceptions, notwithstandings, exceptions to exceptions, tribunal arrangements, and appeal procedures. Such provisions inevitably centralize power. Instead of promulgating Statutes to annex our ideas, the University should remain a community where staff and students co-operate to develop and share knowledge.
One way is to create a public pool from which patents would be licensed royalty-free on conditions that promote further sharing. Under Regulation 4, the University would own our inventions so we could not patent and contribute them to such a pool. Regulation 2 does allow us to place inventions in the public domain, an acknowledgement of our current, broader right; but inventors cannot then require licensees to contribute derivative patents into the public pool. A similar 'join us but do not exploit us' clause in the GNU General Public License (GPL) (http://www.gnu.org/copyleft/gpl.html) has helped free software grow. It illustrates an important difference between public patent pools or free software released under the GPL, on the one hand; and the unrestricted public domain on the other. This difference is not respected by the draft regulations.
Another way to benefit the public is to publish textbooks under a free-software-style license such as the GNU Free Documentation License (GFDL) (http://www.gnu.org/copyleft/fdl.html). Regulation 7, however, by taking our copyright in typographical arrangements, poisons such attempts. Her Majesty's Stationary Office (HMSO) warns its own staff that often 'it is impossible to reproduce published material without copying the typographical arrangement'; therefore its staff not only arrange for normal copyright permissions but must also ensure that the holder of typographical copyright consents to publication. 'It is,' HMSO says, 'not acceptable to leave the position [about typographical arrangement] unclear or confused.' (HMSO Publishing and Copyright Guidance Notes, No. 1, 24 October 1997: http://www.hmso.gov.uk/copyright/guidance/gn_01.htm).
We should heed their warning for we face the same problem under Regulation 7. I plan to publish a physics textbook book under the GFDL. Unless I buy my own computers, printers, and network services, its typographical arrangement would belong to the University. Others could not reproduce my text without reformatting it, which would defeat my purpose in making a physics textbook cheaply and easily available.
In a previous Report, the University dismissed arguments for our current liberal system by saying that 'a policy based on assertion and belief is hard to justify.' (Joint Report, para. 6, Reporter, 24 July 2002, http://www.admin.cam.ac.uk/reporter/2001-02/weekly/5894/15.html). Why then have the University's arguments been so short on evidence and so long on bare assertion?
Here is one of the few arguments offered for the earlier IPR proposals:
Without specialist advice [staff] may ... prove vulnerable to predatory external parties, and any commercial deals done may be of variable quality. There is little support for less entrepreneurial individuals to enable them to realize the value of their inventions. (http://www.admin.cam.ac.uk/reporter/2001-02/weekly/5894/15.html)
I agree with the diagnosis. In a bottom-up university, in a community, the staff would discuss the dangerous waters outside and would form, perhaps through the university, a group to defend against the sharks. The arrangements would be voluntary, so this group would have an incentive to help inventors. In a top-down organization, however, the central authorities, from the same diagnosis, create such a group and hand it our intellectual property. Our ideas hijacked, we have no choice but to use this group and follow its timetable and terms. All for our own good! The University's attitude towards its inhabitants is more appropriate for a kindergarten or an asylum.
This attitude leads to linguistic contortions. The comments on Regulations 8 and 9 quote Section 42(2) of the Patents Act to explain why the University must own the entitlement to apply for a patent. In plain English, that section seems to say:
Parliament has made unenforceable certain onerous provisions in employment contracts, such as a provision that forces employees to give employers future patents.
The University's comments seem to say:
However, if we take the patents from you by University Statute, then it's not part of an employment contract and we can get away with it.
Courts will decide whether the University can get away with it. Even if it can, the spirit is not that of a community.
Section 42(2) of the Patents Act protects employees, who have little bargaining power compared to employers. What then of the University's plan (Regulation 11) to grab intellectual property from its students? They have even less bargaining power than employees or staff. In a reductio ad absurdum of such policies, the University of South Florida filed criminal affidavits against a Master's student, Petr Taborsky, for theft of the University's trade secrets. Sentenced to three and a half years in prison, he was initially assigned to work on a chain gang. Students are part of our community, and the University should not force them to hand over their ideas.
In numerous places, the comments and the regulations hide an undermining of community. The comments say that Regulation 26
gives the University, acting by departmental decision, the power to use teaching material prepared by a staff member for teaching in the University by others.
The comments hide an actor inside a regulation, which is presented as a fact of nature. A transparent phrasing would be: 'In Regulation 26, the University ... takes the power to use teaching material prepared by a staff member ...'. Clear writing leads to clear thinking. Now we can discuss whether the University should take such powers, and how in a community we should help each other teach. In a top-down organization, however, the central authorities 'acting by departmental decision' seize our ideas and materials; and undermine the community.
The draft regulations are infected with the spirit of homo economicus. Yet the University has not given any evidence that its commercializations will be more lucrative than ones done by the creators; or, more importantly, that more royalty income means more public benefit.
Nathanial Borenstein invented the ubiquitous MIME format used, for example, to e-mail pictures of our bringing freedom to Iraq. In Programming as if People Mattered (1991, pp. 53-56), he tells a tale of two programs. The first was made available cheaply to universities; a network worldwide contributed improvements. Late in its life, the men in suits, as he calls the lawyers and MBAs, discovered this program as a corporate cash cow, by which time it was too late to ruin it. The second program, however, they took over early; they vigorously 'protected' their company's intellectual property. The first program is the Unix operating system; it and its derivatives, including the free GNU/Linux, are used worldwide. Its authors are famous. Who now uses or even recognizes the second program, the Andrew Window Manager?! Who has heard of its authors? If you want to serve the public and yourself, share your knowledge and ideas. The public is then not then charged twice: once for the research and a second time for licensing fees and other monopoly rents. Academics, who rightly value fame over fortune, are much more likely to share than is a university eager for profit.
Besides sharing, fairness is a valuable community norm. In March 2001, by the little-noticed Grace 6, the University annexed intellectual property done on external funding. Afterwards the first Joint Report (Reporter, 24 July 2002) noted an unfairness:
... the outputs from separate streams of government money are treated differently and, by extension, different classes of employees employed on these separate streams have enjoyed different rights.
Fairness, we were told, would return when everyone surrendered his or her rights. The current draft annexes patent rights. Several years from now, after the scientists have accepted the change, they may hear how fairness means that the University should also annex copyright, more the domain of historians and linguists. Whereupon the science dons, out of resentment and envy, may let the arts dons hang alone. Such are the ways in which a community fades. The arts dons, science dons, and administrative staff should now hang together to defeat these proposals and to repeal Grace 6, returning annexed IPR to ourselves, the community of scholars.
Mr R. N. CLAYTON:
Deputy Vice-Chancellor, my name is Richard Clayton and I am, despite my obvious aged appearance, a research student.
About twenty-five years after I obtained my undergraduate degree, I had the opportunity and privilege to return to Cambridge to study for a Ph.D. Degree in the Computer Laboratory. I am self-funded, being able to afford to come here by using the money I received from selling my share of the software company I helped to run for thirteen years.
I am gaining immensely from studying here, and I like to think that Cambridge is gaining too, and not just from my fees - my experience of software development, running a successful business, and interacting with those in Government who wish to regulate the Internet, is not something that most academics can call upon, so I believe that I enliven discussion in the tea-room as well as in more formal settings.
Unlike most postgrads, who probably do not realize the significance of such things, a key issue in my deciding to study in Cambridge was the enlightened IP policy. I examined the material from the Board of Graduate Studies most carefully and was much reassured to see that if I developed something useful in my research (and I have been developing useful things for decades) then I would have full control of its development and exploitation. I am far from convinced that I would have the same reassurance if I was arriving in 2005 and looked at the proposed policy from the outside.
The brave statement in Regulation 11 that students own their own IP is immediately watered down by Regulation 9. I fail to see, given the nature of research and the Ph.D. process how I can find any comfort in the idea that if I suddenly hit on a fruitful line of enquiry but I did not wish to hand over to the University everything I might invent, that I would have to stop what I was doing; but somehow the Computer Laboratory would 'see me right' and arrange for me to demonstrate - to the examiner's satisfaction - that I had in fact been researching into an alternative topic all along.
Things may be different in other Departments, but in Computer Science very few patents are valuable, very few programs or techniques catch on unless they are freely usable by everyone - and one of the worst things that anyone could do with a new discovery would be to try and immediately make money by restricting its use. I have learnt that lesson from experience - the money is in effective development and not in the basic ideas - but I am far from certain that all the academics I have met understand it very well and I see no evidence that the central administrators have understood it at all.
Thus I cannot see why people wish to bring in restrictive arrangements. It is not going to make the University's fortune. It is going to put up barriers to people like myself and, if I might say so without sounding too arrogant, I find that the in-built assumption in Regulation 9 regarding collaboration is almost insulting. Why is the University to require me, a self-funded student with years of experience, to meekly hand over what I invent as a part of a collaboration? Why should this be different for any other postgrad who has chosen Cambridge, when their talents would be welcomed almost anywhere? Is it really the case that the Professors have all the good ideas and the Ph.D. students are just there to make the tea and grind out the obvious implications?
This proposed policy is not fit for purpose. Start again please.
Mr S. ALLOTT (read by Mr R. N. CLAYTON):
Deputy Vice Chancellor, I am a technology businessman of 20 years' experience, have sponsored research at Cambridge, and most recently have founded the Cambridge Computer Lab Ring - the Computer Laboratory's graduate association.
I would like to ask this House to consider two further points on IPR.
First, the University has not made a good case for changing the IPR policy. The change is stated to be in response to the requirement of funding councils that the University own the results of its research. Further, the Cornish Report says
'1.4 Government attitudes to IPR ownership of academic research results. The Government is rightly concerned to ensure that exploitable outcomes from university research should lead to actual innovation for the benefit of the British economy. Evidently this means that Funding Councils and other official bodies will require quantitative statements concerning technology transfer, including such measures as the number of patents applied for and the revenue generated. There are indications that there will be financial incentives to improve performance (through so-called Third Stream Funding). Some believe that there may in future be a legal requirement that all IPR arising in the course of academic employment must be owned by the relevant university; or, if not that, then pressure to adopt best practice models to the same effect. In Cambridge such thinking appears to underlie the view of those who have insisted upon the need for change “because the status quo is not an option”'
In short, the motive for the policy appears to be to respond to a Government desire to benefit the British economy. The primary mechanism for national economic benefit coming from universities is people-centric, not idea-centric. This may be hard for academics to accept (because they work in ideas), but business growth requires economic actors (i.e. people). Universities attract good people to a place. Some of those good people, after graduation, become entrepreneurs and grow businesses. Other good graduates become employees in their businesses. From my own inquiries, it seems that Ph.D. students are the most significant element in this. The output of academic research itself is of course valuable, but the Government and the University would get a bigger bang for their buck by investing in things which assisted the people flow into the economy rather than investing in commercialization of the idea flow. Obviously, doing interesting research in itself attracts good people so research is important. But it is the people who make the businesses.
Commercialization of brilliant ideas takes time. Raw research ideas sit on the shelf until they are needed for commercial exploitation. One cannot downstream raw research into businesses straight away; commercially successsful applications are rarely those envisaged by the inventor. There is a large academic literature on this and it is an accepted commonplace in the commercial world. Transistors were invented for use in hearing aids. The telephone was invented to broadcast concerts. Who would ever have imagined that lasers would be used in CD players?
The proposed change in IPR policy will, in my respectful submission, damage the UK economy. The Government would be better advised to invest in increasing people flow. We need the next Sergey Brin, the Russian cofounder of Google, to come to Cambridge, and we need to make it as easy as possible for him or her to build the next Google here in UK.
Second, the University will be a poor owner of IPR. It is not designed to and is poorly organized to exploit valuable IPR commercially. A non-profit body with the mission of a university is not likely to exploit IPR commercially and be effective at it.
Changes to the University's structure, people, and processes to improve its effectiveness at exploitation will harm its core mission (such as by damaging academic freedom, introducing bureaucratic processes, and deterring good faculty from joining).
The University's non-academic staff are more akin to a local authority or health authority in culture, processes, and levels of pay. It would be laughable to suggest that a local council would be an effective owner of valuable IPR. Why do we think this University will do better? The University will attempt rationally to optimize its exploitation effort, focusing on the top prospects. The lower end of the portfolio will therefore languish. Rationally optimal behaviour by the University will leave much IPR unexploited.
Individual ownership, however, will allow everyone to tend their own garden.
For these two further reasons, in addition to those mentioned by others, I would urge the Regent House to reject the proposals.
Dr D. A. GALLETLY (read by Dr D. R. DE LACEY):
Mr Deputy Vice-Chancellor, at the end of January, 2003, a slightly subversive document1 found its way into the hands of several supposedly interested individuals. It originated in Francis Cornford's comment in the preface to the second edition of his Microcosmographia Academica that 'I fancy (although I am not sure) that there is just one feature of academic life that has become a little more prominent since the war. If I could have recaptured the mood of the fortnight in which this book was written, I might have added a chapter on Propaganda, defined as that branch of the art of lying which consists in very nearly deceiving your friends without quite deceiving your enemies'.
The author of this document chose to remain pseudonymous: guesses were made as to the identity of this person, but as far as I know, none were correct. At the time, Professor Anderson remarked that 'it's in some ways a commentary on the IP debate so far'. At the time, I disagreed. No longer so.
I was, unfortunately, unavoidably absent from last week's Discussion, so I have only second-hand reports of the comments made by Professor Cornish. Nevertheless, my mind is inescapably drawn to certain sections of that document of January 2003, the authorship of which I must now confess to. I doubt that I would have time to read out the entire document - and am sure that I would be deemed irrelevant were I so to do - but I shall quote a few paragraphs which I believe to be particularly a propos and suggest that people who might feel tempted to engage in some of these tactics consider quite how they can be perceived.
I shall begin with The Principle of Positive Spin, which appears to have been used again and again with regard to the proposed IPR policy, in all of its various incarnations. 'The principle consists in repeatedly emphasizing the positive aspects of your proposal (no matter that there are none) while downplaying the negative (which are far too many to enumerate so you will not bother to waste your time, or anyone else's, by so doing). ... A particularly pleasing application of the principle comes when you can show that by ... adopting the current proposal the University will save money now; the fact that ... implementing it will, over the next five years, cost the university far more may cheerfully be omitted from your exposition.' (The assiduous reader will notice that the original passage had 'not's in the last sentence, as the piece was originally written as advice to those opposing proposals, rather than to the Council itself!)
This is all quite light-hearted teasing, but what is less amusing is when the harried supporter of something or other descends into personal attacks. 'You may also optionally to choose misrepresent the position of your opponent (known as Corner-Painting; or indeed, should you wish to indulge in a little sport, to misrepresent your opponent himself; the extreme form of this is known as Reductio ad Absurdum).'
Corner-Painting is a phenomenon that has been allowed to flourish due to the rather curious practice of speakers being permitted to ramble at some length without interruption rather than entering into a true dialogue. Since your opponent is thus unable to present his own position it is necessary for you to expound it for him, that you might better be able to reply to the points you believe he would make. ... When presenting your opponent's position it is of course necessary for you to make some abridgements to his text so that you can move swiftly on to your counter-arguments. Quoting him out of context is a popular tactic at this point. You should also make sure to introduce some slight alterations in his stated position; alterations that are at once so minor that he would appear petty to complain even could he determine their precise nature; and so major that his entire position collapses and his proposal appears ridiculous.'
[At this point the Deputy Vice-Chancellor questions the relevance of these remarks to the Report in question. He then permits reading of the final two paragraphs of the speech]
'Reductio ad absurdum is one of a number of splendid techniques imported from the mathematical arts. It differs from Corner-Painting in that it is used to destroy the credibility of your opponent, rather than merely the cause he supports. For this reason it is a tactic to be used sparingly; if you employ it too often your opponents will learn from example; and the likelihood of retaliatory attacks on your own credibility will be much increased. It is therefore a risky technique when adopted by those lacking either a saintly aura or the prospect of imminent demise. ... If you are feeling particularly courteous you may elect to alert your foe to your impending attack by means of a shot across his bows in the national press. This will be sure to focus his attention and ensure his presence in the Senate-House on the next available occasion. Sometimes, though, enemies unhelpfully appear in the Senate House before these preliminary formalities have been completed. In this case it is perfectly acceptable to proceed as if they had been and to deliver your carefully prepared attack regardless. With luck he will be taken completely by surprise and will fail to muster an appropriate defence; each absurdity will strike home and his credibility will be thus reduced. There is however one caveat that should be noted at this point: his unexpected presence that afternoon may be explained by his having accumulated sufficient evidence to reduce you'.
Deputy Vice-Chancellor, I shall not go on. Anyone who has not yet had an opportunity to read the complete document will find the reference to it as a footnote to my speech. I hope, however, that the humorous and satirical nature of the comments I have made today will not hide the serious point behind them: that unwarranted personal attacks on those one considers to be obstructing one's efforts to achieve some end are simply unacceptable although happily they often have the tendency to backfire on the person making them.
1 http://www.chiark.greenend.org.uk/~galletly/propaganda.pdf
Dr D. R. DE LACEY:
Deputy Vice-Chancellor, the Draft Ordinance begins well. After defining, in all-encompassing fashion, the subjects (might I say 'victims'?) of its scope, it promises that 'University staff are entitled to decide that the results of any research undertaken by them in the course of their employment by the University shall be published or disseminated to other persons to use or disclose as they wish in accordance with normal academic practice' (Regulation 2). This regulation, according to the notes of the preamble, 'states the fundamental entitlement of academic researchers in the University to place the results of their work in the public domain ... This freedom is ... not to be overridden by the fact that the work is done in the course of University employment'.
Much of the rest of this Ordinance appears intended to claw back such over-generous prodigality and presents us with 'conditions ... where University staff must agree not to release information about their inventions in advance of applying for intellectual property protection, and this can be required of them ...' (Note to Regulation 2, p. 599, my emphasis). Hence 'University staff may also be required to undertake to maintain the confidentiality of any results arising from such sponsored or collaborative research on agreed terms' (Regulation 9). The Research Services Division (RSD) is already implementing such a draconian policy, as Dr M. R. Clark noted in his remarks at the Discussion of 21 October 2003 (http://www.admin.cam.ac.uk/reporter/2003-04/weekly/5938/18.html): 'RSD have promised that for a period of three years from the date of the agreement RSD would offer my relevant publications for review … (as this has already been quoted I shall skip the rest of that paragraph). If this is not censorship and a blatant denial of that 'fundamental entitlement ... to place the results of their work in the public domain' it manages to look uncommonly like it.
And note, Deputy Vice-Chancellor, that this encompasses not just employees of the University but also our paying customers, our students. Regulation 11 acknowledges (how could it do otherwise?) that the University 'has no initial entitlement to intellectual property rights in material invented, created, or devised by students', yet manages a self-contradiction in the space of that very paragraph. Students will be expected to sign an undertaking 'to assign [their] intellectual property rights to [the University] on enrolment' (I admit I do not know what 'enrolment' means in this context) yet apparently they are permitted to refuse, and 'may be offered an alternative project on which to work. The University will ensure that the student's choice does not interfere with the assessment of her or his academic performance.' I am grateful for the implied assurance that such alternative projects, free from IP strings, will always be available on tap. I am also grateful to Professor Cornish, if I understood him aright, for the assurance that much of what I have said is due to a misunderstanding of his Committee's unclear language. We shall await eagerly an unambiguously clear and coherent re-statement for a further Discussion.
The media are suggesting that this debate is about greedy dons,1 but it is not (I am glad of the assurance that it is not about a greedy University either; that possibility might otherwise have worried some of our members). This is an issue about fundamental freedoms and the dangers of censorship. However, I am puzzled by the budgetary aspects of these proposals. They are all presented as though every discovery made here is a potential gold mine merely waiting to be exploited - exploited, that is, by the University. Yet as previous speakers have emphasized the great majority of successful patents will make very little financial profit; many will fail to recoup the large legal and start-up costs. With initial fees of the order of £10,000, we shall not need many submissions under this scheme to find the University's coffers being rapidly drained long before there is any possible hope of resultant revenue streams. The University's profligacy with legal fees is legendary; should there not be some cap on that of RSD? And if there is, will that not by Murphy's Law mean that the most likely candidate to make our fortune will be turned down simply because we lack the ready cash? On the morning this Discussion began, Dr Clark told the BBC 'Today' programme how GlaxoWellcome was prepared to drop the patenting of CAMPATH, perhaps our most successful recent patent. Can we be confident that the administrators in RSD will understand any better?
There are many other problems with this Report. For instance, the procedures for handling conflicts are weighted entirely against the staff member (the members of the final appeal Tribunal are all 'designated by the Registrary'), and fail entirely to cover a situation in which collaborators disagree about whether a project should be placed in the public domain or patented. The section on typographical and database rights (which 'belong initially to the University ... when they are made with University equipment', Regulation 7) may well startle those indexing their books, or even using, say, Microsoft Word to typeset them, and we could perhaps do with further clarification from Professor Cornish here too.
If we grace them, these proposals will create a complete change in our academic culture. From now on instead of being able to concentrate on research, staff and students may be forced to be constantly looking over their shoulders at the Men in Grey of RSD. In which case Cambridge will be in danger of suffering far more than mere collective intellectual torticollis.
1 Independent, 10 May: 'Cambridge dons fight for patent earnings', http://education.independent.co.uk/news/story.jsp?story=519694; Guardian, 10 May: 'Cambridge dons are fighting university proposals that they claim will rob them of the chance to profit from their inventions and discoveries', http://education.guardian.co.uk/higher/research/story/0,9865,1213498,00.html).
Professor R. J. ANDERSON:
Deputy Vice-Chancellor, Cambridge's pre-eminence, as Europe's top university, stems from a deep well - a spirit of respect for the individual, tolerance for differences in philosophy, a respect for freedom of thought as the precondition for creativity, and a spirit of common purpose that unites scientist, linguist, medic, and scholar in a common enterprise to push back the edge of darkness. Our secret recipe is a blend of autonomy and solidarity. Everything else follows from this.
This Discussion unfortunately seems to have opened with an attempt to unleash the politics of envy, and an imputation that our side of the House is interested in academic freedom purely as the freedom to make money by exploiting research students. Having never made any money personally from patents, I will leave those issues to others and rather take heart from Gandhi: 'First they ignore you, then they laugh at you, then they attack you, then you win.'
In 2002, we were presented with an IP policy that at least had the virtue of intellectual consistency - the University tried to take everything, from the engineers' patents through the biologists' database rights to the copyrights in our historians' non-fiction books. Senior people talked openly about consulting being next. This House protested, so the Old Schools asked the Cornish committee to figure out how much they could get away with.
The proposal now before us appears calculated to divide the academic community. Biologists will be hit by the claims to database rights in their genome sequence data; engineers and physicists will suffer from the loss of patent rights; botanists from the loss of plant breeders' rights; and online projects will suffer if any domain names we register are subject to later pre-emption by the University. However, most copyrights are left alone, as is consultancy. Academics' side-income is to be taxed, but not all kinds of side-income. There is no suggestion, for example, that we tax private legal or medical practice. The Old Schools have learned from 2002, and now seek to inflict pain on a minority at a time.
As Professor O'Neill remarked, it is unjust to tax some activities and not others. But first let us step back and look at this in a broader context - what the Research Services Division (RSD) was seeking to achieve, whether their objectives were desirable at all, whether the proposed regulations function according to specification, and what other effects they will have.
RSD's objective is to maximize the University's income in two ways - by 'doing deals' to win large research contracts, and by taking equity stakes in new companies. So RSD wants a choke-hold on IP, to trade with funders and to bargain with venture capitalists.
Both of these objectives are misguided.
First, research grant income will be maximized when grants are sought by principal investigators rather than centrally. One reason for this is conflict of interest. Dr Clark has told us how the RSD is now making contracts with industrial funders that oblige the University to inform the funder of any University research relevant to the funder's business, and give the funder some say over publication. It is hardly surprising to hear that RSD feel they need to know what research is taking place! But if this becomes our business style, then once one professor has taken some money from Hitachi it will become difficult for another to get support from Samsung. This is a real problem - I have personal experience of a conflict in which I was doing work for VISA and a colleague in physics turned out to be doing similar, competitive work for Mastercard. So long as the individual academics are the principals, however, conflicts can be managed with just a little bit of common sense and goodwill.
Centralization may eliminate conflicts, but at a huge opportunity cost in research income, not to mention surveillance and control of our work. Although scientists in some disciplines are used to keeping lab-book records of all their ideas as well as their observations, most of us do not work that way and would find its imposition intolerable.
Second, there is no reasonable expectation that the University will make money from running a technology transfer business. As Professor Newbery has pointed out, the economic evidence for pessimism is overwhelming. So I am afraid I do not agree that RSD's objectives are reasonable or acceptable, even before we tackle the details of policy.
Next, do the proposed regulations meet RSD's objectives? I am afraid that on the entrepreneurship front they are indeed likely to enable RSD to get a veto on new business creation. Mr Lang and Mr Allott have described the likely effects from their viewpoint as local entrepreneurs. The costs will be high, both to the Chest and to the economy.
Next, will the regulations have any unacceptable side-effects? I am afraid that they will. Time limits constrain me to three issues out of many.
First, they allow some exemptions for research, but not for teaching, or for innovative work other than research, such as software development by Computer Officers - as Dr Hazel and Dr Dowling have pointed out. On the teaching front, I have a text-book based on my lecture notes, and I would prefer to update it every few years without seeking leave from RSD. I would also like to be able to take my teaching materials with me should I ever move elsewhere. I believe my situation and views are shared by a great many teaching officers across all discplines.
Second, the claim to some specialized copyrights will cause problems for all sorts of people. Dr Cross has spoken about its effects on musicians; many more of us are worried about the claim to typographical-design copyright in material made with University equipment. That not only threatens everything from Web pages to lecture slides; it also appears to carry with it an implied claim that it is the University, not me, who publishes my website, and that it is the University, rather than me, who publishes presentation slides for every talk I give. That seems the only way to square the policy with section 9 of the Copyrights, Designs, and Patents Act. But that carries ominous implications for our autonomy. Recently a University Lecturer was asked to remove material from his Web page after an unnamed third party was claimed to have objected to it; the proposed regulations would make it harder to resist such attempts at censorship.
Third, the claim of all IP capable of registration also carries some unpleasant baggage. Two of my colleagues, Dr Mycroft and Dr Norman, maintain the Norcroft compiler, and Norcroft is an unregistered trademark. The proposed regulations appear to empower the University to register the trade-mark and assume ownership of it. That is surely not right. As for the longer term, Regents knowledgeable about intellectual property will be aware that Professor Lessig of Stanford is leading a campaign for copyright to become once more a registrable right, as it was until some years ago. The Foundation for Information Policy Research, which I chair, supports his campaign. Should we win, and should the Regent House also accede to the regulations before us, then the copyright in even the historian's non-fiction books would suddenly belong to RSD. That does not seem desirable to me.
The baggage accompanying the shift in IP policy is already causing collateral damage. For example, the Board of Graduate Studies' Memorandum for Graduate Students now requires Ph.D. students to get advance permission from the Old Schools for any form of collaborative research. I have always encouraged my students to work with each other or with third parties, and they have been very productive. This, it seems, is no longer thought appropriate by Authority. In addition, the new RSD-1a form requires grant applicants to undertake to get any students employed on the grant to visit RSD and sign away their IP rights. It is disgraceful for the Old Schools to put the convenience of RSD's patent lawyers above the interests of our students.
As for the argument that 'the government is forcing us to do it', that is simply not true. I even checked with the Secretary of State for Trade and Industry to make sure.
Deputy Vice-Chancellor, these proposals will cause great inconvenience for some of our staff, and expense for some others. All of us will lose at least some of our autonomy. On that basis alone, it is necessary to reject them; autonomy is one of the foundations of our success.
I believe we must also reject them on grounds of solidarity, and set our faces completely against arguments from envy. For example, the incoming Head of the Computer Laboratory, Professor Hopper, made millions from the flotation of Acorn, and has also been involved in Virata and ARM. It is not in our interest to drive scientists of his calibre away. If we start to buy the argument that someone is unfit to be a Professor because he owns an aeroplane, then we diminish ourselves. I hope this House will join me in wishing Professor Hopper every success in his future business ventures, and also in wishing Professor Cornish all the best for the sales of his text-book. Happy landings to all.
In summary, we were much better off under the old policy. The rot started with Grace 6 of 21 March 2001 which claimed all IP in externally funded research. Professor Cornish is correct in saying that this policy places contract staff at a serious disadvantage. However, instead of dragging the rest of us down to that level, I propose that we amend the IP regulations so that they repeal this Grace and return all the IP rights claimed under it to their inventors, except where they have been sold on in the meantime. That will return Cambridge University to the tried and tested IP policy that we operated with such conspicuous success for so many years.
Professor A. W. F. EDWARDS:
Mr Deputy Vice-Chancellor, I have not entered this debate before, and as a retired University officer I do not intend now to comment on the substance of the proposals. But I did make a submission to Professor Cornish's Working Group asking that any policy be enshrined in a proper Ordinance, and I take this opportunity to thank the Working Group, and the Council, for heeding the point. Much work needs to be done on the draft, but it is a start.
Too often in recent years the Council, with an engaging political naivety, have succeeded in uniting those members of the Regent House opposed to a particular proposal with those members critical of the manner in which it has been put, with predictable consequences.
Whilst on the matter of presentation, I thought it quite wrong that the Note of Dissent signed by Ross J. Anderson, a member of the Council, did not appear immediately after the signatures of the Council members who agreed with the Report. There might have been some argument for placing all the signatures after the Draft Ordinance, but there is none for segregating them, and many readers will have been mystified as to Professor Anderson's standing. If an example of the correct procedure is needed, a peculiarly apt one is provided by the Note of Dissent to the Report of the Council of the Senate on the regulations for the conduct of business dated 24 May 1982.
Mr R. J. STIBBS:
Mr Deputy Vice-Chancellor, I speak as a retired shark. I have been associated with technology transfer since 1970 when I was a founder shareholder of applied research at Cambridge. Later I was a founder Director of Cambridge Research and Innovation and its final Chairman until earlier this year, when we wound it up and gave the profits back to the investors. I have listened with interest to all the submissions and I am struck over this afternoon and last week how few are speaking for these Ordinances. And those who do speak for them are using abstractions - they are using the words 'equity', 'consistency', 'fairness'. On the other hand those who speak against these proposals and wish to go back to the liberal regime of yesteryear are, on the whole, speaking from experience in technology transfer.
We have heard mention of Professor Andy Hopper this afternoon; associated with Andy Hopper is the name Herman Hauser. The University has had a magnificent benefaction from the Herman Hauser and Pamela Raspe Foundation which will be a great benefit to entrepreneurship in this University. Let us remind ourselves of Herman Hauser's background. We go back to the mid 80s when the BBC asked for prototype computers to be used in computer literacy programmes. The BBC gave very little time to do the bread-boarding of the prototype, and so Herman Hauser and Andy Hopper, with the enthusiastic backing of the Computer Laboratory did the bread-boarding in a matter of a few weeks and presented a just-working micro to the BBC. The rest is history. Acorn's great growth ensued, cumulating in the founding of ARM. Under the proposals that we are discussing, I consider there would be no chance of that sort of entrepreneurial activity to have got started. The bureaucracy involved in getting permission to do it would have stifled it at birth. We move forward to the 90s; we have had the benefit of Professor Holmes's and Professor Sir Richard Friend's opinions about the Ordinances. I was one of the sharks who was involved in the early days with their company, Cambridge Display Technologies; Cambridge Research and Innovation was an initial investor. And again I remember that it was a question of being swift on the feet, personal relationships between the inventors and the venture capitalists, helpful advice for the inventors and for the venture capitalists from the University's Wolfson Unit and speedy decision-making which characterized the founding Cambridge Display Technologies making it the great success it is today. So experience has shown us that the liberal IPR policy worked from 1970 until the current day. There certainly needs to be professional advice given to inventors to safeguard their and the University's interests, but when it comes to the exploitation of the IP let there be competition. If the University wishes to be a venture capitalist in its own right, let the University set up a fund and let's see if the University can do it as well as or better than others. So yet again I would urge the Regent House to ask the Council to think again, to go back to the working liberal IPR policy that has stood us in good stead for so long.
Professor M. ASHBURNER (read by Mrs S. BOWRING):
Mr Deputy Vice-Chancellor, we must thank Professor Cornish for his continued efforts to seek consensus on the very complex problem of the intellectual property rights of University officers. I welcome the statement by the Council, in Paragraph 2 of the Second Joint Report, that the Ordinance must be 'broadly acceptable' to the University.
I am delighted by the very clear and unambiguous statement embodied in draft Regulation 2. This sets just the right tone. It says that all University officers can make their work freely available in the public domain, unless they (a) offer it to the University for protection, or (b) are obliged to assign their IP to the University by virtue of the agreement they have made with their funders.
That said, I must draw attention to the fact that there is a tension between draft Regulation 2 and draft Regulation 9, and the manner in which Research Services Division (RSD) might oblige us to offer our work for commercialization. Professor Minson, in his contribution to the Discussion on 15 October 2002 (http://www.admin.cam.ac.uk/reporter/2002-03/weekly/5901/16.html) said: 'Some members have argued that the decision to exploit an invention must lie with the academic. I absolutely agree and, as I understand it, the proposed policy is consistent with control by the inventor. ... Members of the University have the right to place the results of their research or scholarship in the public domain by any mechanism, and the corollary is that the decision to exploit commercially is in the hands of the inventor. The policy statement should perhaps be modified to make this explicit.' Draft Regulation 2 is explicit, until we meet the 'However, ...'. Can we be assured that a University officer who makes a discovery, or invention, that is potentially exploitable but who decides as a matter of principle not to do so, but rather put this discovery or invention in the public domain, has the right to do so? One may well argue that one's discovery or invention would better serve the public good by public disclosure than by patent protection.
I have some other concerns about this draft. In particular, draft Regulation 7 seems to me to be dangerously ambiguous. 'Rights against copying which are accorded to investors ... belong initially to the University in cases where the University is the investor or co-investor in such products and/or when they are made on University equipment.'
I am no lawyer (nor ever hope to be), but one interpretation of this may be as follows: I determine the sequence of a segment of DNA using a DNA sequencing machine that is owned by the University. I analyse that sequence on a Sun Workstation that is owned by the University. I place that sequence in a database that I have compiled, for the public good, using a computer owned by the University. Under Regulation 7 the rights of copying that data are now owned by the University.
In an answer to an e-mail from me concerning this worry, Professor Cornish replied (and here I hope that he will forgive me quoting his e-mail to me): 'It was certainly not our intention that the freedom to place information and results in the public domain by virtue of Reg 2 should be compromisable by any assertion of the (wretchedly complicating) database right.' That is very reassuring, and I very much hope that this ambiguity can be removed from the next draft.
That the regulations are not ambiguous is very clearly important. I wish to highlight one particular concern if ambiguity remains, indeed this concern goes beyond draft Regulation 7. Ambiguity may be exploited by those in positions of power and authority within research groups to intimidate their younger, unestablished, colleagues. Research supervisors are well known to follow their own agenda. This agenda may well conflict with the best interests of their students and fellows. It is a duty of the University to protect younger researchers from pressure by their seniors. Mr Deputy Vice-Chancellor, don't be shocked, we all know that this happens. In cases where a graduate student or postdoctoral Fellow wish to make their discovery public, but their supervisor wishes to protect it by patent, for example, then the rights of the student should be paramount.
This is but a special example of the more general case in which two (or more) collaborators disagree about whether or not their joint discovery or invention should be protected. If the default is that such protection goes ahead, then the partner who disagrees with this policy is (under draft Regulation 9) forced to keep his or her own work secret. That is unjust.
Very briefly, I wish to highlight one other concern. Draft Regulation 10 is disturbing. Is the implication that Professor Jones of Harvard University, spending a sabbatical year in my research group, or Dr Dimitri Papadopoulos who is visiting for a week from Heraklion to do a joint experiment in my laboratory, will be asked to sign an agreement on IP? Having been in the reciprocal situation in many North American and Continental universities I have never faced such a request, and I think it would sour the Cambridge atmosphere if we demanded it of our visitors. The cost to our reputation would surely outweigh any potential gain to the Chest.
Professor W. A. BROWN (read by Mrs S. BOWRING):
Mr Deputy Vice-Chancellor, as one of its signatories, I speak in favour of this Second Report. Let me explain why.
When a researcher decides that money should be made from technological research conducted with University resources, it is reonable that the University should receive a share. The Report provides a means of managing both this and the growing demands of the funders of research for access to its results. The Report provides a procedure that involves the researchers in this process and thus protects their interests. No less important, it also defines and protects other researchers' copyright when they decide that their work should not be commercialized.
The definition of rights is unavoidably controversial, and any attempt will embody many compromises. Changed circumstances prevent a return to the pre-2001 position, a position that itself had many imperfections. In order to arrive at these new proposals, the Council and General Board have followed their well-established procedure, of which this Discussion is a part, of consulting the University widely and publicly. It has used a Working Group of experts from within the University. The results may not be wholly acceptable to all, but they provide a basis on which to build. It is important that the University accepts the burden of this Report.
Professor J. R. SPENCER (read by Mrs S. BOWRING):
Mr Deputy Vice-Chancellor, much has been made in the THES and elsewhere of rights relating to films, recordings, and settings of text which it is said the University is about to take from University staff. I believe this criticism is based on a misunderstanding of the law. Regulation 7 of the proposed Ordinance recognizes the University's property in subject-matter of this kind, which arises because copyright law creates certain types of so-called 'related rights' and accords these not to any author or artist but to the undertaking that finances the project (in the case of films, there is co-authorship with the director). Recent EU legislation has added a separate right of this type in databases. These rights are additional to any copyrights which those who create the material may have. To the extent these extra rights exist, current law already provides that, as a general rule, they belong to the University and so remain until assigned to someone else. That is the present legal position. It is not something that is about to be changed by the proposed Ordinance.
I do not know of complaints that the University is currently using the rights that it has in a manner which suppresses academic freedom. It does rely on them in order to organize the production of films and complex databases. So it should - indeed must - for these projects often involve several academic participants and many detailed issues arise, for instance over the determination and revision of content. Cases of that kind are dealt with in Regulation 25 of the proposed Ordinance and that should remain. It seems to me that much of the alarm being expressed about the University's potential use of related rights against academics could be simply assuaged. This could be done by inserting in Regulation 7 or elsewhere an obligation on the University's part to assign or to license the related rights that it holds to academics who themselves hold authors' copyrights in the material in accordance with Regulation 5.
I believe that that these related rights are in any case rather more limited in scope than the critics allege.
The sui generis database right arises only where there has been substantial investment in creation of the database. It is highly unlikely that there is substantial investment in organizing the establishment and maintenance of a database merely because the University supplies an academic with a personal computer. The archaeologist who records his collection of old relics in a catalogue will doubtless have author's copyright in the record that he makes, filled as it will be with his expert knowledge. But it is highly unlikely that the University has any claim to a separate database right.
As for the typographical format right, of which much as been made, the right only arises where a publisher has put out hard copies of a new edition, as the Copyright Act of 1988 provides in its Section 8. This is not something that the University does when an academic takes a Powerpoint presentation as part of a lecture tour. Nor, on a different tack, is it possible for the University to take away an unregistered trade mark which an academic has built up by registering it. According to the Trade Marks Act 1994, s. 5, the later registration by the University would be objectionable because of the individual's earlier right.
In this Discussion, much has been said about whether the balance that this Draft Ordinance attempts to strike is a fair one. But that is a question that depends, in part, on how the general law of the land would distribute intellectual property rights in the absence of any special rules the University may provide.
Professor Dame MARILYN STRATHERN (read by Mrs S. BOWRING):
Mr Deputy Vice-Chancellor, there is widespread interest, in both the UK and the US, in the implications of IPR regimes for 'the public domain'. Let me put the current proposal in the context of some of this foment. Following from the CODE conference held in Cambridge in 2001, and a London meeting hosted by the Duke University Center for the Study of the Public Domain in 2004, a conference on Intellectual Property and the Public Domain in January this year sought further dialogue. This is against the background of several organizations (such as Electronic Freedom Foundation, Creative Commons, GNU (free software and open source)) stimulated by concerns especially pertinent to electronic media but concerned more generally with user freedoms. UK centres working on these issues include the Queen Mary Intellectual Property Reseach Institute and the AHRB Centre for Studies in Intellectual Property and Technology Law. I mention the Duke Center as particularly concerned with academic freedoms, with the contributions of the public domain to speech, culture, science, and innovation, and with the balance needed in intellectual property systems. To have the proposal from the Council and General Board to come to us now is timely indeed.
What we have in the proposals is in microcosm (the microcosm of course being the University of Cambridge) a forward looking attempt to strike a balance between different interests, and it is one in which the interest of the public domain is openly acknowledged.
At the point when someone wishes to profit from exploiting (certain types of) IPR then the proposals put the IP into a different kind of context. This context is that of employment, and here the University becomes the party with prior interests to press. A crucial distinction is drawn between patents (that must be registered to come into force) and copyright (which does not), the University's prior interests being largely confined to the former. Indeed I welcome the clarification by which the University can be explicit about staff members' ownership of copyright in their writings. I cannot comment on the procedures being suggested for patents. But I return to the point that the fundamental principle that the researcher takes the decision whether or not material is placed in the public domain trumps every thing else. This seems to me to be a very contemporary kind of enlightenment.