Fly-sheets reprinted

The following fly-sheets, etc., are reprinted in accordance with the Council's Notice on Discussions and Fly-sheets (Statutes and Ordinances, p. 114).

VOTING ON REGULATIONS TO GOVERN INTELLECTUAL PROPERTY RIGHTS IN THE UNIVERSITY

An Arts and Humanities Flysheet

We, members of the Schools of Arts and Humanities and Humanities and Social Sciences, believe that the Grace on Ownership of Intellectual Property Rights is widely welcomed in the University community and urge members of the University to vote in its favour. It embodies policies which are more generous to university staff than those operating in other leading British universities. In particular it contains a crucial guarantee of the freedom of academic authors to publish their written works by according them ownership of the copyright in them. If that right were instead to be in the hands of the University, it would have the power to censor publication. While doubtless it would only use such power in unusual cases, there would always be the temptation to do so, whenever the material was open to objection on political, scientific or scholarly grounds.

We understand the reasons why it is desirable to treat the right to apply for patents differently. The proposed amendments deal mainly with that aspect of intellectual property. We are not convinced that the amendments will result in a fairer balance of interests than those contained in the Council's proposal. The amendments aim to improve the position of those not bound by any terms of a research grant which require them to treat IPRs arising from their research in specific ways. But the amendments thereby introduce a division between those who are bound by external grant conditions and those who are not.

The claim has been made that if inventors without external funding have to give up any rights or control over exploitation, and so have to share revenue with the University and their Department, leading scientists will not come to Cambridge, and that those already here will leave. This assertion is pure guesswork, and one which we do not find credible. Those who do their research under external funding requirements accept such arrangements and continue to work at the University. They in fact form a very substantial proportion of Cambridge researchers. The proposed Ordinance aims to place the two groups in broadly equivalent positions, as well as securing the obtaining of patent and similar rights, and ensuring that all who should have a share in these, including students, are accorded it.

Although patent rights are, in general, less relevant to our School than to the rest of the University we nonetheless have an obligation to the wider University to support policies which provide equitable treatment. We are particularly alarmed by the detrimental effect the proposed amendments would have on the ability of the University to arbitrate in disputes and safeguard the interests of staff and students alike.

We urge members of the University to vote in favour of the Ordinance in its unamended form.

We, the undersigned members of the Schools of Biological Sciences and Clinical Medicine, urge the Regent House to consider the operation of research within our two Schools when deliberating IPR policy. The policy put forward by the Council and General Board would provide clarity; the amended policy would be detrimental.

Much of our research is conducted by teams of academics, post docs and research students. The vast majority of this work is funded, often in combination, by Research Councils and Medical Charities. While it is not the primary aim of our research to generate commercially exploitable results, nevertheless, our funders place obligations on us as an institution to protect and exploit research results where appropriate.

The policy put forward by the Council provides a framework where group members are treated equally, where benefits are shared in an open and fair manner, and includes a right of appeal to staff and students. It would be transparent to all and satisfy our funders.

In contrast, approval of the amended IPR policy would lead directly to the exclusion of research students from working informally within these teams; to the implementation of a system whereby every employee would have to sign an agreement acknowledging the terms of every research contract with which they might be associated; and, possibly worst of all, to research groups whose individual members might have radically different intellectual property rights. These are all highly undesirable outcomes and strong reasons for accepting the Grace and rejecting the amendments.

When held to account by our funders, we do not wish to inform them that our only control over intellectual property practices in the University is through the courts; this too would be a direct result of the proposed amendments to the IPR policy.

We therefore urge you to approve the policy in unamended form.

Flysheet for the Grace on IP Rights

The intellectual property regulations proposed by Council contain many useful elements, but the details remain seriously flawed.

First, the regulations discriminate against students. Many externally-funded research students end up with few rights. The amendments will give students parity with academic and research staff. They will also give equal rights to college-funded students and to college fellows.

Second, we need to own copyright. Only this guarantees our ability to publish. The Council's regulation 7 supports this in principle, but in practice the University will still acquire many copyrights from staff and students because of the default conditions of funding bodies. Although regulation 10 returns recording rights and database rights to their creators, this is not done for the two most important rights: literary copyright and software copyright. The amendments will ensure that all copyrights acquired by the University are treated equally and returned automatically to their creators.

Third, the proposed regulations will discriminate against academic staff in science and technology by removing the traditional right of inventors to patent their inventions. The increased involvement of Cambridge Enterprise in new business formation will also have a chilling effect on the Cambridge Phenomenon. The amendments will make this involvement strictly optional, restoring the previously successful regime that has generated substantial economic growth.

Fourth, the Council's regulations will cause problems for academic-related staff such as computer officers, technical officers and librarians because the right to place material in the public domain is restricted to 'research'. The amendment extends this right to all work undertaken by any member of staff. This will ensure that everyone can contribute to free software, technical standards bodies and open publication projects.

Finally, there is wide agreement that the 2001 policy was wrong to claim almost all IP from all externally-funded staff and students. The Council's proposed regulations fail to give back this unjustly claimed IP. The amendments will explicitly return it to its creators, and also extend the appeals process to disputes arising out of that policy.

We therefore urge you to vote in favour of the amended Grace.

Draft Ordinance in IPR

We, the undersigned, are members of the Schools of Physical Sciences and Technology. We write to support the proposed policy of the Third Report of the Council and General Board on the Ownership of Intellectual Property Rights (IPR). It presents a liberal, fair and workable set of proposals, which will avoid the current confusion that can hinder both external support for research and exploitation by the inventor. Furthermore, it is an explicit statement of the rights the individual has (rather than these being inferred from interpretation of contracts of employment - and interpretation and reinterpretation elsewhere in the UK has been far less favourable to the individual than as proposed here).

We see the principal elements of the policy to be that:

(i) Copyright is owned by the creator (with limited exceptions relating to internal operation of the University - such as examination papers). This is our right to publish. Freedom to publish transcends the obligations concerning non-disclosure that attend the process of getting patent protection.

(ii) The filing of patents is brought into a workable framework. The University will be the owner, but the creators/inventors will determine the exploitation route, will take as large (or small) a part as they want in the process, and will be substantial beneficiaries.

The University needs to own, in the first instance, in order to be able to determine who the inventors in a patent are. It cannot be right that a member of the University cannot turn to the University when finding that a colleague, student or supervisor has filed a patent based on their ideas! Clarity about inventorship and ownership is also vital when seeking to exploit - external investors or licensees will not attach value to a patent without it.

(iii) The policy provides a framework for students. When their work is independent, it is their own. However, particularly in our two Schools, students frequently work within research projects where funding for capital and running costs come from external contracts, which carry with them obligations to exploit. In such circumstances it is appropriate that students be treated in the same way as academic staff and post-doc researchers, and the policy provides for this. We consider that it is very important to have a mechanism which allows all parties to know where they stand - the current position is often confused and can lead to disputes.

(iv) The policy recognises the distinction between the University (which acts as employer and regulator of fair and reasonable conduct) acting through the Research Services Division, and Cambridge Enterprise (which is soon to be set up at arm's length from the University), and which is there to provide support for exploitation. We are pleased to see that Cambridge Enterprise will not have a monopoly - those who choose to work outside it are free to do so (regulation 21). We are also pleased to see the introduction of time limits in which decisions must be made by RSD and Cambridge Enterprise in response to disclosures.

(v) A dispute resolution mechanism is established (the Technology Appeals Tribunal)

This report is very different to the earlier report (2001), which many of us criticised very robustly. It has now been given very careful scrutiny, and presents a workable and practical policy. The proposed amendments, while they work within its framework, introduce a number of significant problems, and would undermine the operation of the policy. In particular, the new regulation 18 undermines the University's position in that it no longer gets to know about all patents filed. It allows the inventor to file independently if, in his or her view, there are no third-party contractual obligations and no one else is an inventor. Furthermore, the Technology Appeals Tribunal would not be in a position to intervene in a dispute over inventorship or division of benefit where the right to file does not lie with the University. Finally, by mandating that only third party agreements can affect rights to patent, the amendments create an environment in which individuals are treated differently depending on their sources of funding, even if they are working in collaboration. This cannot be right.

We consider the policy as presented by the Council and General Board is appropriate, and that the proposed amendments are not needed, and indeed, would cause operational problems. We urge you to approve the Grace in unamended form as proposed by the Council and General Board.

Signatories:

Third Joint Report of the Council and the General Board on the ownership of intellectual property rights

The University, as an employer, must act fairly and play its part in maintaining mutual trust and confidence with its employees.

The University, as a charity, must not give away what it owns unless for good and sufficient reason. In that regard, the members of the Regent House, who are mostly employed by the University, when voting on Graces must act as charity trustees. They must set aside any potential self-interest in the legislation before them, and have regard solely the interests of the University. Like any other charity, the University must be able to justify its actions. Generally speaking, the key to such justification is to show that the University has acted in accordance with commonly accepted practice.

As with any other employment, the general position in law is that the employer owns the intellectual property rights created by its employees.

The Council's Report seeks to define in clear terms the arrangements for dealing with intellectual property rights created by its staff and students. In brief,

• the University's contractual obligations to the funders of its research are to be protected;
• property in copyright is to go to the creator of the work; and,
• following commonly accepted practice, patent rights are to remain initially with the University, though the control of exploitation will rest with the inventor.

There is a profit-sharing arrangement for the inventor on a basis as generous as any used by our peers in the U.K.

The amendment, however, places property in patent rights with the inventor.

There are two objections to that:

(a)

The University must be able to show that a proper balance has been struck and that it has acted as a reasonable institution would. We believe that, in giving up the patent rights, the amendment gets that balance wrong and cannot be justified.

(b)

The amendment renders ineffective the protection provided to staff and student inventors alike through the cost-free resolution of disputes and assertion of rights by means of the University Technology Referee and the Technology Appeal Tribunal. Although the amendment leaves that structure in place, the University will no longer be able to enforce the decisions of the Referee or the Tribunal because it will not hold the patent rights.

We urge you, in the interests of the University, to approve the Council's recommendation and to adopt the even hand that the Council have sought to achieve.

Third Joint Report of the Council and the General Board on the ownership of intellectual property rights

As past and present members of the Board of Graduate Studies we consider the Third Report on the ownership of Intellectual Property Rights to offer an important protection over a long-standing source of confusion and vulnerability for both research students and their supervisors. We welcome the clarification of intellectual property rights that is provided by the Report. We welcome the procedure offered by the Technology Appeal Tribunal whereby these rights can be defended, and also the provision for a student representative to serve on the Tribunal when referral involves a student.

The proposed amendment denies such protections in cases where the research is not externally sponsored, because it places any patent rights outside the scope of University procedure. Furthermore, because the amendment removes any obligation to disclose to the University that a patent had been applied for, a supervisor could seek to patent work carried out in collaboration without informing his or her student, and vice versa.

Regulation 14c in its unamended form formalises the relationship between students and their supervisors working in research collaboration in which there is no third party sponsorship. We firmly believe that such arrangements are necessary and should be made clear to all parties at the earliest possible point in the research collaboration.

We urge our colleagues to support the Third Report and to vote to approve the Grace in unamended form.

Grace 1 of 5 October 2005: Flysheet

As Professors of Law we urge members of the University to vote for the Grace containing the revised Ordinance on Intellectual Property Rights and thus to reject the proposed Amendments to it. The Grace is highly desirable, first and foremost, because it puts explicit provisions on a complex subject into a governing regulation rather than a mere policy. At the same time it removes the issues from the operation of the general law, which, as to inventions and writings of academic employees, is far from certain in scope. If we do not get matters clear for ourselves, we risk a court interpreting the law so as to give the University IPR ownership without qualification, or government intervening with a restrictive law on academic IPR.

The Grace strikes a fair balance which is overall more favourable to individual inventors and creators than in comparable British universities. So far as concerns copyright and other rights which do not require any registration or grant, it gives University staff initial ownership of the rights, with only limited exceptions (see Reg. 2, 7-10, 29, 30). As for rights that do require a formal grant (notably patents for inventions), it provides for the University to own the right to apply and the eventual patent (see Reg. 6). That has to be so where an agreement between the University and an external research funder requires it (hence Reg. 2). It is right that it should equally be so in cases where there is no external funding and the invention made by a staff member results from his or her general responsibility to do the research.

The University's ownership of patents in both types of case forms a platform for a raft of advantages to the inventor secured by other provisions of the Grace:

-	It guarantees the freedom of researchers to place their results in the public domain unless that would breach some professional or similar obligation or a condition of external funding requires otherwise (see Regs. 2, 4).
-	When the researchers decide instead to seek commercial exploitation, the Grace gives them considerable power to decide how rights should be exploited once they are acquired (see Regs. 18-26). At the same time, by requiring discussions with the University about this, the Grace institutes a procedure for ensuring that all who have a claim to be considered inventors are brought into the discussion. If this is not done, individuals may acquire patents for themselves which it may take long and complex litigation to rectify.
-	The Grace provides for visitors, associates and students, where appropriate, to undertake in advance to be subject to conditions similar to those affecting University employees under the Grace and in consequence to give them similar rights. In the absence of these specific arrangements, none of these categories of people are within the Grace and their rights to all IPRs are unaffected by it (see Regs. 12-14).
-	In deciding on the course of exploitation, the Grace ensures that conditions imposed by external funders in their agreements with the University are respected. If this is not made absolutely clear, funders may well be reluctant to support research at Cambridge (see Regs. 2, 6, 28).
-	The Grace entitles academic inventors to a considerable share of revenue from patents and defines the shares of the University and Departments. The University thus acquires an entitlement to part of the returns, whether the staff member or members are working under external funding or do the research as part of their general course of employment (see Regs. 21, 25 and Schedule).
-	Ownership by the University prevents some members of a research team from getting to the doors of Patent Offices ahead of others. Disputes about inventorship between different claimants can be referred internally to a Technology Referee and settled with reasonable despatch (see Reg. 15, 32-39). Without this the only recourse is to litigation, an expense and distraction that junior staff and students in particular will find a deterrent.

The Amendments should be rejected principally because they perpetuate a distinction between inventors who are under external funding conditions concerning University ownership and those who are not. The latter alone would remain free (i) to keep knowledge of their inventions from the university, (ii) to decide on exploitation without even notifying, let alone consulting, the University, (iii) to keep the entire returns from their inventions for themselves (for these points read together the Amended versions of Regs 7, 18 and 21). The object of the amendments is to allow some University inventors a privilege, which others cannot have, thanks to the source of their research grant. The fairest approach to this root issue is to make all inventors subject to arrangements under which the University becomes entitled to some part in financial returns on staff inventions. The Amendments would obliterate that essential equity. The proponents object to the transfer of patent rights to the University, but they offer no other means by which the University can be assured of any income.

There are obscurities in the detail of the Amendments. For example, it is unclear what has to happen in order for an external funding agreement to affect a staff member (see the Amended Reg. 7). What the basis is for referring issues involving a non-externally funded researcher, visitor, associate or student to the Referee or Appeal Tribunal is obscure (see the Amended Reg. 15). Many disputes would therefore have to be resolved in the courts. It is the Grace that should be approved, not the Amendments.

Clarification of Intellectual Property Rights

It is right and proper that the University should clarify the position on Intellectual Property Rights, and that members of Regent House should give serious consideration both to the proposed policy of the Council and to the alternative, amended policy. However, some of the arguments being advanced rest on optimistic interpretations, or misunderstandings, of the policies.

Proponents of the Council's policy argue that it would provide for equal treatment of all staff and students working in collaborative research. However this is not quite accurate. Under Regulation 2, the policy is overridden by any agreements made with third party sponsors. The 3rd Report on IPR gives examples of the conditions imposed by sponsors: some only require University ownership of patents, while others claim copyright too. Thus, even under the Council's proposed policy, different members of research teams will be under different obligations. The amended policy seeks to ameliorate this position by ensuring that the University will return copyrights to their creators after the fact. This will provide less unequal treatment than the Council proposals. It will protect academic freedom while not interfering with the proper exploitation of patents that the University acquires through such sponsorship.

It is also suggested that the amended policy would exclude staff and students from working in collaboration. But the amended policy will put staff and students in substantially the same position as under our 1987 IPR policy, which did not cause such problems. The Council policy, on the other hand, would inhibit collaboration with academics from elsewhere. Visitors to MIT, for example, are required to assign to MIT the patent rights to any ideas they have while there; Regulation 6 of the Council policy would prevent Cambridge staff from signing such an agreement even if they wished to. Such IP tussles are a growing headache for academics; we should not make it worse.

Similarly, a suggestion that the amended policy will lead to litigation also lacks foundation. The amendments retain the entire appeal process and extend its scope to disputes arising from earlier IP policies. It is also inaccurate to suggest that the University needs to own IP in order to arbitrate. The majority of IP disputes in the University relate not to patents but to copyright - typically to whose names should appear on a paper and in what order. By having an appeals process whose scope includes 'the commercial exploitation of any intellectual property rights, or the subject matter to which such rights relate', both the Council policy and the amended policy provide a neutral forum in which such disputes can be resolved. If the referee could arbitrate only IP owned by the University, this useful service would be lost. The referee would also be unable to arbitrate where an interest in a patent belongs to a self-funded student, to a collaborator at another institution, or to a funder. This would obviously be undesirable.

It has been suggested that the Council's policy would protect student rights better than the amended version. However, most research students are externally funded, and the large numbers funded by the UK Research Councils have a default position that the University owns all their IP, unless stated otherwise. The Council policy fails to state otherwise in the necessary terms.

As a result, many research students will end up with all their IP owned by the University, unlike the present policy - which at least gives them copyright in 'normal academic forms of publication'. This is a serious flaw in the Council's policy, and the amendments deal with it.

Finally, we invite the Council in its response flysheet to clarify an apparent contradiction in its proposal. Regulation 2 says that nothing in the policy takes precedence over an agreement with an external funder, while Regulation 28 says that staff will retain copyright unless the funder explicitly requires to the contrary. Regulation 2 appears to trump Regulation 28; was this the intention? Does Regulation 2 also trump Regulation 4, which apparently gives staff the right to publish? If so (and in any case where a funder insists that the University own 'all IP'), who will be authorized to sign a copyright release for the publication of an academic paper based on that research? Will it be RSD, the Head of Department, the PI, or the authors?

The Council policy is flawed in many respects. However, the evidence is that the 1987 IPR policy was successful. Cambridge has led the UK in technology transfer. The amended policy will reaffirm the 1987 principles within a clear framework.

We therefore urge you to vote for the amendments.

Third Joint Report of the Council and the General Board on the Ownership of Intellectual Property Rights

Student Flysheet

Drafted by Alex Broadbent (Graduate Union President) and Ruth Keeling (Graduate Member of Council and General Board)

Student opinion on the issue of IPR is diverse and the signatories of this flysheet do not claim to represent the full range of student opinion with this note. However, we are concerned that there are certain misconceptions about the impact of the University Council's proposal on student intellectual property rights. We hope to clarify the impact of the proposal as it relates to students, by making the following points in support of the Council's unamended proposal. (Bracketted numbers refer to clauses in the unamended proposal.)

1. The proposal, which asserts University ownership of intellectual property in certain cases involving graduate students, primarily concerns patents with significant commercial value: other intellectual property rights belong to the creator (subject to third party agreements) - in particular '…copyright and moral rights in literary dramatic, musical and artistic works; copyright in software; copyright arising from authorship of a database; performers' rights; unregistered design rights; and rights over information…' (7).
2. For students, therefore, the default position remains that intellectual property rights rest with the student (14), with some limited exceptions.
3. Furthermore, under the proposal in its unamended form, the right to apply for a patent will also usually lie with the student.

The exceptions are:

1. when a student has entered into a third party agreement, especially with a sponsor (14a&b); in this case IP ownership may rest with the sponsor or be assigned by them to the University;
2. a student may also be required to assign intellectual property to the University where a student is working in collaboration with others in a manner that gives rise to joint or interdependent intellectual property (eg. in a research group) - in which case the student will be informed 'at the start of their research' if a situation is likely to arise in which she will be required to sign the right to patent over to the University (14c).

Concerning these exceptions, the signatories note:

• that it is important that a clear and consistent position on IPR is maintained in cases of collaboration;
• that the dispute tribunal system described in both amended and unamended proposals will only be able to operate if the University owns the rights in the first instance, as in the unamended proposal;
• that the University can reasonably claim to play a key role in facilitating and supporting research collaboration;
• that creators acting collaboratively retain the right to require the University to return all property rights to them (provided they are acting jointly) at a cost of 15% of royalties and/or rights (Schedule);
• That students will have access to the same support as is offered to staff by the University in commercialising their research, and will be entitled to royalties in the same proportions.

Finally, the signatories believe that the University community as a whole will profit from a clear and consistent approach to IPR, and we feel that the Council's proposal strikes a careful balance between individual and collective rights to benefit from the stimulating academic environment we work in. We would encourage the Regent House to approve the Council's Grace in its unamended form.

STATEMENT ON BEHALF OF THE COUNCIL OF THE UNIVERSITY

Ballot on Intellectual Property Rights

This statement is written on behalf of the Council in response to the flysheets concerning Grace 1 of 5 October 2005 and the amendments proposed to it.

The Council welcome the support of a wide range of staff in the several Schools as well as the support of members of the Board of Graduate Studies and representatives of the student body for the Grace in unamended form.

The purpose of this statement is to support strongly the proposals in the Third Report. The arguments supporting the proposed amendments are unconvincing.

This statement clarifies certain misunderstandings in the two flysheets signed by R. J. Anderson and others [p. 310] and by A. C. Aitchison and others [p. 314]. In both flysheets there is a general misconception that the University can introduce a policy which unilaterally overrides contracts or agreements that have been entered into with external sponsors. The Council cannot support any such action which might place the University in breach of contract.

Anderson and others, in their flysheet, state that the regulations discriminate against students. This is not so as Regulation 14 provides the same rights to a student as to University staff if he or she is working in collaboration or is bound by a sponsorship agreement. In any other circumstance ownership of IPR lies with the student. With regard to ownership of copyright, Regulation 7 provides that, unless a specific agreement has been entered into, copyright belongs to the creator(s). The proposed amendments to the regulations cannot achieve what they seem to seek: the University cannot introduce a policy which breaches the terms of agreements which it has entered into. The third point raised in this flysheet is that the 'traditional' right of inventors to patent their inventions has been removed. This right has only applied to persons who are not externally funded. This arrangement is inherently divisive and it is a major aim of the new policy to eliminate this division. The concern regarding the involvement of Cambridge Enterprise is unfounded: Regulation 21 makes the use of Cambridge Enterprise optional. The fourth point refers to academic-related staff, but it is not clear that there will be problems in the application of these regulations for such staff; staff dissatisfied by a decision under the regulations will be able to refer the issue to the University Technology Referee (and, if necessary, the Technology Appeal Tribunal) to resolve matters.

If the Grace is approved it is expected that the new policy will be applied to any externally funded intellectual property created since 2001 that is not already subject to an agreement. The proposed amendment has the potential to put the University in breach of such agreements.

Aichison and others, in their flysheet, ask how the policy would relate to staff who visit other institutions. The flexibility introduced in Regulation 5 of the policy, where 'the time when and the place where' the research is carried out is taken into account, was intended to cover such concerns. The Council expect that staff or students visiting other institutions would abide by the policies of those institutions. The flysheet also refers to the scope of the appeals process. Under the proposed policy the remit of a Tribunal is clear. This is not so under the proposed amendment. The flysheet requests clarification of the link between Regulations 2 and 28. Regulation 28 clarifies and elaborates the procedure in Regulation 2. Regulation 2 overrides Regulation 4.

It is expected that the policy, if approved, will be reviewed after it has been in operation for a few years.

The policy gives more freedom to staff and students than those of other UK universities. It strikes a balance between the rights of staff and students, on the one hand, and the University's accountability for public funds and its role as a charitable institution, on the other.

The University is strongly urged to complete the ballot paper by placing the number 1 in the box for approval of the unamended Grace.

A.J. Badger
on behalf of the Council